814
Submitted September 30; remanded for resentencing, otherwise affirmed
November 27, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL RYAN CURRAN,
Defendant-Appellant.
Deschutes County Circuit Court
16CR36012; A167345
Walter Randolph Miller, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as
300 Or App 814
(2019) 815
PER CURIAM
During an active episode of a schizoaffective disorder, defendant repeatedly drove his car into the rear end
of a minivan (carrying the driver and five passengers). For
that conduct, the trial court found defendant guilty except
for insanity, ORS 161.295, of one count of unlawful use of
a weapon (UUW) and six counts of reckless endangerment
with a motor vehicle. All of the reckless endangerment terms
of commitment were imposed consecutively to the UUW
term of commitment, under ORS 137.123(5). Defendant was
placed under the jurisdiction of the Oregon Health Authority
while hospitalized and the Psychiatric Supervision Review
Board while on conditional release for a maximum period of
time not to exceed 11 years (five years for the UUW count
and one year for each reckless endangerment count).
On appeal, defendant argues that imposing the
terms of commitment on the reckless endangerment counts
consecutively to the UUW count was not permitted under
ORS 137.123(5). That statute provides:
“(5) The court has discretion to impose consecutive
terms of imprisonment for separate convictions arising out
of a continuous and uninterrupted course of conduct only if
the court finds:
“(a) That the criminal offense for which a consecutive
sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one
criminal offense; or
“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing
greater or qualitatively different loss, injury or harm to the
victim or caused or created a risk of causing loss, injury or
harm to a different victim than was caused or threatened
by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”
The trial court apparently imposed consecutive terms of
commitment based on a finding that, under ORS 137.123
(5)(a), each bump of the minivan indicated a willingness to
commit more than one criminal offense. In defendant’s view,
816 State v. Curran
the evidence in the record does not support that finding with
regard to the reckless endangerment counts compared to the
UUW count. Because, at trial, the state relied on the entire
course of events as the basis for guilt for all of the offenses,
the state concedes that the trial court erred. We agree and
accept the state’s concession.
The state argues, however, that five of the six reckless endangerment terms of commitment can be imposed
consecutively to the UUW commitment term under ORS
137.123(5)(b). On remand, the trial court can consider the
state’s argument on that point. See State v. Garcia-Mendoza,
