602
Submitted August 1, 2019, affirmed April 14, petition for review denied
August 26, 2021 (368 Or 514)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ZACKERIA PHILLUP BRASS,
Defendant-Appellant.
Clatsop County Circuit Court
131250; A166471
485 P3d 289
Defendant appeals an amended judgment resulting from his motion to correct the judgment, contending that the trial court erred in denying his request
to shorten his sentence. Held: Defendant’s offense of unlawful use of a weapon
“caused or created a risk of causing loss, injury or harm to a different victim” from
the victim of his offense of felon in possession of a firearm. ORS 137.123(5)(b).
Accordingly, the trial court acted within its discretion in denying defendant’s
motion to correct the judgment.
Affirmed.
Cindee S. Matyas, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, 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 DeHoog, Presiding Judge, and Mooney, Judge, and
Kamins, Judge.
DeHOOG, P. J.
Affirmed.
Cite as 310 Or App 602 (2021) 603
DeHOOG, P. J.,
In this criminal case, defendant appeals an
amended judgment resulting from his motion to correct the
judgment. As explained below, we conclude that the trial
court correctly held that defendant’s offenses had different
victims and that, as a result, ORS 137.123(5)(b) authorized
consecutive sentences for those offenses. Accordingly, we
affirm.
In 2014, defendant was convicted of five crimes,
including one count of unlawful use of a weapon (UUW),
ORS 166.220(1), and one count of felon in possession of a
firearm (FIP), ORS 166.270. The conduct underlying the
UUW charge was pointing a gun at another person. The
court ordered defendant’s sentence on the FIP conviction to
run consecutively to his sentence on the UUW conviction.
Defendant appealed, raising a number of arguments, and
we affirmed without opinion. State v. Brass, 281 Or App 780,
384 P3d 562 (2016), rev den,
361 Or 311 (2017).
After the appellate judgment issued, defendant
moved to correct the judgment under former ORS 138.083
(2017), repealed by Or Laws 2017, ch 529, § 26. As relevant
here, he argued that the trial court should shorten his
sentence based on the so-called shift-to-I and 200-percent
rules, which limit the length of consecutive sentences for
crimes committed during the same criminal episode and
against the same victim. OAR 213-012-0020(2)(a), (b); see
also State v. Johnson, 125 Or App 655,
866 P2d 1245 (1994)
(explaining the relationship between the 200-percent rule
and gun-minimum sentences); OAR 213-012-0020(5) (the
shift-to-I and 200-percent rules do not apply “to consecutive
sentences imposed for crimes that have different victims”).
The trial court rejected defendant’s argument and issued an
amended judgment that changed a no-contact provision but
did not reduce the length of defendant’s sentence.
Defendant appeals, arguing that the trial court
erred in ruling that his offenses were not committed during
the same criminal episode and, further, that the two offenses
had different victims. As defendant acknowledges, if his
offenses comprised separate criminal episodes or if there
were different victims for each offense, the shift-to-I and
604 State v. Brass
200-percent rules would not apply to his sentences, and the
court would not have been required on that basis to impose
the shorter sentence that he sought; it would follow that the
trial court did not abuse its discretion in declining to correct
the judgment in that manner. State v. Lewallen, 262 Or App
51, 55-56,
324 P3d 530, rev den,
355 Or 880 (2014) (trial
court has discretion to determine whether or not to correct
a judgment under former ORS 138.083); id. at 58 (exercise
of discretion must be within “the range of legally correct
discretionary choices”).
As explained below, we conclude that defendant’s
UUW and FIP offenses had different victims, and we affirm
on that ground.1 Accordingly, we need not, and do not, consider whether the trial court was correct in ruling that the
offenses took place during multiple criminal episodes.2
Under ORS 137.123(5)(b), a court may sentence a
defendant consecutively for a criminal offense if the offense
“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.” Defendant acknowledges that
his UUW crime had a specific victim—the person at whom
he pointed the gun—and he acknowledges that the victim
of his FIP was the public at large. He argues, however, that
those victims are not “different victims” for purposes of ORS
137.123(5)(b), because the named victim was also a member
of the public.
In State v. Gatewood, 300 Or App 21,
452 P3d 1046
(2019), rev den,
366 Or 257 (2020), which we decided after
briefing in this case was complete, the defendant argued
that, under ORS 137.123(5)(b), he could not be sentenced
1
We reject without discussion defendant’s unpreserved argument that the
trial court erred in failing to make findings to support its decision to run his
misdemeanor sentence consecutively to his other sentences.
2
The state also argues that some of defendant’s arguments are not preserved; that the court lacked authority to modify defendant’s sentence because it
had already been executed; and that, in any event, the court was not required to
modify the sentence as defendant requested even if he was correct that the sentence was erroneous. In light of our conclusion that defendant was not entitled to
the shorter sentence he sought because his crimes had different victims, we need
not, and do not, address any of those contentions.
Cite as 310 Or App 602 (2021) 605
consecutively for a theft conviction with a single victim and
a FIP conviction because, in his view, the victims of the two
offenses were not different. Id. at 22. Specifically, he contended that the state was not the victim of the FIP count;
rather, he contended, the victim of the FIP offense was “ ‘the
person or persons who have suffered financial, social, psychological or physical harm as a result of a crime.’ ” Id. at 27
(quoting ORS 131.007).
We rejected the defendant’s argument, concluding
that the state was the victim of the FIP count. Id. at 30.
We noted that “the state” was synonymous with “the public”
and “the people of Oregon.” Id. We then held that the victim
of the theft and the victim of the FIP were different for purposes of ORS 137.123(5)(b):
“Here, the undisputed victim of the theft offense was JC,
and the victim of the FIP offense—as we discussed above—
is the state. Because each offense caused or created a risk
of causing loss, injury, or harm to a different victim, ORS
137.123(5)(b), the trial court did not err in imposing consecutive sentences.”
Id.
In Gatewood, the defendant did not explicitly argue
that, because the theft victim was also a member of the
public, the two victims were the same for purposes of ORS
137.123(5)(b).3 However, our conclusion in that case that the
theft victim and the public were different victims for purposes of ORS 137.123(5)(b) forecloses that reasoning.
Resisting that conclusion here, defendant argues
that, in State v. Flores, 259 Or App 141,
313 P3d 378 (2013),
rev den,
354 Or 735 (2014), a merger case, we implicitly held
that an individual victim and the public are not separate victims. Assuming for purposes of discussion that our merger
case law can inform our understanding of ORS 137.123(5)(b)
and consecutive sentencing, we nevertheless reject defendant’s arguments.
3
The defendant did make that argument with respect to Article I, section
44(3), of the Oregon Constitution, which requires consecutive sentences to be
available for crimes with “wholly different” victims. Gatewood, 300 Or App at 24.
However, we did not reach the parties’ constitutional arguments.
Id. at 30.
606 State v. Brass
In Flores, the defendant argued that the verdicts on
a count of UUW with a firearm and a count of FIP with a
firearm merged under ORS 161.067. We first concluded that,
given the manner in which the offenses had been charged
in that case, the anti-merger provisions of ORS 161.067(1)
did not prevent the resulting guilty verdicts from merging.
However, recognizing that we were bound by the majority
opinion in our en banc decision in State v. Owens, 102 Or
App 448,
795 P2d 569, rev den,
311 Or 13 (1990), we went
on to consider whether the provisions of ORS 161.067(2) precluded merger, because the merger of these verdicts left a
single verdict that may have involved more than one victim.4
Ultimately, we rejected the state’s argument that there were
two victims for purposes of ORS 161.067(2):
“[T]he premise of the state’s argument—the single merged
conviction has two victims, the individual threatened by
the UUW-firearm and the general public—is untenable.
Because, as we hold, the UUW-firearm conviction merges
into the FIP-firearm conviction [under ORS 161.067(1)], the
correct judgment in this case would encompass only one
conviction: FIP-firearm. The UUW-firearm conviction disappears. And it is uncontested that the FIP-firearm has
only one victim: the public. Thus, there is only one conviction and there is only one victim.”
Flores, 259 Or App at 150 (internal citation omitted).
In Flores, then, we reasoned that there was only one
victim for purposes of ORS 161.067(2) because the lesserincluded offense had already merged into the greater offense
under ORS 161.067(1), and only one offense, with one victim,
remained for consideration under ORS 161.067(2). True, one
might question whether that reasoning was compatible with
the majority holding in Owens, which arguably required
a trial court to consider the potential application of each
4
ORS 161.067(2) provides, “When the same conduct or criminal episode,
though violating only one statutory provision involves two or more victims, there
are as many separately punishable offenses as there are victims.”
In State v. Gensitskiy, 365 Or 265, 293,
446 P3d 26 (2019), the Supreme
Court explained that ORS 161.067(1) and (2) apply in different circumstances;
ORS 161.067(2) does not apply at all when a defendant’s conduct violates more
than one separate statutory provision. Thus, the Supreme Court has rejected the
reasoning of both Owens and Flores regarding the operation of ORS 161.067(1)
and (2).
Cite as
310 Or App 602 (2021) 607
section of ORS 161.067 independent of the others. However,
we are certain that it did not rely on a holding that the identities of the victims of the two counts were the same.
Thus, Flores does not provide support for defendant’s
argument that an individual and the public are not “different victim[s]” for purposes of ORS 137.123(5)(b). Defendant
does not advance any other reason for concluding that they
are, and, as noted above, our reasoning in Gatewood forecloses that argument. And, in our view, that reasoning
remains sound in light of the plain meaning of “different.”
That is, although the two victims have one member in common, the public is qualitatively distinct from an individual;
the two are therefore “different.”5 See Webster’s Third New
Int’l Dictionary 630 (unabridged ed 2002) (defining “different” as “not the same : distinct or separate (from another or
from others in a group)”).
Defendant’s UUW “caused or created a risk of causing loss, injury or harm to a different victim” from the victim
of the FIP. ORS 137.123(5)(b). Accordingly, the trial court
acted within its discretion in denying defendant’s motion to
correct the judgment.
Affirmed.
5
As noted above, 310 Or App at 605 n 3, Article I, section 44(3), requires
consecutive sentences to be available for crimes with “wholly different” victims.
Our conclusion that an individual victim and the public at large are “different
victim[s]” for purposes of ORS 137.123(5)(b) does not resolve the question of what
it means for victims to be “wholly different” for purposes of that constitutional
provision.
