565
Argued and submitted January 16, 2020; reversed and remanded for
resentencing, otherwise affirmed July 28, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JOSEPH PORTER,
Defendant-Appellant.
Linn County Circuit Court
17CR44412; A167246
494 P3d 988
Defendant pleaded guilty to felony driving under the influence of intoxicants
(DUII), ORS 813.010 and ORS 813.011 (Count 1), felony driving while suspended
or revoked (DWS or DWR), ORS 811.182 (Count 2), and an open container violation, ORS 811.170 (Count 4). On appeal, he challenges the imposition of consecutive sentences on Counts 1 and 2, arguing that under ORS 137.123(5)(a),
the record is insufficient to support the trial court’s determination that defendant evinced an intent to commit more than one offense and that, under ORS
137.123(5)(b), the risks posed by DWR caused or created a risk of causing greater
or qualitatively different loss, injury, or risk of harm than DUII. Held: Because
there is no evidence to support an inference that defendant acted with a willingness to commit multiple offenses, the trial court erred in imposing consecutive
sentences under ORS 137.123(5)(a). Further, because defendant’s conduct is predicated on a single act, ORS 137.123(5)(b) does not authorize consecutive sentences
for multiple offenses that arise out of that single act.
Reversed and remanded for resentencing; otherwise affirmed.
David E. Delsman, Judge.
Erin J. Snyder Severe, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
POWERS, J.
Reversed and remanded for resentencing; otherwise
affirmed.
566 State v. Porter
POWERS, J.
In this criminal case, defendant pleaded guilty to
felony driving under the influence of intoxicants (DUII), ORS
813.010 and ORS 813.011 (Count 1), felony driving while suspended or revoked (DWS or DWR), ORS 811.182 (Count 2),
and an open container violation, ORS 811.170 (Count 4).
On appeal, he challenges the imposition of consecutive sentences on Counts 1 and 2, arguing that the record is insufficient to support the trial court’s determination that defendant evinced an intent to commit more than one offense and
that the risks posed by DWR caused or created a risk of
causing greater or qualitatively different loss, injury, or risk
of harm than DUII. We conclude that the trial court erred in
imposing consecutive sentences and, therefore, reverse and
remand.
STANDARD OF REVIEW
We review a trial court’s imposition of consecutive
sentences for errors of law and determine whether the trial
court’s predicate factual findings are supported by any evidence in the record. State v. Traylor, 267 Or App 613, 615-16,
341 P3d 156 (2014). In so doing, we recount the undisputed
facts as described by the prosecutor at sentencing with
reasonable inferences necessarily viewed in the light most
favorable to the trial court’s findings. State v. Edwards,
286
Or App 99, 100,
399 P3d 463, rev den,
362 Or 175 (2017)
(citing State v. Byam,
284 Or App 402, 406,
393 P3d 252
(2017)).
BACKGROUND
On a late June evening, defendant was driving
through Albany and nearly struck a group of people gathered on the side of the road. Witnesses reported the incident
and followed defendant, who then pulled into a mini-mart,
purchased some beer, stumbled out of the store, and got
back into his car. A responding officer saw defendant pulling out of the parking lot, hit the curb, and begin weaving
down the street. The officer followed defendant a short while
until defendant arrived at his home. Defendant had trouble
getting out of his car, and the officer observed other signs of
impairment. Defendant admitted to having a couple of beers
Cite as 313 Or App 565 (2021) 567
and eventually submitted to a breath test, which revealed
a .26 percent blood alcohol content (BAC). Defendant was
arrested and later charged with four counts, including DUII
and DWR.
Before trial, defendant filed a motion to suppress,
which the trial court denied (and which defendant does
not challenge on appeal). He then entered a guilty plea as
described above, which constituted defendant’s eighth DUII
and seventh DWR convictions, and the state dismissed
Count 3, recklessly endangering another person. As part of
the plea agreement, defendant admitted to two sentenceenhancement facts: (1) persistent involvement in similar
offenses, and (2) a .26 BAC, which was greater than typical
and caused an increased threat of harm to the public.
At sentencing, the parties disputed whether the
trial court should impose a consecutive sentence for the DUII
and DWR convictions under ORS 137.123(5), which provides
a court with discretion to impose consecutive sentences for
separate convictions arising out of a continuous and uninterrupted course of conduct only after certain findings have
been made. The state argued that the court should impose
consecutive sentences because defendant’s record illustrates his unwillingness to change his behavior. Further,
because of the admitted sentencing enhancement facts and
because DUII and DWR “contain separate elements and the
elements show and require an intent to commit separate
crimes,” the court, according to the state, was “empowered
to impose consecutive sentences for those two crimes” under
ORS 137.123. Defendant asserted that various mitigating
factors militated toward imposition of concurrent sentences,
and specifically argued that DUII and DWR “necessarily
were all part of the same course of conduct,” reasoning that
they “each occurred at exactly the same time and they each
stopped at exactly the same time.”
The trial court sentenced defendant to 22 months
for the DUII conviction and a consecutive 10-month term for
felony DWR. In so doing, the court made alternative findings. With respect to ORS 137.123(5)(a), the court found that
“[d]efendant’s willingness to drive while under the influence
of intoxicants and while suspended indicate[s] a willingness
568 State v. Porter
to commit more than one criminal offense.” With respect to
ORS 137.123(5)(b), the court concluded that,
“driving while suspended offers, I think, a minimal threat
to the community. I don’t know that there is a significant
threat just by not having a license while you drive. But
driving at a .26 [BAC] offers a risk of causing greater or
qualitatively different loss. So I find under either [ORS
137.123(5)(a) or (5)(b)] a consecutive sentence is allowed.”
On appeal, defendant raises three assignments
of error, two of which are now moot given the issuance of
an amended judgment while this appeal was pending that
defendant agrees adequately resolved those assignments
of error. Defendant’s remaining assignment of error challenges the trial court’s imposition of sentences by arguing
that the record does not support either of the trial court’s
determinations.
With respect to ORS 137.123(5)(a), defendant asserts
that there is no evidence in the record to evince defendant’s
willingness—or a “separate and distinct intent”—to commit
DUII and DWR. Defendant argues that, by driving while
intoxicated, he “concurrently—by a single act (driving)—
committed both DUII and DWR,” and, therefore, nothing in
the record “supports the inference that defendant drove to
commit DWR, as opposed to just driving while intoxicated.”
The state contends that “it was inferable that defendant was
willing to commit both felony DWR and felony DUII. A person does not have to commit the offense of DUII to commit the
offense of DWR and vice versa.” That is because “[c]hoosing
to drive in disregard of a revocation is a separate and distinct offense, with a different factual basis, from choosing to
drive while intoxicated.” Therefore, according to the state,
“the fact that defendant … committed both offenses demonstrated that the offenses were not merely incidental to each
other and that he was willing to commit each offense.”1
With respect to ORS 137.123(5)(b), defendant argues
that the trial court erred in making defendant’s DWR
1
The state also makes preservation arguments to specified portions of defendant’s arguments on appeal; however, we need not address those arguments
given our disposition on arguments that were preserved. Accordingly, we do not
address the state’s preservation challenges.
Cite as 313 Or App 565 (2021) 569
sentence consecutive to the DUII sentence based on a finding that the “DUII created a risk of ‘greater or qualitatively
different loss’ than DWR.” Defendant asserts that, because
“defendant’s convictions for DUII and DWR were predicated
on the same act—defendant’s driving—the harms caused by
defendant’s conduct were the same.” The state remonstrates
that DUII and DWR involve a risk of causing qualitatively
different harms. That is, defendant
“harmed the state by disregarding the revocation of his
driver’s license and driving on the public roads despite
being prohibited from doing so. Although that harm was
abstract and may have amounted to ‘a minimal threat to
the community’—as the trial court put it—that was the
actual harm caused by defendant’s regulatory crime given
its nature.”
By contrast, the “risk of harm from defendant’s felony DUII
offense … was qualitatively different” because “[t]he legislature enacted that prohibition to protect against the risk
that an intoxicated driver would cause an accident that
causes death, physical injury to persons, or damage to property.” For the reasons explained below, we agree with defendant’s arguments on both of the trial court’s alternative
findings.
ANALYSIS
ORS 137.123 provides, in part:
“(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
570 State v. Porter
by the other offense or offenses during a continuous and
uninterrupted course of conduct.”
As noted earlier, the trial court made alternative findings in
support of consecutive sentences, which we address in turn.
ORS 137.123(5)(a) is, “in many ways, amorphous—
and perhaps inscrutable.” State v. Anderson, 208 Or App
409, 415,
145 P3d 245 (2006), rev den,
343 Or 33 (2007).
Nothing in the statute “defines the phrase ‘merely incidental.’ Nor does anything in the statutory context or legislative
history provide guidance[.]” Id. at 417 (footnote omitted). In
Anderson, however, we were able to glean “some guidance”
from our past decisions. Id. In that case, we distilled three
“instructive, albeit hardly conclusive, principles” after tracing the statute’s history and evolution:
“First, the determination of whether a defendant evinced
the requisite ‘willingness to commit more than one criminal offense’ is, as with any other determination of culpable
mental states, innately factual. That is, that determination
is a product of the ‘discrete facts’ of each case and inferences reasonably derived from those facts.
“Second, the fact that two crimes share a common motivation, or that one crime motivates the other, is not dispositive of whether one is ‘merely incidental’ to the other. …
“Third, … the fact that the defendant could have committed one offense without committing the other demonstrates a willingness to commit both.”
Id. at 417-18 (emphases and citations omitted).
We have also observed that when a defendant “commits two offenses by the same act undertaken to achieve the
same purpose, in the absence of explicit evidence of multiple
intents, consecutive sentences are not authorized because
the two offenses are so inextricably intertwined” that the
consecutively sentenced offense is necessarily incidental to
the more serious crime. Edwards, 286 Or App at 103 (emphasis, citation, and internal quotation marks omitted). If a consecutively sentenced offense is “temporally or qualitatively
distinct” from the more serious offense, “such evidence may
support an inference that the commission of one offense was
not merely incidental to the other.”
Id. Ultimately, “unless
Cite as
313 Or App 565 (2021) 571
the record contains discrete facts supporting an inference
that a defendant acted with a willingness to commit multiple offenses,” imposition of consecutive sentences under
ORS 137.123(5)(a) is improper. Id. at 104 (internal quotation
marks and citation omitted).
As presented by the facts of this case, the trial
court erred in concluding that DWR is “temporally or qualitatively distinct” from DUII. That is, there is no evidence
of multiple intents or discrete facts supporting an inference
that defendant acted with a willingness to commit multiple
offenses. Here, the facts supporting the DWR conviction are
“so inextricably intertwined” with the facts supporting the
DUII conviction that the DWR is “merely incidental” to the
DUII offense. Both of defendant’s convictions are predicated
on a single act: driving. Both offenses began when defendant started driving and ended when defendant stopped
driving. This case would be different if there was evidence
that defendant first drove without being under the influence
and then later drove while under the influence. In that situation, there may be an inference of a willingness to commit
multiple offenses. Under the discrete facts of this case, however, defendant drove while revoked and drove while under
the influence of intoxicants while his driving privileges were
revoked. Those facts, standing alone, do not suggest that
defendant intended to commit DUII and also commit DWR.
Thus, because there is no evidence to support an inference
that defendant acted with a willingness to commit multiple
offenses, the trial court erred in imposing consecutive sentences under ORS 137.123(5)(a).
We now turn to the trial court’s reliance on ORS
137.123(5)(b), which provides a trial court discretion to
impose consecutive sentences when one offense “caused or
created a risk of causing greater or qualitatively different
loss, injury or harm” than another offense. In making the
required factual findings,
“a court must (1) determine which offense is the offense for
which a consecutive sentence is contemplated; (2) compare
the harms—real or potential—that arose from that offense
with those that arose from the offense to which it will be
sentenced consecutively; (3) determine whether the offense
572 State v. Porter
for which a consecutive sentence is contemplated caused
or risked causing any harm that the other did not; and, if
so, (4) determine whether the harm that is unique to that
offense is greater than or qualitatively different from the
harms caused or threatened by the other.”
State v. Rettmann, 218 Or App 179, 185-86,
178 P3d 333
(2008) (footnote omitted).
In Rettmann, the defendant cut his five-year-old
son’s wrists. Id. at 181. The victim survived, and the defendant was charged and convicted with attempted aggravated murder and second-degree assault and sentenced to
consecutive sentences under ORS 137.123(5)(b). On appeal,
the defendant challenged the imposition of consecutive sentences, arguing that “the assault and the attempted aggravated murder were predicated on a single act, … neither
caused any harm that the other did not.”
Id. at 183. We
agreed with the defendant’s argument, concluding that “[a]
single act produces only one set of harms, even if the act
constitutes multiple offenses.”
Id. at 186. In assessing harm,
we noted that “potential harms” means “harms that were
risked, though not realized, by the conduct that actually
occurred.”
Id. at 185 n 2. We also observed that it is not
“appropriate to consider theoretical harms that an offense
… could have caused.”
Id. Concluding that ORS 137.123(5)(b)
does not authorize consecutive sentences for multiple offenses
that arise out of a single act, we explained: “Where two
offenses are predicated on the same act, logic will not support the conclusion that one offense caused or created a risk
of causing some harm that the other offense did not.”
Id. at
186.
In this case, the conduct was driving while under
the influence of intoxicants while defendant’s driving privileges were revoked. Thus, because the conduct at issue is
predicated on a single act—driving—Rettmann compels
the conclusion that the trial court erred in imposing consecutive sentences under ORS 137.123(5)(b). The state nonetheless argues that there are different risks present with
each offense because, among other things, defendant’s DWR
offense caused “an abstract, regulatory harm” to the state,
whereas DUII “created the risk that [defendant] would cause
an accident by driving drunk, thereby injuring persons or
Cite as 313 Or App 565 (2021) 573
property.” As an initial matter, the state’s argument runs
contrary to the principle that, when comparing harms or
risk of harms, we look to the conduct that actually occurred.
See Rettmann,
218 Or App at 185 n 2. Moreover, the state’s
argument in this case is the same argument that we
rejected in Rettmann. That is, the state’s argument focuses
on the “abstract harm that the legislature contemplated in
enacting the statutory offense[.]” Edwards,
286 Or App at
107. That argument, we explained in Edwards, “is difficult,
if not impossible to reconcile with Rettmann.”
Id. at 108;
see also Rettmann,
218 Or App at 186 (“[W]hatever harms
resulted from or were risked by defendant’s act … were
the same regardless of which offense the act is viewed as.”).
Accordingly, because defendant’s conduct is predicated on
a single act, Rettmann controls and ORS 137.123(5)(b) does
not authorize consecutive sentences for multiple offenses
that arise out of that single act.
Reversed and remanded for resentencing; otherwise
affirmed.
