Argued and submitted on June 27, 2012.
Deschutes County Circuit Court 01FE0371AB Alta Jean Brady, Judge.
Susan Fair Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Justin Alan Link filed the supplemental brief pro se.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
When defendant was a teenager, he and four friends went on a crime spree that included stealing a car belonging to one friend's mother and then killing her to conceal the robbery. For his involvement, defendant was convicted, after a bench trial, of aggravated murder, ORS 163.095, (Counts 1 through 5); conspiracy to commit aggravated murder, ORS 161.450, (Counts 6 through 10); attempted murder, ORS 161.405, (Counts 11 and 12); assault in the second degree, ORS 163.175, (Count 13); kidnapping, ORS 163.235, (Count 14); robbery in the first degree, ORS 164.415, (Counts 15 through 17); burglary in the first degree, ORS 164.225, (Counts 18 through 20); and theft in the first degree, ORS 164.055, (Counts 21 through 22).
Defendant waived his right to a jury for the sentencing phase, and the court imposed a true life sentence on Count 1 (aggravated murder). The court merged various counts "for sentencing purposes" (Counts 2 through 10 for aggravated murder and conspiracy to commit aggravated murder, and Counts 15 through 17 for robbery) into Count 1. (Emphasis added.) The court imposed 90-month sentences on Counts 11 and 12 (attempted murder), a 70-month sentence on Count 13 (second-degree assault), and a 90-month sentence on Count 14 (kidnapping), all of which were to be served concurrently with defendant's true life sentence. The court imposed a 36-month concurrent sentence on Count 18 (first-degree burglary), and merged "for sentencing purposes" Counts 19 through 20 (also first-degree burglary). (Emphasis added.) Last, the court imposed concurrent dispositional departure sentences on Counts 21 and 22 (theft) for six months in prison.
Defendant appealed his convictions and sentences. In that first appeal, State v. Link, 214 Or.App. 100, 110, 162 P.3d 1038 (2007) (Link I), we held that the guilty adjudications on Counts 2 through 5 should have merged with the adjudications on Count 1, yielding a single conviction for aggravated murder--as opposed to "being merged only 'for sentencing purposes.'" We then held that the adjudications on Counts 6 through 10 (conspiracy to commit murder) should have merged together, and then merged into the adjudication on Count 1, and that the adjudications on Counts 11 and 12 (attempted murder) likewise should have merged into the adjudication on Count 1. In other words, the adjudications of guilt on Counts 1 through 12 should have yielded a single conviction for aggravated murder. We also agreed with defendant that the guilty adjudications on Counts 19 and 20 (first-degree burglary) should have merged into the adjudication on Count 18 (first-degree burglary), yielding a single first-degree burglary conviction.
In light of those conclusions, we did not address defendant's contention that the trial court should have granted his motion for a judgment of acquittal on Counts 1 through 3. We reasoned that, because defendant had not assigned error to his convictions on Counts 4 and 5 and therefore would still stand convicted on those counts, and, because all of defendant's aggravated murder counts merged into a single conviction, resulting in a single sentence, an acquittal on Counts 1 through 3 would not affect a substantial right of defendant. 214 Or.App. at 111; see ORS 138.230 (directing court to disregard defects that do not affect a party's substantial rights). Applying the same logic, we also did not consider defendant's contention that he should have been acquitted on Counts 6 through 8. Link, 214 Or.App. at 111. We ultimately vacated defendant's sentences and remanded the case for merger in accordance with our opinion, and for resentencing. Id. at 112.
The Supreme Court allowed review for the limited purpose of determining whether, as this court had held, any error by the trial court in denying defendant's motion for a judgment of acquittal on Counts 1 through 3 was harmless. State v. Link, 346 Or 187, 208 P.2d 936 (2009). On review, the court concluded that we should have reached the merits of defendant's arguments concerning his convictions on Counts 1 through 3 because, in part, whether a person is guilty as charged has independent significance that cannot be foreclosed by merger. Id. at 202. The court further concluded that defendant was indeed entitled to an acquittal on those three counts, which were based on defendant having "personally" murdered the victim. The court's disposition read as follows:
"The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings."
Id. at 212. Significantly, the Supreme Court's opinion--and its disposition reversing this court's decision--related only to defendant's convictions on Counts 1 through 3. The Supreme Court affirmed the remainder of this court's disposition, which had vacated and remanded for merger and resentencing on counts other than Counts 1 through 3.
The case now before us concerns what happened on remand from the Supreme Court to the trial court. On remand, the trial court refused to provide defendant with a new sentencing proceeding; instead, the court entered an amended judgment reflecting that defendant was acquitted on Counts 1 through 3. The amended judgment stated that defendant was receiving a true life sentence on Count 4. It then merged Counts 5 through 10 (aggravated murder and conspiracy to commit aggravated murder) into Count 4 for sentencing purposes. The court did not change the sentences on the remaining offenses, except that it merged Counts 15 through 17 (robbery) into Count 4 for sentencing purposes. ...