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State v. Davis

Court of Appeals of Oregon

September 10, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN LEE DAVIS, JR., Defendant-Appellant

Argued and Submitted November 27, 2013

Douglas County Circuit Court 11CR0811FE, Randolph Lee Garrison, Judge.

Motion to dismiss denied; affirmed.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Wollheim, Presiding Judge, and Duncan, Judge, and Hadlock, Judge.

OPINION

Page 323

[265 Or.App. 427] HADLOCK, J.

Defendant, who was convicted of murder in 1995, was charged with two counts of felon in possession of a firearm, a Class C felony, after police officers found a rifle and a shotgun in his home on April 14, 2011. See ORS 166.270(5) (" Felon in possession of a firearm is a Class C felony." ). Defendant pleaded no contest and the trial court accepted that plea, finding defendant guilty of both counts. At a later sentencing hearing, defendant argued that the trial court's determinations of guilt should merge under ORS 161.067, resulting in only a single conviction. The trial court denied defendant's merger request and entered a judgment reflecting two felon-in-possession convictions. On appeal, defendant renews his merger argument. The state responds, first, that this court

Page 324

lacks jurisdiction over the appeal and must dismiss. On the merits, the state argues that merger is precluded because evidence in the record supports an inference that defendant obtained the two firearms at different times, resulting in a pause during which defendant could have renounced his criminal intent. We conclude that we have jurisdiction over this appeal and authority to review defendant's merger argument. On the merits, we affirm.

I. BACKGROUND

In conjunction with entering his no-contest plea, defendant signed a " plea statement" in which he acknowledged, among other things, that he was pleading " no contest" to two counts of felon in possession and that the state would argue for consecutive sentences on those two counts. The trial court accepted the pleas and found defendant guilty. Immediately after the court announced that it would accept the pleas, defendant asserted that it was the appropriate time " to ask the Court to consider merger" of the two counts of felon in possession. On that point, defendant argued that the two counts merged under ORS 161.067(3) because they involved " exactly the same criminal offense" and there was " not sufficient pause" between the two offenses.[1] The state [265 Or.App. 428] objected to defendant's merger argument and requested an opportunity to submit additional briefing on that point. Defendant did not oppose the state's request, and the court scheduled a sentencing hearing.

Shortly before the sentencing hearing, defendant filed a " supplemental memorandum regarding merger and concurrent sentencing" in which he argued that his " convictions should merge," that " concurrent sentencing [was] required if the two convictions do not merge," and that the court should impose concurrent sentences even if it had authority to make the sentences consecutive. In a responsive memorandum, the state expressed opposition to defendant's merger request on several grounds, including that defendant had agreed to plead to " both counts of Felon in Possession of a Firearm." At the merger hearing, a deputy sheriff testified about the circumstances under which law enforcement officers had found the two guns in different areas in defendant's home. During that encounter, the deputy testified, defendant said that the rifle belonged to his wife and that he had known that the rifle was in their home. Defendant also told the deputy that the shotgun belonged to one of ...


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