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State v. Martinez

Court of Appeals of Oregon

April 15, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
PEDRO MARTINEZ, JR., Defendant-Appellant

Submitted May 27, 2014.

120632718. Multnomah County Circuit Court. Henry Kantor, Judge.

Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.

OPINION

Page 286

[270 Or.App. 424] HADLOCK, J.

Defendant was convicted of multiple crimes including attempted aggravated murder with a firearm (ORS 163.095(2)(d) (aggravated murder); ORS 161.405(2) (a) (attempt)), first-degree robbery with a firearm (ORS 164.415), and second-degree assault with a firearm (ORS 163.175). The aggravating factor underlying the charge of attempted aggravated murder was an allegation that defendant attempted to kill the victim " in the course of and in the furtherance of" committing the crime of robbery. On appeal, defendant makes unpreserved arguments that the trial court erred by failing to merge the guilty verdicts on the robbery and assault counts into the guilty verdict on the count of attempted aggravated murder. We reject those unpreserved merger arguments, presented in defendant's first and third assignments of error, without discussion. In his second assignment of error, defendant challenges the trial court's imposition of partially consecutive sentences on the convictions for attempted aggravated murder and robbery. We reject that argument for the reasons set forth below and, accordingly, affirm.

" We review a trial court's decision to impose consecutive sentences for errors of law and to 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 P.3d 156 (2014). We describe the facts in keeping with that standard. In a seven-count indictment, the state charged defendant with multiple crimes arising from a single incident. In Count 1, defendant was charged with attempted aggravated murder with a firearm:

" [Defendant], on or about June 11, 2012, *** did unlawfully and intentionally commit and attempt to commit the crime of Robbery in the First Degree and in the course of and in the furtherance of the crime that defendant was committing and attempting to commit, defendant personally and intentionally attempted to cause the death of [the victim], and during the commission

Page 287

of this felony, the defendant(s) used and threatened the use of a firearm ***."

In Count 2, defendant was charged with first-degree robbery with a firearm:

[270 Or.App. 425] " [Defendant], on or about June 11, 2012, *** did unlawfully and knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to defendant's taking of property and retention of the property immediately after the taking, and being armed with a deadly ...

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