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State v. Silver

Court of Appeals of Oregon

February 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT SILVER, Defendant-Appellant.

          Argued and submitted November 15, 2016

         Polk County Circuit Court 14CR00565; A158651 Norman R. Hill, Judge.

          Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: Defendant was found guilty on counts of first-degree animal abuse, including two counts (Counts 1 and 6) based on the failure to provide care for the same animal. On appeal, defendant argues, among other contentions, that the trial court erred by entering separate convictions on Counts 1 and 6 rather than merging the guilty verdicts for those counts into a single conviction. The state concedes that the trial court erred in failing to merge the guilty verdicts on Counts 1 and 6, and it further concedes that, under existing case law-specifically, State v. Skaggs, 275 Or.App. 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 (2016)-the error is one that involves the reversal of a judgment of conviction under ORS 138.222(5)(b), which triggers an automatic remand for resentencing on all affirmed counts. However, the state argues that Skaggs was wrongly decided and should be overruled. According to the state, merger errors like the one committed in this case should instead be governed by paragraph (a) of ORS 138.222(5), which allows the Court of Appeals to determine whether or not an error is one that actually “requires resentencing.” In the state's view, because the sentence on Count 6 runs concurrently to a longer sentence on Count 1, the merger error in this case does not “require resentencing” and can be remedied simply by a remand for entry of a “corrected judgment” that reflects a single conviction for Counts 1 and 6. Thus, the state requests a remand with that more limited disposition. Held: The state failed to demonstrate that Skaggs should be overruled; accordingly, the Court of Appeals adhered to that decision and, based on the trial court's failure to merge the guilty verdicts on Count 1 and Count 6, remanded for resentencing under ORS 138.222(5)(b).

         Convictions on Counts 1 and 6 reversed and remanded for entry of a judgment of conviction for one count of felony first-degree animal abuse; remanded for resentencing; otherwise affirmed.

          GARRETT, J.

         Defendant was found guilty on multiple counts of animal abuse, based on his failure to provide minimally adequate care for his herd of alpacas. Those counts included a felony count (Count 1) and a misdemeanor count (Count 6) of first-degree animal abuse, both of which involved the failure to provide care for the same animal. On appeal, defendant argues, among other contentions, that the trial court erred by entering separate convictions on Counts 1 and 6 rather than merging the guilty verdicts for those counts into a single conviction.

         The state concedes that the trial court erred in failing to merge the guilty verdicts on Counts 1 and 6, and it further concedes that, under our existing case law-specifically, State v. Skasss. 275 Or.App. 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 (2016)-the error is one that involves the reversal of a judgment of conviction under ORS 138.222(5)(b), which triggers an automatic remand for resentencing on all affirmed counts. However, the state argues that Skaggs was wrongly decided and urges us to overrule it. According to the state, merger errors like the one committed in this case should instead be governed by paragraph (a) of ORS 138.222(5), which allows this court to determine whether or not an error is one that actually "requires resentencing." In the state's view, because the sentence on Count 6 runs concurrently with a longer sentence on Count 1, the merger error in this case does not "require resentencing" and can be remedied simply by a remand for entry of a "corrected judgment" that reflects a single conviction for Counts 1 and 6. Thus, the state asks that we remand with that more limited disposition and otherwise affirm with regard to defendant's sentences. For the reasons that follow, the state has not persuaded us to overrule our decision in Skaggs. Accordingly, we reverse and remand for resentencing based on the trial court's failure to merge the guilty verdicts on Counts 1 and 6, which obviates the need to address defendant's remaining assignments of error concerning sentencing.[1]

         As described above, defendant's merger argument concerns two counts of first-degree animal abuse under ORS 167.330. Under that statute, first-degree animal abuse is a misdemeanor, unless certain aggravating factors are present, in which case it becomes a Class C felony. ORS 167.330(2), (3). One of those aggravating factors is that the offense was part of an episode involving 10 or more animals. ORS 167.330(3). In addition, if more than 40 animals were neglected, the crime category classification for the offense is increased for sentencing purposes. ORS 167.330(4).

         In this case, the state separately alleged a felony (Count 1) and a misdemeanor (Count 6) under ORS 167.330 based on defendant's conduct toward one of his alpacas, an animal identified as number "5."[2] After defendant was found guilty on those counts, the prosecutor acknowledged that the two guilty verdicts should merge into a single conviction for first-degree animal abuse. Nonetheless, the trial court's judgment reflects two separate convictions for first-degree animal abuse on Counts 1 and 6. That was error, as the state correctly concedes, because both counts involved the same statutory provision, the same criminal episode, and the same victim. See ORS 161.067 (a defendant has committed "separately punishable offenses" when the "same conduct or criminal episode" violates two or more statutory provisions, each requiring proof of an element the others do not; involves two or more victims; or involves repeated violations of the same statutory provision against the same victim if separated by "sufficient pause").

         The disputed issue on appeal is the consequence of that merger error. Just over a year ago, in Skaggs, we held that an error in failing to merge guilty verdicts is one that requires resentencing under ORS 138.222(5)(b). In Skaggs, as in this case, the state conceded that the trial court erred by failing to merge two guilty verdicts, but it argued that a remand for resentencing was unnecessary, relying on ORS 138.222(5)(a). We described that argument as follows:

"[T]he state urges us to reverse and remand for entry of a corrected judgment that merges defendant's convictions rather than to remand for resentencing. We should do so, the state asserts, because defendant received concurrent sentences on the two convictions and nothing in the judgment or record 'suggests that merger of the two convictions would have any effect at all on the overall disposition' of the case. The state further argues that, because the error can be fixed by the trial court's entry of ...

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