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State v. Byam

Court of Appeals of Oregon

March 15, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTHONY JONATHAN BYAM, Defendant-Appellant.

          Submitted December 16, 2015

         Lane County Circuit Court 201322117 Mustafa T. Kasubhai, Judge.

          Peter Gartlan, Chief Defender, and Mary M. Reese, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.

         Case Summary: Defendant pleaded guilty to several charges, including first-degree robbery, ORS 164.415 (1) (b) and unauthorized use of a motor vehicle (U U V), ORS 164.135(1)(a), arising from an incident in which he acquired the keys to a car after threatening the owner with a knife, and then drove away. He assigns error to the trial court's imposition a consecutive sentence for the UUV conviction. He argues that the court erred in concluding that, under ORS 137.123(5) (a), the UUV offense was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious offense"-here, first-degree robbery-"but rather was an indication of defendant's willingness to commit more than one criminal offense." Held: Here, because defendant concurrently committed UUV and first-degree robbery when he used a dangerous weapon to deprive the car's owner of possession and control of the vehicle, and there is no evidence that defendant was willing to commit UUV in addition to first-degree robbery, the court erred in imposing a consecutive sentence for the UUV conviction.

         Remanded for resentencing; otherwise affirmed.

          HASELTON, S. J.

         Defendant pleaded guilty to several charges, including robbery in the first degree, ORS 164.415(1)(b), and unauthorized use of a motor vehicle (UUV), ORS 164.135(1) (a), arising from an incident in which he acquired the keys to a car after threatening the owner with a knife, and then drove away. He appeals the consequent judgment, asserting that the trial court, in imposing sentence, erred in directing that the sentence for UUV be served consecutively to, rather than concurrently with, the sentence for first-degree robbery. Specifically, defendant contends that the court erred in determining that the UUV was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious offense but rather was an indication of defendant's willingness to commit more than one criminal offense [.]" ORS 137.123(5)(a). For the reasons that follow, we conclude that the trial court so erred and, consequently, we remand for resentencing but otherwise affirm. ORS 138.222(5)(a).[1]

         The circumstances material to our review are simple and undisputed. Defendant approached the victim, Feist, who was putting his laptop into his car, which was parked on a street in Eugene. Defendant first asked Feist for some change, and Feist complied-and then, after a brief interchange, defendant demanded the keys to Feist's car. Feist initially refused, saying something akin to "Are you serious?" Defendant then pulled out a knife, brandishing it in Feist's face, and Feist gave defendant his keys. Defendant drove away in Feist's car, and the following day, while being pursued by a police officer and while under the influence of methamphetamine, defendant "slammed [Feist's car] into a brick wall outside a Wendy's" restaurant in Springfield.

         Defendant was charged by indictment with a variety of crimes, including, as germane to our consideration, first-degree robbery (Count 1) and UUV (Count 2), and subsequently pleaded guilty to all charges.[2] The trial court imposed the statutorily prescribed presumptive sentence of 90 months' incarceration and three years' post-prison supervision on the conviction for first-degree robbery, see ORS 137.700(2)(a)(Q)-and then, notwithstanding defendant's objection, imposed a consecutive, rather than concurrent, sentence of 52 months' incarceration and eight months' post-prison supervision on the UUV conviction.[3] In doing so, the court determined that, although the first-degree robbery and the UUV both arose from the same "continuous and uninterrupted course of conduct, " the latter 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." ORS 137.123(5)(a).[4]

         On appeal, defendant's sole assignment of error pertains to the imposition of the consecutive, rather than concurrent, sentence for UUV. In that regard, defendant contends:

"The facts of this case-in the light most favorable to the court's finding-were that defendant threatened to use a knife in order to take a car. Defendant committed the robbery to possess the car and he was able to possess the car only by committing the robbery. Because the robbery and the [UUV] were so intertwined, it cannot be said that one is not incidental to the other or that defendant did not need to commit one crime in order to commit the other. To the contrary, under the facts of this case, defendant could not have committed the ...

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