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State v. Edwards

Court of Appeals of Oregon

June 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CODY MARSHALL EDWARDS, Defendant-Appellant.

          Argued and submitted January 26, 2016

         Marion County Circuit Court 13C47515 Tracy A. Prall, Judge.

          Meredith Allen, 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.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant committed first-degree assault and attempted aggravated murder when he fired at a police officer twice in succession. The first shot missed, and the second shot struck the officer, causing serious physical injury. The trial court ordered that defendant's sentence for assault run consecutively to his sentence for attempted murder, concluding that ORS 137.123(5) authorized consecutive sentences. On appeal, defendant assigns error to that ruling, arguing that consecutive sentences were not authorized under either ORS 137.123(5) (a) or (b). Held: The trial court erred in imposing consecutive sentences because the record does not support either predicate finding under ORS 137.123(5). First, the record lacks discrete facts indicating that defendant had a different intent in firing the second shot than he did in firing the first. ORS 137.123(5)(a). Second, the record lacks discrete facts demonstrating that the assault offense caused or risked "greater or qualitatively different" harms than those that were caused or risked by the attempted-murder offense. ORS 137.123(5)(b).

         Remanded for resentencing; otherwise affirmed.

         [286 Or.App. 100] GARRETT, J.

         In the course of attempting to evade police, defendant fired two shots at a police officer. The first shot missed, and the second shot wounded the officer's leg. Defendant pleaded guilty to offenses including attempted aggravated murder and first-degree assault. The issue on appeal is whether the trial court erred in imposing consecutive sentences on those counts. To do so, the trial court was required to make one of the alternative findings set out in ORS 137.123(5).[1] For the reasons below, we conclude that the record is insufficient to permit either finding. Accordingly, we remand for resentencing.

         We recount the undisputed facts as described by the prosecutor at sentencing. See State v. Byam, 284 Or.App. 402, 406, 393 P.3d 252 (2017) (reviewing the imposition of consecutive sentences based on the undisputed facts, "with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings").

         After leading police on a high-speed chase, defendant lost control of his vehicle, abandoned it in a field near a stand of trees, and fled on foot. Later, Deputy Buchholz spotted defendant walking just inside the tree line. Buchholz called out to defendant, who then ran away, causing Buchholz to briefly lose sight of him. When Buchholz later saw defendant lying on the ground, defendant announced that he was hurt and needed help. Buchholz replied that he could help, but that defendant first needed to show his hands. Defendant [286 Or.App. 101] then fired two rounds at Buchholz. The first shot missed, and the second hit Buchholz's leg. The record does not reveal how much time passed between the two shots. Buchholz lost a substantial amount of blood, but survived.

         Defendant was indicted on multiple charges, including, as relevant to this appeal, attempted aggravated murder with a firearm, ORS 161.405, ORS 163.095, and ORS 161.610 (Count 1), and first-degree assault with a firearm, ORS 163.185 and ORS 161.610 (Count 2). Defendant pleaded guilty to both counts, admitting in his plea petition that he "intentionally attempted to cause the death of [Buchholz], a police officer, while he was working as a police officer * * * by causing serious physical injury to him with a firearm."

         At sentencing, the state recommended consecutive sentences on the two counts under ORS 137.123(5), arguing that defendant had caused two "qualitatively different harms" by firing one shot that was intended to kill but missed and a second shot that hit Buchholz's leg and caused the serious physical injury. In opposing consecutive sentences, defendant argued that the two shots should be considered a single act, citing State v. Warren, 168 Or.App. 1, 6, 5 P.3d 1115, rev den, 330 Or. 412 (2000) (holding that the record did not support the imposition of consecutive sentences pursuant to ORS 137.123(5)(a) for convictions for assault and attempted murder arising out of a single gunshot), and State v. Rettmann. 218 Or.App. 179, 186, 178 P.3d 333 (2008) (holding that consecutive sentences were not authorized by ORS 137.123(5)(b) for convictions for assault and attempted murder arising out of a single cut to the victim's wrist).

         The trial court ordered that defendant's sentence for assault run consecutively to his sentence for attempted aggravated ...


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