Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Provancha

Court of Appeals of Oregon

August 1, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LANDIS ORION PROVANCHA, Defendant-Appellant.

          Argued and Submitted January 31, 2017

          Marion County Circuit Court 14C40011; Courtland Geyer, Judge.

          Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge. [*]

         [293 Or.App. 170] Case Summary:

         Defendant was convicted of second-degree assault and attempted murder after he attacked the victim in a single uninterrupted course of conduct. The trial court ordered that the sentence for second-degree assault run partially consecutive to the sentence for attempted murder. On appeal, defendant assigns error to that ruling, arguing that consecutive sentences were not authorized under either ORS 137.123(5)(a) or (5)(b). Held: The trial court erred in imposing partially consecutive sentences because the record does not support either of the predicate findings necessary to impose a consecutive sentence under ORS 137.123(5). First, the record does not support an inference that defendant's commission of second-degree assault was not merely incidental to his commission of attempted murder or that he ever intended only to injure the victim and not kill her, as required under ORS 137.123(5)(a). Second, the record does not support a determination that defendant's assault offense caused or risked greater or qualitatively different harm to the victim than that caused by the attempted murder offense, as required under ORS 137.123(5)(b).

         Reversed and remanded for resentencing.

         [293 Or.App. 171] HADLOCK, J.

         In what the trial court aptly described as a "brutal attack," defendant lay in wait for the victim in a dark house, then struck her several times with a baseball bat after she entered. Despite having suffered significant skull injuries, the victim fought back, hid from defendant, and escaped through a window. Defendant eventually pleaded no contest to, and was convicted of, attempted murder and second-degree assault constituting domestic violence. The trial court imposed the mandatory minimum sentences on both counts (including incarceration terms of 90 months for attempted murder and 70 months for second-degree assault) and ordered part of the sentence on the assault conviction to be served consecutively to the attempted murder conviction, resulting in a total incarceration term of 144 months. On appeal, defendant assigns error to the trial court's imposition of a partially consecutive sentence, arguing that the record does not support consecutive sentencing under either subsection (a) or subsection (b) of ORS 137.123(5).[1] We agree with defendant and, accordingly, remand for resentencing

         We describe defendant's criminal conduct to provide context to the facts significant to the issues on appeal; we relate the facts in the light most favorable to the state. State v. Kuester, 275 Or.App. 414, 415, 364 P.3d 685 (2015).

         Defendant and the victim, previously romantic partners, were housesitting for another family (as they had on other occasions). The night of the incident, defendant told the victim that his van was not working but that she should go to the family's house and he would meet her there. Defendant in fact arrived at the house before she did. He had left his van away from the house and was waiting for the victim inside the house with the lights off. When the victim entered the house, defendant struck her in the head with a bat, knocking her to the ground. Defendant struck the victim in the head two or three more times before she was able to use her arm to block the bat and get it away from defendant. The victim then was able to crawl into the [293 Or.App. 172] kitchen and find a place to hide before ultimately breaking a window and escaping through it, climbing off the roof, and contacting a neighbor. Defendant fled to his van and claimed that he had been attacked and never made it to the house. He was arrested after blood from the bat was matched to blood on his clothing.

         Defendant was indicted on one count each of attempted murder, attempted first-degree assault constituting domestic violence, and second-degree assault constituting domestic violence. He pleaded no contest to attempted murder and second-degree assault constituting domestic violence; the court convicted defendant of those two crimes and dismissed the other count.

         At sentencing, the parties agreed that defendant's attack constituted a single uninterrupted course of conduct. The state recommended a consecutive sentence on the two counts under ORS 137.123(5), asking the court to make the requisite findings and arguing that the court could impose a consecutive sentence both because the offense "was an indication of the defendant's willingness to commit more than one criminal offense," and because the offense "caused or created a risk of causing greater or qualitatively different [] loss, injury, or harm to the victim." (Quoting ORS 137.123(5).) Defendant argued that his "criminal objective was singular" and that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.