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Martinez v. Cain

Court of Appeals of Oregon

August 15, 2018

PEDRO MARTINEZ, Petitioner-Appellant,
v.
Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent

          Argued and submitted March 28, 2018

          Umatilla County Circuit Court CV160282; Eva J. Temple, Judge.

          Lindsey Burrows argued the cause for appellant. Also on the brief was O'Connor Weber LLC.

          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 Ortega, Presiding Judge, and Powers, Judge, and Brewer, Senior Judge.

         [293 Or.App 435] PER CURIAM

         Petitioner appeals from a judgment dismissing his petition for post-conviction relief. The post-conviction court concluded that the superintendent was entitled to summary judgment on the ground that, as a matter of law, petitioner's convictions did not merge and, thus, petitioner was not prejudiced by his counsel's failure to object to the nonmerged sentences on the counts of attempted aggravated murder with a firearm, ORS 163.095(2)(d) (aggravated murder); ORS 161.405(2)(a) (attempt), and first-degree robbery with a firearm, ORS 164.415. We affirm.

         Petitioner contends that the post-conviction court erred because first-degree robbery is a lesser-included offense of attempted aggravated felony murder such that the former merges into the latter. In contending otherwise, the superintendent asserts that the trial court correctly granted summary judgment because State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000), established that an underlying felony is not an element of an associated felony murder offense, meaning that petitioner's robbery offense was not subsumed by his attempted aggravated murder conviction. Furthermore, even if the underlying felony was an element, the state contends that the offenses still would not merge because petitioner's robbery was a completed offense, whereas his attempted aggravated murder conviction only required proof of attempted robbery. We agree with the superintendent.

         Petitioner's argument fails because his robbery conviction was not an element of his attempted aggravated murder conviction. See Barrett, 331 Or. at 34 n 2 (stating that underlying felony is not element of aggravated felony murder); see also State v. Martinez, 270 Or.App. 423, 430 n 4, 348 P.3d 285, rev den, 357 Or. 640 (2015) (applying Barrett's analysis that underlying felony is not element of associated aggravated murder offense); State v. Wilson, 216 Or.App. 226, 236-37, 173 P.3d 150, rev den, 334 Or. 391 (2008), adh'd to as modified on recons, 228 Or.App. 365, 208 P.3d 523 (2008) (same).[1] Moreover, Barrett aside, petitioner's completed [293 Or.App. 436] robbery conviction could not merge with his attempted aggravated murder conviction. Wilson, 216 Or.App. at 236 (holding that underlying felonies, kidnapping and assault, did not merge into associated felony murder because former offenses "require proof of the completed crimes of kidnapping and assault" whereas "attempted aggravated murder, under any theory, does not require such proof").[2]

         Accordingly, we agree with the post-conviction court that relief was not warranted, because petitioner's founda-tional premise-that the sentencing court was required to merge petitioner's convictions-is incorrect as a matter of law. It follows that the trial court did not err in entering summary judgment in favor of the superintendent.

         Affirmed.

          BREWER, S. J., dissenting.

         The majority understandably adheres to State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000), and State v. Wilson, 216 Or.App. 226, 173 P.3d 150 (2007), rev den, 334 Or. 391 (2008), adh'd to as modified on recons, 228 Or.App. 365, 208 P.3d 523 (2008), in concluding that petitioner's convictions do not merge. However, in my view, the courts in Barrett and Wilson departed from the unambiguous text of the "anti-merger" statute, ORS 161.067(1), and the aggravated murder statute, ORS 163.095, in (1) mistakenly characterizing the elements of aggravated felony murder, ORS 163.095(2)(d); and (2) failing to properly apply the meaning of ORS 161.067(1), which states that, to avoid the merger of offenses, "each provision" must "require [] proof of an element that the other does not." Because, under a correct interpretation of those statutes, the underlying felony of which petitioner was convicted-first-degree robbery-does not require proof of an element that is not contained in [293 Or.App. 437] attempted aggravated felony murder, petitioner's conviction for the latter offense completely subsumes his conviction for the former. Accordingly, I would conclude that petitioner's robbery conviction should merge into his attempted aggravated murder conviction. Because that conclusion supports petitioner's claim for post-conviction relief, I respectfully dissent.

         I. ELEMENTS OF AGGRAVATED FELONY MURDER

         ORS 161.067, governing merger of offenses, provides, in pertinent part:

"(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."

         (Emphasis added.) The first sticking point in this case lies in determining the elements of the primary offense for which petitioner was convicted, attempted aggravated felony murder. ORS 163.095(2)(d). The parties have different conceptions of those elements. Petitioner contends that the elements of the underlying felony of which he was convicted-first-degree robbery-are elements of his attempted aggravated felony murder conviction, whereas the superintendent contends otherwise. The superintendent, citing Barrett, asserts that the elements of the underlying felony are not elements of attempted aggravated felony murder. As I will explain, I believe that that conclusion is incorrect.

         The question poses an issue of statutory interpretation, viewed in the context of the broader statutory scheme for the crime of murder. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009) (text and context are primary components of statutory construction analysis). "Felony murder" is a form of murder that is committed during the course of certain enumerated crimes, including first-degree robbery. ORS 163.115(1)(b); State v. Wille, 317 Or. 487, 493, 858 P.2d 128 (1993) ("We refer to ORS 163.115(1)(b) as 'felony murder.'"). As the Supreme Court has explained, "[t]he murder statutes distinguish between 'ordinary' murder and murder that is accompanied by specified aggravating circumstances. [293 Or.App. 438] See ORS 163.115 (murder); ORS 163.095 (aggravated murder)." State v. Ventris, 337 Or. 283, 292, 96 P.3d 815 (2004). "Aggravated murder" is denned as "murder as denned in ORS 163.115 which is committed under, or accompanied by" statutorily defined aggravating circumstances, ORS 163.095, one of which is that "the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(1)(b)." ORS 163.095(2)(d). In this case, petitioner was charged under ORS 163.095 (2)(d), "a category commonly called 'aggravated felony murder'." Wille, 317 Or. at 493.

         Under the described statutory scheme, there is a concomitant relationship between ordinary murder, ORS 163.115, and aggravated murder, ORS 163.095, and, as relevant here, between felony murder, ORS 163.115(1)(b) and aggravated felony murder, ORS 163.095(2)(d). "[A]ny of the forms of murder under ORS 163.115-intentional murder, felony murder, or murder by abuse-can become aggravated murder when the circumstances of the murder include one or more of the specified additional elements set out in ORS 163.095." Ventris, 337 Or. at 293; see id. at 294 (describing ORS 163.095(2)(d) and ORS 163.115(1)(b) as fitting together "in a coherent relationship, with the additional finding of the aggravating circumstances transforming felony murder into aggravated murder").

         With that foundation in mind, I turn to Barrett. In that case, the defendant was charged with multiple counts of aggravated murder, including one count of aggravated felony murder, ORS 163.095(2)(d), based on the intentional killing of the victim during the commission of a robbery. 331 Or. at 29. The defendant was separately charged with one count of first-degree robbery under ORS 164.415. Id. The issue on review was whether the sentencing court could impose multiple life sentences on the defendant for the aggravated murder of one victim. Id. at 30-31. The court concluded that the defendant's conduct in intentionally murdering one victim did not violate "two or more statutory provisions," as that phrase is used in former ORS 161.062(1), id. at 31, because "all the enumerated circumstances simply serve to prove the single essential element of 'aggravation, '" id. at [293 Or.App. 439] 35. [1] It followed, the court concluded, that multiple sentences were impermissible for the aggravated murder of a single victim. Id. at 36. Having so concluded, the court also was concerned with the implications of its decision for purposes of verdict and jury concurrence requirements. In those regards, the court explained that the "defendant properly was charged with and convicted of multiple counts of aggravated murder based on the existence of multiple aggravating circumstances," id. at 31, and that "[e]ach of the three theories of aggravated murder at issue here is one on which the jury had to agree unanimously," id. at 36.

         Although the issue of whether the defendant could be separately sentenced for both the underlying felony and aggravated felony murder was not presented in Barrett, the court nevertheless opined on that issue. The court recognized that the murder in that case was committed in the course of committing one of the felonies listed under ORS 163.115 (1)(b), the felony murder statute, and, thus, ORS 163.095 (2)(d) applied. Id. at 34 n 2. However, the court described "each of those underlying felonies as a separate aggravating circumstance," id., and then relatedly opined:

"Under the foregoing analysis, a separate conviction could be entered on the robbery charge on remand. Robbery and aggravated murder clearly are set out in two different statutory provisions, ORS 164.415 and ORS 163.095. Moreover, in light of our conclusion that the various aggravating circumstances are not 'elements' for purposes of former ORS 161.062(1) but, rather, alternative ways of proving the element of aggravation, the statutory provisions penalizing robbery and aggravated murder each involve an element that the other does not and address [293 Or.App. 440] separate legislative concerns. ...

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