Submitted September 29, 2017
County Circuit Court 15CR34784; Matthew J. Donohue, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Mary M. Reese, Deputy Public Defender, Offce of the Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jacob Brown, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for,
among other offenses, three counts of coercion (Counts 1 to
3), ORS 163.275, and one count of felony assault in the
fourth-degree (Count 5), ORS 163.160(3). The trial court,
when calculating defendant's criminal history score on
Count 5, concluded that the "shift-to-I" rule did
not apply because Counts 1 to 3 and Count 5 were part of
separate criminal episodes. On appeal, defendant assigns
error to the trial court's conclusion that the
"shift-to-I" rule did not apply. Held: The
Court of Appeals held that the record in this case did not
support the trial court's conclusion that Counts 1 to 3
were separate from Count 5 for purposes of applying the
for resentencing; otherwise affirmed.
Or.App. 461] TOOKEY, J.
appeals a judgment of conviction for, among other offenses,
three counts of coercion (Counts 1 to 3), ORS 163.275, and
one count of felony assault in the fourth-degree constituting
domestic violence (Count 5), ORS 163.160(3). The trial court
sentenced defendant to 36 months' imprisonment on each of
Counts 1 to 3 under 7-A on the sentencing guidelines grid
block to be served concurrently, and 30 months'
imprisonment on Count 5 under 6-A on the sentencing
guidelines grid block to be served consecutively to Counts 1
to 3. On appeal, defendant assigns error to the trial
court's calculation of his criminal history score on
Count 5. Defendant contends that the trial court "erred
when it found that Count 5 arose in a separate criminal
episode and refused to apply the 'shift-to-I' rule
when imposing a consecutive sentence on Count
5." For the reasons that follow, we conclude
that the record does not support the trial court's
conclusion that Counts 1 to 3 were separate from Count 5 for
purposes of applying the "shift-to-I" rule. We
therefore remand for resentencing and otherwise affirm.
question of whether events constitute a single criminal
episode is a question of law * * *." State v.
Burns, 259 Or.App. 410, 420, 314 P.3d 288 (2013),
recons den and appeal dismissed, 261 Or.App. 113,
323 P.3d 275 (2014). In this case, the facts are not in
dispute. Thus, we "review the court's application of
the law to those facts for legal error." Id. at
time that defendant committed the crimes in this case, he was
on supervision and had previously been convicted for prior
acts of domestic violence against the victim. As a result of
that supervision, he was prohibited from having contact with
the victim and prohibited from drinking alcohol.
Additionally, at the time that he committed the crimes in
this case, defendant had active warrants for his arrest.
Or.App. 462] Notwithstanding the prohibitions on his conduct
due to his supervision, on the evening of August 13, 2015,
defendant and the victim were drinking together in the
victim's apartment. Also present in the apartment was the
victim's two or three-month-old infant, H. At some point
after 1:00 a.m. on August 14, 2015, defendant fell asleep.
defendant fell asleep, the victim went into the bathroom.
Shortly thereafter, defendant woke up and went into the
bathroom as well. Defendant grabbed the victim with one hand
in the throat and jaw area, which cut off her breathing.
Defendant then lifted the victim off the toilet by her
throat, carried her out of the bathroom to the living room-a
distance of 15 to 25 feet-and threw her on a couch. The time
between when defendant lifted the victim off the toilet and
when he threw her on the couch was approximately 10 to 15
seconds. Defendant then struck the victim while she was on
victim attempted to leave the apartment and got as far as the
porch before defendant intercepted her, grabbed her and
brought her back into the apartment. Shortly thereafter, H
woke up. The victim picked H up, and while she was holding H,