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State v. Nunes

Court of Appeals of Oregon

November 28, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
THOMAS LEE NUNES, Defendant-Appellant.

          Argued and submitted January 30, 2017

          Clackamas County Circuit Court CR1200998; Kathie F. Steele, Judge.

          Kali Montague, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant was convicted in 2012 of five offenses, including unlawful use of a weapon (Count 1) and two counts of felon in possession of a fire-arm (FIP) (Counts 2 and 6). In his first appeal, State v. Nunes, 268 Or.App. 299, 341 P.3d 224 (2014), the Court of Appeals reversed defendant's FIP convictions and remanded with instructions to enter a single conviction for FIP and for resen-tencing. Defendant appeals the judgment entered on remand after resentencing, raising three assignments of error. In his first assignment of error, defendant contends that the trial court plainly erred in imposing a 10-year gun minimum sentence on Count 1 under ORS 161.610(4)(b). In a supplemental assignment of error, he contends that the trial court plainly erred in concluding that ORS 161.610(3) disqualified him for eligibility for earned time on Count 1. And, in his second assignment of error, defendant contends that the trial court erred in failing to merge his guilty verdict on Count 2 (FIP) with his guilty verdict on Count 1 (UUW-firearm) under ORS 161.067(1). Held: Defendant's first assignment of error did not qualify for plain-error review because the alleged error was not [295 Or.App. 92] beyond reasonable dispute. The Court of Appeals declined to address defendant's supplemental assignment of error because correction of that alleged error would not afford defendant the relief that he sought. Finally, the trial court did not err in failing to merge defendant's guilty verdicts on Counts 1 and 2.

         [295 Or.App. 93] ARMSTRONG, P. J.

         Defendant was convicted in 2012 of one count of unlawful use of a weapon with a firearm (UUW-firearm) (Count 1), ORS 161.610; ORS 166.220; two counts of felon in possession of a firearm (FIP) (Counts 2 and 6), ORS 166.270; one count of menacing constituting domestic violence (Count 3), ORS 163.190; and one count of fourth-degree assault constituting domestic violence (Count 4), ORS 163.160(2). In defendant's first appeal in this case, we reversed the two FIP convictions and remanded with instructions to enter a single conviction for FIP and for resentencing. Otherwise, we affirmed. State v. Nunes, 268 Or.App. 299, 341 P.3d 224 (2014) (Nunes I). Defendant now appeals the judgment entered on remand, once again seeking resentencing.

         In his first assignment of error, defendant contends that the trial court erred in imposing a 10-year gun minimum sentence under ORS 161.610(4)(b) on his conviction for Count 1 (UUW-firearm) because he had not previously been sentenced under ORS 161.610.[1] Defendant did not preserve that claim of error but urges us to exercise our discretion to consider it under ORAP 5.45(1) as plain error. Also related to his sentence on Count 1, defendant contends in a supplemental assignment of error that the court plainly erred in concluding that ORS 161.610(3) disqualified him for eligibility for earned time.[2] Finally, in his second assignment of error, defendant challenges the trial court's failure to merge his guilty verdict on Count 2 (FIP) with his guilty verdict on Count 1 (UUW-firearm).[3] For the reasons set out below, we decline to address defendant's first and supplemental assignments of error, and we reject his second assignment. Accordingly, we affirm.

         [295 Or.App. 94] The facts material to the issues presented on appeal-which are primarily procedural-are not contested by the parties. In August 2012, defendant was convicted and sentenced for the five offenses described above. Nunes I, 268 Or.App. at 301 n 1.[4] As relevant here, on Count 1 (UUW-firearm), the court imposed a 10-year gun minimum sentence pursuant to ORS 161.610(4)(b) and ordered "No good time/earned time pursuant to ORS 161.610(3)"; on Counts 2 and 6 (FIP), the court imposed separate convictions and sentences. Defendant appealed, contending that the trial court had erred in holding that the "anti-merger statute," ORS 161.067, prevented the two FIP counts from merging. 268 Or.App. at 304.[5] We agreed and reversed and remanded those convictions with instructions to enter a single conviction for FIP and for resentencing. Id. at 308.

         At the resentencing hearing, the state asked the trial court to merge Count 6 with Count 2, as instructed by this court, and otherwise to "follow through with the same sentence," including again imposing a 10-year gun minimum under ORS 161.610(4)(b) on Count 1 (UUW-firearm), based on the fact that it was defendant's second conviction under that statute. As it did at defendant's original sentencing, the state relied on defendant's 1995 conviction for UUW as the predicate offense. The state also asserted that defendant was not eligible for earned time under ORS 161.610(3). Defendant, for his part, argued only that Count 1 (UUW-firearm) should merge into Count 2 (FIP) under State v. Flores, 259 Or.App. 141, 313 P.3d 378 (2013), rev den, 354 Or. 735 (2014), which the state disputed. Defendant did not address the state's request that the court again impose a 10-year gun minimum sentence on Count 1, nor did he contradict the state's assertion that, under ORS 161.610(3), defendant was not eligible for earned time.

         [295 Or.App. 95] The trial court agreed with the state in all respects. That is, it declined to merge Counts 1 and 2, merged Count 6 into Count 2 as instructed by Nunes I, and otherwise imposed the same sentences as it had originally, including the 10-year gun minimum sentence on Count 1. As to that count, the judgment, again, also stated:

"No good time/earned time pursuant to ORS 161.610(3). * * *. "The Defendant may not be considered by the executing or releasing authority for any form of Reduction in Sentence, Conditional or Supervised Release Program, Temporary Leave From Custody, [or] Work Release."

         Defendant appeals that judgment.

         We begin with defendant's first assignment of error, in which he challenges the trial court's reimposition of a 10-year gun minimum sentence on Count 1 (UUW-firearm) under ORS 161.610(4)(b). He contends that the 1995 UUW conviction on which the court relied for a predicate offense was not a conviction and sentence under ORS 161.610, and, therefore, the court erred in imposing the 10-year sentence applicable to a second gun minimum offense under ORS 161.610(4)(b), rather than a first gun minimum sentence of five years under ORS 161.610(4)(a). Defendant acknowledges that he did not preserve that issue at the resentencing hearing but requests that we review it as plain error.[6] We reject that request.

         Appellate courts generally will not consider a claim of error that has not been preserved in the trial court; however, the court "may, in its discretion, consider a plain error." ORAP 5.45(1). Three criteria must be satisfied for a claim of error to qualify as plain error: (1) "it must be an error of law"; (2) the error must be "obvious, and not reasonably in dispute"; and (3) the error must be "apparent on the record without requiring the court to choose among competing inferences." State v. Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013). If the asserted error satisfies those requirements, we then must determine whether to exercise our [295 Or.App. 96] discretion to review the error, a decision that is to be made with "'utmost caution'" because plain-error review undermines the principles underlying the preservation requirement. Id. at 630-31 (quoting Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991)). In this case, the parties focus their arguments on the second requirement for plain-error review-whether the alleged error is obvious or beyond reasonable dispute. Because, as explained below, we conclude that it is not, we decline to address the error.

         The gun minimum statute, ORS 161.610, provides, as relevant: "(2) The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words 'with a firearm' to the title of the offense. The unaggravated crime shall be considered a lesser included offense.

"(3) Notwithstanding the provisions of ORS 161.605 Or. 137.010(3) and except as otherwise provided in subsection (6) of this section, if a defendant is convicted of a felony having as an element the defendant's use or threatened use of a firearm during the commission of the crime, the court shall impose at least the minimum term of imprisonment as provided in subsection (4) of this section. Except as provided in ORS 144.122 and 144.126 and subsection (5) of this section, in no case shall any person punishable under this section become eligible for work release, parole, temporary leave or terminal leave until the minimum term of imprisonment is served, less a period of time equivalent to any reduction of imprisonment granted for good time served or time credits earned under ORS 421.121, nor shall the execution of the sentence imposed upon such person be suspended by the court.
"(4) The minimum terms of imprisonment for felonies having as an element the defendant's use or threatened use of a firearm in the commission of the crime shall be as follows:
"(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years, except [295 Or.App. 97] that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 10 years.
"(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.
“***
"(5) If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4) (a) ...

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