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State v. Ham

Court of Appeals of Oregon

October 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SERENGAW HAM, aka Tong Eleet, aka TR Marten, Defendant-Appellant.

          Submitted November 5, 2018

          Multnomah County Circuit Court 16CR28808 David F. Rees, Judge. (Judgment) Judith H. Matarazzo, Judge. (Supplemental Judgment)

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.

         Case Summary: Defendant pleaded no contest to, among other offenses, five counts of recklessly endangering another person, ORS 163.195. Before sentencing, defendant moved to merge all five guilty verdicts on the reckless endangerment counts. The sentencing court denied the motion and convicted defendant of all charges. Defendant appeals, contending that the five reckless endangerment counts should have been merged because the indictment did not specify each individual victim and the state's failure to clarify who in particular defendant was accused of endangering resulted in a conviction on an improper factual basis. Held: Under State v. Slagle, 297 Or.App. 392, 441 P.3d 644, rev den, 365 Or. 557 (2019), a defendant who makes an unqualified guilty or no contest plea assents to the broadest construction of the plea. Because defendant's plea could be construed to apply to five separate victims, and because defendant stipulated to facts necessary to convict him of five separate counts of reckless endangerment, the trial court did not err in denying defendant's motion.

          [300 Or.App. 305] LAGESEN, P. J.

         While intoxicated, defendant crashed his car into another car, pushing that car into another car, which was pushed into a third car. He was charged with, among other offenses, five counts of recklessly endangering another person, ORS 163.195. Defendant pleaded no contest to all charges and was convicted. On appeal, defendant contends that the five reckless endangerment verdicts should have been merged because the indictment did not specify each individual victim. Defendant also argues that the state's failure to clarify who in particular defendant was accused of endangering resulted in a conviction on an improper factual basis. In light of our holding in State v. Slagle, 297 Or.App. 392, 441 P.3d 644, rev den, 365 Or. 557 (2019), we reject defendant's arguments and affirm.

         Three people were in the first car that defendant hit; the second and third cars affected by the collision were each occupied by one person. The state charged defendant with multiple offenses, including five counts of reckless endangerment. Each reckless endangerment count was identically worded and alleged:

"The said Defendant(s) *** did unlawfully and recklessly create a substantial risk of serious physical injury to another person, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[;]
"This count is of the same and similar character as the conduct alleged in the other counts of this charging instrument."

         At the plea hearing, defendant stipulated to facts sufficient to support a finding of guilt on each of the reckless endangerment counts. Before sentencing, defendant moved the court to merge all five guilty verdicts on the reckless endangerment counts. He asserted that the indictment was inadequate to establish that each count had a separate victim. Therefore, defendant argued, he was charged with five counts of one offense that should merge. The court denied the motion and entered judgment on five separate convictions for reckless endangerment.

          [300 Or.App. 306] Defendant appeals, assigning error to the sentencing court's refusal to merge the five guilty verdicts on the reckless endangerment counts. He contends that the indictment did not say that each count was against a separate victim and the state did not identify each victim at the plea hearing. Therefore, defendant argues, his plea should not be construed to be an admission to the fact that each count involved a separate victim. Defendant also asserts that failure to identify the victims of the reckless endangerment charges means that defendant was sentenced for charges on an improper factual basis, which, in defendant's view, would be unconstitutional.

         We review the sentencing court's determination of whether to merge verdicts for errors of law. State v. Huffman,234 Or.App. 177, 183, 227 P.3d 1206 (2010). Under ORS 161.067, because it is undisputed that defendant's offenses involved the same conduct or criminal episode, whether the reckless endangerment verdicts merge turns on whether the sentencing court permissibly determined that each count involved a separate victim. ORS 161.067(2) provides that, "[w]hen the same conduct or criminal episode, though violating ...


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