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State v. Warren5/31/2000
y different loss, injury, or harm than merely having the intent to cause serious physical injury.
"The Court, therefore, is going to proceed to sentence to a consecutive sentence for the charge of attempted murder."
The issue is whether the trial court's imposition of consecutive sentences for attempted murder with a firearm and assault in the first degree was error under ORS 137.123(5). That statute provides:
"The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury, or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course or conduct." (Emphasis added.)
We do not conduct a de novo review of the record in determining whether a consecutive sentence is authorized under ORS 137.123. State v. Racicot, 106 Or App 557, 561, 809 P2d 726 (1991). Rather, our standard of review is for errors of law appearing in the record or, in this case, for whether there is evidence to support the trial court's findings. Subsection (5)(a) requires that the criminal conduct for which a consecutive sentence is contemplated be not merely an "incidental" violation of a separate statutory provision but "an indication of defendant's willingness to commit more than one criminal offense." The statute focuses on a defendant's volition or the exercise of his or her will at the time of the commission of the crimes. Apparently, the trial court inferred from the fact that because defendant committed the crime of attempted murder, he also had the willingness to cause serious physical injury to the victim as well. The problem with the trial court's finding is that it could not reasonably infer from the fact that defendant shot the victim in the head at close range that defendant intended to kill the victim and that he acted volitionally to cause the victim serious physical injury. If defendant intended to kill the victim by the single shot to the victim's head, he could not have had the intent only to cause him serious physical injury. The statute requires more than an incidental violation of a separate statutory provision in the course of a commission of a more serious crime as a basis for a consecutive sentence. The firing of a single shot into the victim's head by defendant could demonstrate a willingness to commit the crime of murder, but in the absence of findings of other facts that demonstrate a willingness to commit the additional offense of first-degree assault, it was error to impose consecutive sentences under ORS 137.123(5)(a).
Our opinions in State v. Rojas-Montalvo, 153 Or App 222, 957 P2d 163, rev den 327 Or 192 (1998), and in State v. Sumerlin, 139 Or App 579, 913 P2d 340 (1996), are not to the contrary. Both cases involve factual circumstances on which we relied to uphold consecutive sentences under ORS 137.123(5)(a). In Rojas-Montalvo, the defendant was sentenced to consecutive sentences for a conviction for unlawful possession of a controlled substance and for unlawful delivery of a controlled substanc
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