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State v. Warren5/31/2000
ssault conviction and 9-C for the attempted murder conviction. The court sentenced defendant as a dangerous offender, ORS 161.725, and imposed a durational departure sentence of 230 months minimum imprisonment on the assault conviction and a 90-month consecutive sentence on the attempted murder conviction. In explaining the consecutive sentences, the court found:
"Then proceeding to the charge of attempted murder. That's a level nine charge and it's also a Measure 11 charge.
" * * * * *
"And at this point I am making a factual finding that the attempted murder was not merely an incidental violation of a separate statutory provision in the course of commission of a more serious crime.
"The crime of attempted murder, rather, was an indication of defendant's willingness to commit more than one criminal offense. It indicated that the defendant not only had the willingness to create a serious physical injury to this victim, which he did accomplish, but that the defendant also had an intent to kill this victim, which he failed to realize.
"Further, the Court makes a finding that the crime of attempted murder created a risk of causing greater and qualitatively different loss, injury and harm to this victim. Having the intent to kill creates a risk of causing greater and qualitatively 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 trial court made the findings required both by ORS 137.123(5)(a) and (5)(b) in order to impose consecutive sentences. ORS 138.220; State v. Racicot, 106 Or App 557, 561, 809 P2d 726 (1991). We do not weigh the evidence underlying those findings but, instead, we review the court's decision to impose consecutive sentences for errors of law. Id. Defendant argues that the trial court erred, as a matter of law, in imposing consecutive sentences under both ORS 137.123(5)(a) and (b), which provide that:
"(5) 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 a 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 of conduct."
Because consecutive sentences are permissible if authorized under either provision of subsection (5), we must affirm defendant's sentences if the trial court's decision was correct under either subsection (a) or (b). For the reasons explained below, our analysis should begin and end with defendant's challenge to the trial court's decision to impose consecutive sentences under ORS 137.123(5)(a). Defendant asserts that the trial court erred in relying on subsection (5)(a) because "with one single shot being fired, the evidence of * * * 'willingness' is altogether lacking." Defendant reasons that because he admittedly intended to murder the victim, he could not have intended to inflict serious physical injury as well
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