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State v. Warren5/31/2000
lication of the statutory language to the facts. The statute juxtaposes two sets of circumstances, implicitly defining each as the opposite of the other. If the criminal offense for which a consecutive sentence is sought indicates "defendant's willingness to commit more than one criminal offense," it is not "merely an incidental violation of a separate statutory provision in the course of commission of a more serious crime." (Emphasis added.)
For reasons that he fails to explain, defendant assumes that the more serious offense--the offense to which the less serious offense must be sentenced consecutively--is attempted murder. That assumption is mistaken. Under ORS 137.123(5)(a), the "more serious" offense of conviction is first-degree assault, a category 10 offense. Attempted murder is assigned a ranking of 9 on the crime seriousness scale. See Oregon Criminal Justice Commission Sentencing Guidelines Implementation Manual, App-1, 2; OAR 213-004-0005; OAR 213-003-0001(17) (primary offense is offense with highest crime seriousness ranking). Under the statute, the sentencing court would have been required to impose concurrent sentences only if defendant's attempt to murder the victim was merely incidental to the assault and, thus, defendant did not evince a willingness to commit both crimes. However, defendant concedes his willingness to commit attempted murder, the less serious offense under the guidelines, and the offense for which the consecutive sentence was imposed. Because defendant touts his willingness to commit the less serious offense, it makes no sense to conclude that its commission was merely an incidental violation of a separate statutory provision in the course of committing assault. Commission of the less serious offense, rather, indicated defendant's willingness to commit more than one criminal offense.
In spite of the single act done, the offenses that defendant committed were not merely incidental to one another and the trial court did not err in imposing consecutive sentences for defendant's convictions under ORS 137.123(5)(a). It is not necessary to address defendant's argument that the court erred in concluding that ORS 137.123(5)(b) also authorized the imposition of consecutive sentences.
I respectfully dissent.
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