State v. Silver

283 Or.App. 847

391 P.3d 962

STATE of Oregon, Plaintiff-Respondent,

v.Robert SILVER, Defendant-Appellant.

A158651

Court of Appeals of Oregon.

Argued and submitted November 15, 2016.

February 23, 2017

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

Defendant was found guilty on multiple counts of animal abuse, based on his failure to provide minimally adequate care for his herd of alpacas. Those counts included a felony count (Count 1) and a misdemeanor count (Count 6) of first-degree animal abuse, both of which involved the failure to provide care for the same animal. On appeal, defendant argues, among other contentions, that the trial court erred by entering separate convictions on Counts 1 and 6 rather than merging the guilty verdicts for those counts into a single conviction.

The state concedes that the trial court erred in failing to merge the guilty verdicts on Counts 1 and 6, and it further concedes that, under our existing case law—specifically, State v. Skaggs , 275 Or.App. 557, 560-61, 364 P.3d 355 (2015), rev. den. , 359 Or. 667, 379 P.3d 528 (2016) —the error is one that involves the reversal of a judgment of conviction under ORS 138.222(5)(b), which triggers an automatic remand for resentencing on all affirmed counts. However, the state argues that Skaggs was wrongly decided and urges us to overrule it. According to the state, merger errors like the one committed in this case should instead be governed by paragraph (a) of ORS 138.222(5), which allows this court to determine whether or not an error is one that actually "requires resentencing." In the state's view, because the sentence on Count 6 runs concurrently with a longer sentence on Count 1, the merger error in this case does not "require resentencing" and can be remedied simply by a remand for entry of a "corrected judgment" that reflects a single conviction for Counts 1 and 6. Thus, the state asks that we remand with that more limited disposition and otherwise affirm with regard to defendant's sentences. For the reasons that follow, the state has not persuaded us to overrule our decision in Skaggs . Accordingly, we reverse and remand for resentencing based on the trial court's failure to merge the guilty verdicts on Counts 1 and 6, which obviates the need to address defendant's remaining assignments of error concerning sentencing.¹

As described above, defendant's merger argument concerns two counts of first-degree animal abuse under ORS 167.330. Under that statute, first-degree animal abuse is a misdemeanor, unless certain aggravating factors are present, in which case it becomes a Class C felony. ORS 167.330(2), (3). One of those aggravating factors is that the offense was part of an episode involving 10 or more animals. ORS 167.330(3). In addition, if more than 40 animals were neglected, the crime category classification for the offense is increased for sentencing purposes. ORS 167.330(4).

In this case, the state separately alleged a felony (Count 1) and a misdemeanor (Count 6) under ORS 167.330 based on defendant's conduct toward one of his alpacas, an animal identified as number "5."² After defendant was found guilty on those counts, the prosecutor acknowledged that the two guilty verdicts should merge into a single conviction for first-degree animal abuse. Nonetheless, the trial court's judgment reflects two separate convictions for first-degree animal abuse on Counts 1 and 6. That was error, as the state correctly concedes, because both counts involved the same statutory provision, the same criminal episode, and the same victim. See ORS 161.067 (a defendant has committed "separately punishable offenses" when the "same conduct or criminal episode" violates two or more statutory provisions, each requiring proof of an element the others do not; involves two or more victims; or involves repeated violations of the same statutory provision against the same victim if separated by "sufficient pause").

The disputed issue on appeal is the consequence of that merger error. Just over a year ago, in Skaggs , we held that an error in failing to merge guilty verdicts is one that requires resentencing under ORS 138.222(5)(b). In Skaggs , as in this case, the state conceded that the trial court erred by failing to merge two guilty verdicts, but it argued that a remand for resentencing was unnecessary, relying on ORS 138.222(5)(a). We described that argument as follows:

"[T]he state urges us to reverse and remand for entry of a corrected judgment that merges defendant's convictions rather than to remand for resentencing. We should do so, the state asserts, because defendant received concurrent sentences on the two convictions and nothing in the judgment or record ‘suggests that merger of the two convictions would have any effect at all on the overall disposition’ of the case. The state further argues that, because the error can be fixed by the trial court's entry of a corrected judgment, the error in question is not one that ‘requires resentencing’ under ORS 138.222(5)(a)."

275 Or.App. at 559-60, 364 P.3d 355.

We rejected the state's argument, reasoning that "[t]his situation is controlled by ORS 138.222(5)(b), which provides that, ‘[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.’ " 275 Or.App. at 560, 364 P.3d 355 (emphasis in Skaggs ). We explained that, "because we are reversing the judgment of conviction on two of defendant's felony counts, and affirming defendant's third felony conviction, ORS 138.222(5)(b) requires that we ‘shall remand the case to the trial court for resentencing on the affirmed count or counts.’ " 275 Or.App. at 560, 364 P.3d 355 (emphasis in Skaggs ). Thus, we reversed and remanded for resentencing, notwithstanding the state's contention that resentencing would be "a waste of resources" because "defendant will receive the same sentence on remand." Id. at 561, 364 P.3d 355.

The state now contends that Skaggs wrongly decided that a merger error involves the reversal of a judgment of conviction for purposes of ORS 138.222(5)(b). In the state's view, that paragraph was never intended to apply to merger errors and addresses only the limited circumstance in which an appellate court reverses the underlying adjudication of guilt , so we should overrule Skaggs and direct a more limited remand in this case, as authorized by ORS 138.222(5)(a) ("If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing , the appellate court shall remand the entire case for resentencing." (Emphasis added.)).

As we recently reiterated in State v. Civil , 283 Or.App. 395, 416, 388 P.3d 1185 (2017), "we must not, and do not, ‘lightly overrule’ our precedents, including those construing statutes." (Quoting Aguilar v. Washington County , 201 Or.App. 640, 648, 120 P.3d 514 (2005), rev. den. , 340 Or. 34, 129 P.3d 183 (2006) ). We only overrule cases that are "plainly wrong, a rigorous standard grounded in presumptive fidelity to stare decisis ." Id. at 406, 388 P.3d 1185 (internal quotation marks omitted). "Such revisiting of statutory construction precedent, while necessarily quite rare, usually occurs when our precedent cannot be reconciled with the result that would follow application of a prescribed (or subsequently prescribed) mode of analysis or when we are presented with a qualitatively new, potentially dispositive contention not previously raised and addressed." Id. at 416, 388 P.3d 1185.

The state contends that this case presents the latter circumstance, because we decided Skaggs without the benefit of briefing regarding the correct interpretation of ORS 138.222(5)(b). That is, although the defendant in Skaggs sought a remand as a result of a merger error, he had not identified the statutory source of authority for that remand, and the state had expressly argued that the case was governed by ORS 138.222(5)(a) ; thus, neither party addressed the applicability of ORS 138.222(5)(b).

Although the state is correct that we construed the statute in Skaggs without briefing from the parties, that alone is not a sufficient basis on which to overrule our previous construction. "[W]e begin with the assumption that issues considered in our prior cases are correctly decided, and ‘the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.’ " Farmers Ins. Co. v. Mowry , 350 Or. 686, 698, 261 P.3d 1 (2011) (internal quotation marks omitted). Here, the state has not advanced any new argument that seriously undermines the conclusion we reached in Skaggs .

First, and most fundamentally, the state does not offer a compelling argument as to why the plain text of ORS 138.222(5)(b) excludes merger errors. The state frames the "precise question" of statutory construction as "whether the operative phrase in ORS 138.222(5)(b) —viz. , ‘reverses the judgment of conviction on any count and affirms other counts'—is a reference to the judgment itself or rather only a reference to the underlying adjudication of guilt ." (Emphases by the state.) The state then argues:

"Although paragraph (b) uses the phrase ‘judgment of conviction,’ it also limits its application only to those cases in which the appellate court ‘reverses ' the judgment of conviction on any count but nonetheless ‘affirms other counts.’ * *

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