State v. Earls

For the purpose of applying the presumptive 13-month sentence under ORS 137.717(b) a conviction in a court-martial does not apply. Where the Court of Appeal finds plain error in the trial court’s failure to merge guilty verdicts on particular counts, the Court will exercise its discretion to correct the error.

Defendant was convicted of 12 counts writing a bad check; two counts of first-degree theft; and one count second-degree theft. Subsequently, he appealed his 13-month presumptive sentencing under ORS 137.717, and the court’s failure to merge each count for writing a bad check with his guilty verdicts for first- and second-degree theft. Under ORS 137.717, where a court finds that the defendant has four previous convictions in state or federal court for the crimes listed, including bad check writing, the court may impose a presumptive 13-month sentence. The Court of Appeals held that a court-martial did not constitute federal court, and as such ORS 137.717 did not apply to defendant. The Court also held that the trial court’s failure to merge the twelve counts into three counts – two for first-degree theft and one for second-degree theft – was plain error. The Court held discretion to correct the trial court’s error. Reversed and remanded for resentencing, otherwise affirmed.