State v. Burns

A trial decision that alters a defendant’s criminal history determination, but does not alter the sentence received, is justiciable as a defendant’s only avenue for challenging a criminal history determination. Under ORS 131.505(4), a series of crimes may constitute a single criminal objective if separated by only a short period of time.

Burns appeals his conviction for two counts of criminal treatment in the first degree, arguing that the two incidents should constitute a single criminal episode for purposes of sentencing. Burns caused physical injury to two of his children by spanking them repeatedly after they made a mess. The trial court determined that injuring the two children was two separate episodes for the purpose of sentencing. Burns appealed, arguing that the abuse of two children should have been considered a single criminal episode as they constituted as single criminal objective. The State argued that this issue is not ripe, and therefore non-justiciable, because changing Burns’s criminal history determination would not result in a different sentence, and that the trial court correctly determined the abuse was two distinct criminal episodes. The Court held that Burns’ appeal is justiciable because it presents Burns’ only opportunity to challenge the trial court’s criminal history determination, and that the trial court erred in considering the abuse two separate criminal episodes because the abuse was directed towards the accomplishment of a single criminal objective separated by a short time. Remanded for resentencing; otherwise affirmed.