State v. Martinez

Under ORS 137.123(5)(a), a trial court may impose consecutive sentences for attempted aggravated murder and the aggravating crime if it can be shown that the aggravating crime was not just an incidental crime but rather an indication of a defendant’s willingness to commit more than one criminal offense.

Defendant robbed another person and when that person refused and drove away, Defendant shot him in the arm. Defendant was charged and convicted of attempted aggravated murder and first-degree robbery with a firearm. The State requested consecutive sentences; the trial court granted partially consecutive sentences, finding that the latter offense was indicative “of [D]efendant’s willingness to commit more than one criminal offense” under ORS 137.125(5)(a). On appeal, Defendant argued that consecutive sentences were improper because by charging him with attempted aggravated murder instead of just attempted murder, the robbery is a required element and therefore incidental to the attempted aggravated murder. The Court rejected Defendant’s characterization of attempted aggravated murder as “robbery plus attempted murder;” rather, the crime is attempted murder which occurs during some aggravating circumstances that the legislature has deemed more heinous and deserving of heightened punishment. Because the two crimes were distinct from each other and indicated Defendant’s willingness to commit multiple crimes, the trial court’s sentencing of consecutive sentences was not erroneous. The Court held that Defendant committed the robbery before the attempted murder, and each offense was satisfied with distinct actions; Defendant committed robbery when he played with the gun and demanded the victim’s wallet, and then committed attempted aggravated murder by firing the gun at the victim. Affirmed.