State v. Edwards 286 Or App 99 (2017)

Under ORS 137.123(5)(b), “[a] single act produces only one set of harms, even if the act constitutes multiple offenses.” State v. Rettmann, 218 Or App 179, 186 (2008).

Defendant appealed from the trial court’s order that his sentences for first-degree assault run consecutively to his sentence for attempted murder. Defendant assigned error to the trial court’s conclusion that ORS 137.123(5) authorized consecutive sentences. On appeal, Defendant argued that “his conduct underlying the offense of first-degree assault—firing his gun at [a police officer]—did not cause or risk a loss, injury, or harm that was distinct from the loss, injury, or harm caused or risked by the conduct underlying the offense of attempted aggravated murder.” Specifically, Defendant argued that, under ORS 137.123(5)(b), the phrase “loss, injury, or harm” refers to those harms or risks arising from Defendant’s actual conduct in committing the two offenses. The State argued that the inquiry should instead focus on the harm that the legislature sought to prevent in enacting each of the statutes defining the substantive offenses. Under ORS 137.123(5)(b), “[a] single act produces only one set of harms, even if the act constitutes multiple offenses.” State v. Rettmann, 218 Or App 179, 186 (2008). In this case, Defendant pleaded guilty to both counts, admitting in his plea petition that he “intentionally attempted to cause the death of the police officer, while he was working as a police officer . . . by causing serious physical injury to him with a firearm.” The Court of Appeals held that the record in this case did not support the imposition of consecutive sentences under ORS 137.123(5)(b) because the record lacked discrete facts demonstrating that the assault offense caused or risked "greater or qualitatively different" harms than those that were caused or risked by the attempted-murder offense. ORS 137.123(5)(b). Remanded for resentencing; otherwise affirmed.