State v. Provancha

Under ORS 137.123(5), when a court orders consecutive sentencing for a defendant found guilty of two incidents occurring from the same continuous conduct, it must indicate whether (a) “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or (b) the criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense . . . .”

Defendant appealed his sentencing order by the trial court. Defendant assigned error to the trial court’s determination of consecutive sentencing. Defendant argued that the record did not support consecutive sentencing. The trial court may order consecutive sentencing when a defendant is found guilty of two incidents occurring from the same continuous conduct when (a) “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or (b) the criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense . . . .” ORS 137.123(5). The Court must determine whether the defendant’s commission of second-degree assault was an attempt to commit a distinct event from the commission of his greater offense. State v. Edwards, 286 Or App 99, 103, 399 P3d 463. The Court found that the trial court did not indicate which analysis it used for its order and held that the record did not justify consecutive sentencing because the second-degree assault was not proven to be more than merely incidental and that the risks to the police officer were the same as the original attempted murder charge. Reversed and remanded.