State v. Porter

ORS 137.123(5) provides the court with discretion to impose consecutive sentences for separate convictions arising out of continuous and uninterrupted conduct so long as there's an indication of willingness to commit more than one criminal offense or the criminal offense caused or created a greater or qualitatively different loss, injury or harm during the conduct.

Defendant appealed consecutive sentences and argued that the record was insufficient to support the determination that Defendant evinced an intent to commit more than one offense and that the risks posed by driving while suspended on count 2 created a risk of greater harm than DUII. Defendant plead guilty to driving while suspended and DUII after he nearly struck a group of pedestrians and, after contact with an officer, it was revealed he had a blood alcohol content of .26 percent. ORS 137.123(5) provides the court with discretion to impose consecutive sentences for separate convictions arising out of continuous and uninterrupted conduct so long as there's an indication of willingness to commit more than one criminal offense or the criminal offense caused or created a greater or qualitatively different loss, injury or harm during the conduct. The Court held that the trial court erred and there was no evidence of multiple intents or discrete facts to support an inference that Defendant acted with a willingness to commit multiple offenses. The DUII conviction with the driving while suspended was merely incidental since the convictions were predicated by the single act of driving. Reversed and remanded for resentencing; otherwise affirmed.