Dorn-Privett v. Brown

“Under ORS 161.067(1), referred to as the “anti-merger” statute, “[w]hen the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”

Appellant petitioned for post-conviction relief following her conviction of three counts of attempted first-degree assault, three counts of unlawful use of a weapon (UUW), three counts of menacing, three counts of recklessly endangering another person, and second-degree disorderly conduct after driving her car into a neighbor during an argument. She assigned error to the trial court's decision to not merge the guilty verdicts for the UUW and for the attempted assault. At sentencing, her counsel argued that the verdicts for menacing and reckless endangerment should also merge with the attempted assault verdict, but did not explicitly base that argument on ORS 161.067(1). Appellant argued in her petition that her counsel failed to exercise reasonable professional skill and judgment for failing to raise the ORS 161.067(1) argument. “Under ORS 161.067(1), referred to as the “anti-merger” statute, “[w]hen the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.” The court reasoned that because attempted assault involves taking a “substantial step toward causing serious physical injury” and menacing requires putting one “in fear of imminent physical injury,” menacing can be proven without steps toward causing serious injury -- thus, the convictions for menacing and attempted assault should not merge. Further, because reckless endangerment requires only proof of a reckless mental state and attempted assault requires proof of an intentional mental state; and because a defendant can engage in conduct that constitutes “a substantial step toward causing serious physical injury without creating a substantial risk of that injury," those counts should also not merge. Therefore, the Court held that because there was no merger for those counts it was “not ‘so obvious’ that ‘any lawyer exercising reasonable professional skill and judgment’ would have argued for merger” under 161.067(1), and therefore Appellant did not suffer unconstitutional inadequate assistance of counsel. Affirmed.