Martinez v. Cain

“When 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.” ORS 161.067(1).

Petitioner was convicted and given separate sentences for Robbery in the First Degree and Attempted Aggravated Felony Murder based on the predicate felony of Robbery in the First Degree. Petitioner sought post-conviction relief, contending that his counsel had been constitutionally inadequate because he failed to argue that the convictions should be merged. The post-conviction court granted summary judgment against petitioner and a majority of the Court of Appeals panel affirmed, holding that Petitioner had not been prejudiced by his counsel's failure to object, because as a matter of law, the sentences would not merge. On appeal, Petitioner argued that, under ORS 161.067(1), his convictions should have been merged. “When 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.” ORS 161.067(1). The Court held that because every element of the Robbery count was required to be proved as part of the Attempted Aggravated Murder count, the two counts should have been merged on proper objection. Reversed and remanded.