State v. Isbell

DEITS, C. J.,

concurring.

I agree with the result reached by the majority and, generally, with its reasoning. I write separately to emphasize several contextual statutes that I find particularly persuasive in concluding that the majority’s reading of the statute is correct.

By its terms, ORS 137.712(6)(b) defines “previous conviction” as “a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode.” (Emphasis added.) The question presented in this case is whether a “previous conviction” includes a conviction for a crime committed in a separate criminal episode but tried in the same criminal proceeding or case. I agree with the majority that it does and that the trial court therefore properly sentenced defendant under ORS 137.700, rather than ORS 137.712, for the second and third crimes for which he was convicted in this case.

The emphasized phrase establishes a limitation on what crimes may be considered “previous convictions” for the purpose of sentencing under ORS 137.712: they cannot have been committed in the same “criminal episode.” ORS 131.505(4) defines “criminal episode” for the purpose of the double jeopardy statutes, ORS 131.515 to ORS 131.535, as “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment *531of a single criminal objective.” I believe that definition provides guidance here as to the meaning of the phrase “criminal episode” in ORS 137.712(6)(b).

Next, ORS 132.560 sets out circumstances in which two or more offenses may or are required to be tried together and, conversely, when they may or must be tried separately. See ORS 132.560(l)(b)(A)-(C) (two or more offenses may be charged as separate counts in the same charging instrument (and thus tried in the same criminal proceeding) if the offenses are of the same or similar character, are based on the same act or transaction, or are based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan”); ORS 132.560(2) (if there are two or more charging instruments pertaining to offenses described in ORS 132.560(1), the court may order them to be consolidated); ORS 132.560(3) (if it appears that the state or the defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2), the court may order separate trials or other relief).

Although ORS 132.560 does not use the term “criminal episode,” it is apparent that some of the circumstances described therein, such as some offenses “based on the same act or transaction,” ORS 132.560(l)(b)(B), can be encompassed within that concept. See State v. Boyd, 271 Or 558, 565-66, 533 P2d 795 (1975) (holding that “same criminal episode” as used in ORS 131.515 is “synonymous with same transaction” in ORS 132.560); State v. Knight, 160 Or App 395, 403, 981 P2d 819 (1999).1 Thus, crimes committed in the same criminal episode may be tried together. However, crimes that were not committed in the same criminal episode also may be tried together — for example, when they are of the same or similar character. ORS 132.560(l)(b)(A). Finally, two or more offenses that were committed as part of the same criminal episode may be charged and tried separately. ORS 132.560(3). The second of those circumstances is relevant here: defendant committed two or more offenses that were *532not part of the same criminal episode as defined in ORS 131.505(4); the offenses nevertheless were tried together in the same proceeding as offenses of the same or similar character under ORS 132.560(l)(b)(A).

The next contextual provisions of interest are those demonstrating that the legislature knows how to refer, in a sentencing statute, to a “previous proceeding” or the “same proceeding.” See, e.g., ORS 137.124(1), (2) (providingfor service in state or local facilities of consecutive sentences imposed in “a previous proceeding” or “the same proceeding”). Similarly, it knows how to refer to sentences that have been “previously imposed” or “simultaneously imposed.” See, e.g., ORS 137.123 (providing for court authority to impose sentences concurrently or consecutively to “any other sentence which hás been previously imposed or is simultaneously imposed”).

Finally, as one additional example, it is of interest that the legislature knows how to provide expressly that a sentence may be imposed only “upon conviction for [a crime having as an element the use or threatened use of a firearm] committed after punishment” or “after imprisonment” for a previous conviction for a crime involving a firearm. ORS 161.610(4)(b), (c).

Again, in defining “previous conviction” for the purpose of ORS 137.712, the legislature expressly provided that a “previous conviction” includes only offenses committed in a “separate criminal episode” and thus, does not include offenses committed in the same criminal episode. In so providing, the legislature presumably was aware that, under ORS 132.560, crimes committed in, in effect, separate criminal episodes nevertheless can be charged in the same indictment and tried in the same proceeding. Nevertheless, it did not expressly address that circumstance or any other circumstance that would impose a further limitation on which crimes can be considered “previous crimes,” such as the one in ORS 161.610 relating to crimes for which “punishment” or “imprisonment” has not been completed.

Under this state’s rules of statutory construction, including the admonition that we are not to insert what the legislature has omitted, it is apparent to me that we therefore cannot read into ORS 137.712(6)(b) any other limitation on *533the definition of “previous conviction” than the one that the legislature has expressly addressed. Specifically, as pertinent here, we cannot read into ORS 137.712(6)(b) a limitation relating to crimes tried in the “same proceeding.” Accordingly, for the purposes of sentencing under ORS 137.712, although a “previous conviction” does not include a crime committed in the same criminal episode, it does include a crime committed in a separate criminal episode and tried in the same proceeding.

Here, defendant was convicted of three offenses committed in separate criminal episodes, albeit the offenses were tried in the same proceeding. Under those circumstances, defendant was precluded, under the criterion in ORS 137.712(2)(d)(D) and the definition of “previous conviction” in ORS 137.712(6)(b), from obtaining sentencing under ORS 137.712 for his second and third convictions. For all of the above reasons, I concur in the majority’s conclusion.

But see State v. Bush, 174 Or App 280, 289-93, 25 P3d 368 (2001) (where the indictment alleged that the defendant’s crimes occurred as part of “the same act and transaction,” but the defendant did not dispute that the crimes, in fact, arose from separate criminal episodes, the trial court did not err in treating the crimes as separate criminal episodes for criminal history sentencing purposes).