State v. Kizer , 308 Or. 238 ( 1989 )

LINDE, J.

Under the 1971 revision of the Oregon Criminal Code, a person commits forgery if “with intent to injure or defraud, the person:

“(a) Falsely makes, completes or alters a written instrument; or

“(b) Utters a written instrument which the person knows to be forged.”

ORS 165.007(1). A later statute, ORS 161.062(1), provides:

“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. * * *.”¹

The question before us is whether the forging and uttering of a single check in a single transaction at one time and place “violates two or more statutory provisions” and gives rise to separately punishable offenses.

Two counts of a four-count indictment charged, in Count 1, that defendant falsely made and completed a personal check on the account of Barbara Glaze, and, in Count 2, that as part of the same act and transaction defendant uttered the same check, knowing the check to be forged. The third and fourth counts charged an attempted theft of money and a theft of Glaze’s purse.

After a jury found defendant guilty of all four charges, the circuit court suspended imposition of sentence and put defendant on probation on Count 4, the theft. The court sentenced defendant to five years’ imprisonment on Count 1, imposed a concurrent five-year sentence on Count 2, and merged Count 3 with Count 2, stating that those counts were “pretty much the same thing.” On appeal, defendant asserted that the facts charged would support only one conviction and sentence for forgery either by falsely making or by uttering the single check. Although defendant had not preserved the error in the trial court, she urged the Court of Appeals to correct the erroneous sentence pursuant to ORAP 7.19, quoting the court’s observation: “This court has the discretion under ORAP 7.19 to review allegedly illegal or unauthorized sentences apparent on the face of the record, even when no objection was made below.” State v. Walker, 68 Or App 561, 565, 683 P2d 1006 (1984).² The state’s response to the appeal primarily relied on defendant’s failure to preserve the error in the circuit court, although the state also presented a response on the merits of the claim. The Court of Appeals affirmed the sentences without opinion. State v. Kizer, 94 Or App 564, 767 P2d 120 (1988).

We consider it appropriate to review the sentencing issue in conjunction with the same issue in State v. Crotsley, 308 Or 272, 779 P2d 600 (1989), also decided today. Defendant’s failure to object to the sentence in the trial court was briefed and understood when this court allowed the petition for review, and nothing new has occurred or been discovered to alter the decision to allow it. If that decision had been based on another issue and an unlawful sentence had been brought to our attention, we likely would correct it without inquiring whether in the particular case two sentences for one crime are “harmless,” and having allowed review, we correct it here; the court has not made it a practice to reargue decisions to allow review in its opinions. Unlike many trial errors, a failure to object to an unlawful sentence does not require a retrial and the error often can be determined without reference to evidence. There is no claim that the failure to object misled the court or prejudiced the opposing party, and we are not persuaded that it is likely to have done so. We reverse the decision of the Court of Appeals and remand the case to the circuit court for resentencing.

State v. Crotsley, supra, explains that the 1985 legislature enacted ORS 161.062 after this court, in State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979), had drawn attention to incomplete legislative directions on the complex questions of multiple charges, trials, convictions, and sentences for acts that violate more than one criminal prohibition in the course of what, in non-legal terms, would appear as one “crime.”³ Legislative direction, however, was not lacking with respect to forgery. The state’s brief candidly states:

“Although the two counts appear to require proof of two different elements, making and uttering, it appears that the legislature did not intend that these two methods of committing forgery constitute separate offenses. Commentary to the Oregon Criminal Code of 1971 explained that ORS 165.007, defining methods of committing forgery, did not necessarily create two offenses when one makes and utters a single document. It states:

“ ‘The draft would clarify the law on the point in issue by providing that forgery is a single crime that may be committed by falsely making, completing, or altering a written instrument or by uttering a forged instrument with knowledge of its forged character.’

“(Id., p 198). Given that the legislature did not intend that separate crimes would arise from the making and uttering of a single check, arguably the making and uttering are not separate elements.”

The Commentary cited by the state explained that the new forgery statute adopted the rule stated in Daugharty v. Gladden, 217 Or 567, 341 P2d 1069 (1959), cert den 361 US 867 (1959), that existing Oregon law, OCLA 23-560, “clearly state[d] but a single crime which may be committed by committing forgery or uttering, or both, as these crimes were known to the common law.” Oregon Criminal Code of 1971, 159 (1970 ed) (emphasis added).

Another way to state the proposition is that when ORS 165.007 defined the “single crime” of forgery as making or uttering an instrument, the terms “falsely makes, completes or alters a written instrument or utters a written instrument which the person knows to be forged” constituted a single “provision” for purposes of ORS 161.062, only made easier to read by inserting the letters (a) and (b). They clearly would have been a single provision for purposes of ORS 162.062 without those letters, as explained in the Commentary to the 1971 Criminal Code quoted by the state, and the formal insertion of the lettering did not change the substance. The same structure is used, for example, in ORS 813.010, which defines the offense of driving while under the influence of intoxicants as driving a vehicle when one “(a) [h]as .08 percent or more by weight of alcohol in the blood [or] (b) [i]s under the influence of intoxicating liquor * * *.” “Statutory provision” in ORS 161.062 was not defined to mean a section, subsection, or paragraph; consistent with its purpose, the term can be interpreted to mean any provision defining a “single crime,” whatever visual form the provision is given.

In the present case, the state argues only that making and uttering the same instrument could be two distinct crimes when there is a significant time separation between the making and the uttering; it concedes that if the court does not find such a separation, the two forgery offenses are “appropriate for merger.” This case does not present an occasion to test the state’s theory, which seems to relate to the statute’s reference to “the same conduct or criminal episode.” It appears that on March 2,1987, defendant took Glaze’s billfold, checkbook and address book from Glaze’s purse, which also contained credit cards and other identification (the theft charged in Count 4), and that defendant signed Glaze’s name on one of Glaze’s checks and tried to cash it by sending it from her automobile to a drive-up teller, who, however, declined to cash the check when defendant would not answer a further identifying question. The state did not charge or show that defendant had falsely made the check at some other place and time; to the contrary, the indictment charged that defendant falsely made the check and uttered it as “part of the same act and transaction.” We therefore express no view on the state’s theory that a lapse of time between making and uttering the same check would make these acts two distinct crimes.

The decision of the Court of Appeals affirming the sentences is reversed, and the case is remanded to the circuit court for resentencing.

1 Subsection (1) continues:

“However, when one of the statutory provisions violated is burglary in any degree, and the other statutory provision violated is theft or criminal mischief in any degree, and the theft or criminal mischief was pleaded as the intended crime of the burglary, the burglary and the theft or criminal mischief shall constitute only one punishable offense.”

2 ORAP 7.19(5) provides:

“Alleged errors will not be considered on appeal unless preserved in the lower court and assigned as error in the appellant’s or cross-appellant’s opening brief, except that the appellate court may take notice of errors of law apparent on the face of the record. Assignments of error that the court can consider only by searching the record for the proceedings complained of will not be considered.”

3 State v. Cloutier quoted five distinct issues identified in Remington and Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis L Rev 528, 529 (1961):

“(1) For how many offenses should a suspect be prosecuted?

“(2) Of these offenses charged, which should be submitted to the jury for its consideration?

“(3) Where more than one offense is submitted to the jury, for how many offenses may the jury properly convict the defendant?

“(4) Where there is conviction for more than one offense, for how many offenses is it proper to sentence the defendant?

“(5) Under what circumstances may an accused be subjected to separate, successive prosecutions instead of adjudicating his liability in a single proceeding?”

Cloutier, like the earlier State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971), held that a burglary and the intended larceny after entry only gave rise to a single conviction and sentence, the rule that was maintained in the second sentence of ORS 161.062(1), supra note 1.

Cloutier also noted that the term “merger” should be “reserved for the narrow situation when the completion of one offense necessarily includes commission of acts sufficient to constitute violation of another statute.” 286 Or at 586. Although defendant argues that his forgery convictions should “merge,” the correct issue is whether making and uttering the check in this case was a single crime.