author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Appellant, v. Alejandro CAZAREZ-LOPEZ, Defendant-Respondent.
    A161203
    Court of Appeals of Oregon.
    Argued and submitted September 29, 2017. December 12, 2018
    Doug M. Petrina, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Neil F. Byl, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest J. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

The state appeals in this criminal case, raising challenges to the trial court's imposition of sentence following defendant's guilty plea to one count of attempted murder (Count 1), four counts of first-degree assault (Counts 2, 3, 4, and 5), one count of felony fourth-degree assault constituting domestic violence (Count 6), and one count of unlawful use of a weapon (Count 7). In its first assignment of error, the state contends that the "trial court erred by merging defendant's guilty plea to felony fourth-degree assault constituting domestic violence on Count 6 into defendant's first-degree assault conviction on Count 2." In its second assignment of error, the state argues that the trial court "erred by concluding that it was precluded from imposing the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction." For the following reasons, we conclude that the trial court erred when it merged the guilt determination on felony fourth-degree assault constituting domestic violence into defendant's first-degree assault conviction. We further conclude that the trial court did not err when it declined to impose the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction. Accordingly, we remand for the entry of separate convictions for one count of felony fourth-degree assault constituting domestic violence and one count of first-degree assault, and for resentencing, and we otherwise affirm.

I. BACKGROUND

"We describe defendant's criminal conduct to provide context to the facts significant to the issues on appeal; we relate the facts in the light most favorable to the state." State v. Provancha , 293 Or. App. 169, 171, 428 P.3d 916 (2018). In 2013, defendant was convicted of fourth-degree assault constituting domestic violence for assaulting his wife-the victim in this case. After defendant was convicted and placed on probation for that crime, defendant and the victim lived apart and had virtually no contact with each other. In March of 2015, defendant became aware that the victim "would not be taking him back into her life, and that she had begun speaking to another man that she was interested in." After learning that the victim was seeing someone else and that the victim was ending her relationship with defendant, he became "enraged and desperate." In the early morning hours of March 19, defendant drove to the victim's apartment and then laid in wait behind the victim's car with a three-foot-long machete. As defendant expected, the victim left her apartment to go to work at the same time that morning that she did every morning. In what the trial court described as a "sadistic" and "horrific" attack, defendant emerged from behind the car and repeatedly chopped the victims head, face, and arms with the machete. The first blow with the machete caused "a 6-8 inch diagonal cut * * * that spanned from [the victim's] upper right forehead, down between her eyes, over the bridge of her nose, and extending over her left cheekbone." In an attempt to defend herself, the victim raised her arms and hands to block the blows. Defendant then hacked the victim's arms and hands between four and seven times causing "her right arm to be partially severed from her body at the elbow," exposing the bones and tendons in her wrists and hands, and breaking her right arm in several places. The victim then fell to the ground face first and defendant imbedded the machete blade in the back of her head, causing "a three to four inch section of scalp [to be] pulled open and gaping ½ inch to an inch," fracturing her skull, and causing a "minor brain bleed." Defendant then violently shook the machete to dislodge it from the victim's head and left her semi-conscious lying in a pool of her own blood.

Defendant was subsequently arrested, and charged with one count of attempted murder (Count 1), four counts of first-degree assault (Counts 2, 3, 4, and 5), one count of felony fourth-degree assault constituting domestic violence because he had previously been convicted of assaulting the victim (Count 6), and one count of unlawful use of a weapon (Count 7). Defendant pleaded guilty to the crimes as charged.

At defendant's sentencing hearing, the parties disputed whether certain counts should merge and whether the trial court could impose defendant's sentences consecutively.

As relevant here, the trial court concluded that the guilt determinations on Counts 2, 3, 4, and 5, for first-degree assault, merged into a single conviction for first-degree assault on Count 2. The court further concluded that the guilt determination on Count 6, for felony fourth-degree assault, merged with the conviction on Count 2, for first-degree assault, because "the fact that [defendant] had been previously convicted of another [assault against the victim] is just a[n] enhancement factor to get it to a felony" and not an element of the crime of fourth-degree assault.

With respect to consecutive sentences, the court stated that, "based on the record in front of it," the court could not make the findings necessary to order defendant to serve the sentence for the first-degree assault conviction on Count 2 consecutive to the sentence on the attempted murder conviction on Count 1. The court reasoned that it could not impose consecutive sentences under ORS 137.123(5)(a) or (b) because "it was a continuous action," there was no indication that defendant had "a separate intent" to commit more than one criminal offense, and "if you're trying to kill somebody, you are obviously then also * * * causing them serious physical injury." The trial court then sentenced defendant to a total of 128 months' imprisonment.

II. ANALYSIS

A. Merger

We begin by addressing the state's merger argument. On appeal, the state argues that the "trial court erred by merging defendant's guilty plea to felony fourth-degree assault constituting domestic violence into defendant's first-degree assault conviction." Specifically, the state contends that the trial court erred when it concluded that all of the elements of felony fourth-degree assault under ORS 163.160(3) were subsumed into the elements of first-degree assault under ORS 163.185 because defendant's prior conviction was "just a[n] enhancement factor." The state asserts that defendant's prior conviction for assaulting the victim is an element of felony fourth-degree assault and, therefore, all of the elements of felony fourth-degree assault under ORS 163.160(3) are not subsumed into the elements of first-degree assault under ORS 163.185. Defendant responds that "the trial court did not err in merging the guilty verdict for fourth-degree assault with the guilty verdict for first-degree assault, because the factors that elevate fourth-degree assault to a felony are sentence enhancement facts, not elements of a separate crime."

We review a trial court's decision to merge guilt determinations for legal error. State v. Breshears , 281 Or. App. 552, 554, 383 P.3d 345 (2016). Merger is governed by ORS 161.067, which provides, in part:

"(1) 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."

A trial court will apply that statute and find separately punishable offenses if three conditions are met: "(1) the defendant engaged in acts that constituted the same conduct or criminal episode; (2) the defendant's acts violated two or more statutory provisions; and (3) each statutory provision requires proof of an element that the others do not." State v. White , 346 Or. 275, 279, 211 P.3d 248 (2009) (internal quotation marks omitted).

In this case, the parties agree that the first two conditions are met-viz. , that defendant's attack on the victim constituted a single criminal episode that violated two statutory provisions, ORS 163.185 and ORS 163.160(3). Hence, the only issue presented for purposes of merger is whether those two statutory provisions each require proof of an element that the other does not. To resolve that inquiry, "we examine only the statutory elements of each offense, not the underlying factual circumstances recited in the indictment." State v. Fujimoto , 266 Or. App. 353, 357, 338 P.3d 180 (2014). "If, however, a statute sets out alternative forms of a single crime, we look to the indictment to determine which form is charged, and we use the elements of the crime as charged in conducting the merger analysis." Breshears , 281 Or. App. at 555, 383 P.3d 345 (internal quotation marks and ellipsis omitted). "Further, once we rely on the indictment to determine which of the alternative forms of the crime are at issue, we disregard particular facts alleged in the indictment or proved at trial." State v. Alvarez , 240 Or. App. 167, 172, 246 P.3d 26 (2010), rev. den. , 350 Or. 408, 256 P.3d 121 (2011).

We therefore begin by examining the statutory provisions of ORS 163.160 to determine the elements of felony fourth-degree assault. The indictment charged defendant with felony fourth-degree assault under ORS 163.160(3)(b). ORS 163.160 provides, in part:

"(1) A person commits the crime of assault in the fourth degree if the person:
"(a) Intentionally, knowingly or recklessly causes physical injury to another[.]
"* * * * *
"(2) Assault in the fourth degree is a Class A misdemeanor.
"(3) Notwithstanding subsection (2) of this section, assault in the fourth degree under subsection (1)(a) * * * of this section is a Class C felony if the person commits the crime of assault in the fourth degree and:
"(a) The assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or victim;
"(b) The person has been previously convicted of violating this section, * * * and the victim in the previous conviction is the same person who is the victim of the current crime;
"(c) The person has at least three previous convictions for violating this section * * *; or
"(d) The person commits the assault knowing that the victim is pregnant."

As we explain below, for purposes of our merger analysis, the relevant elements of felony fourth-degree assault under ORS 163.160(3)(b) are: (1) knowingly; (2) causes physical injury to another; and (3) defendant having been previously convicted of assaulting the victim.

As noted, the state and defendant dispute whether defendant's previous conviction for assaulting the victim is an element of the crime of felony fourth-degree assault, or a sentence-enhancement factor that does not function as an element for purposes of our merger analysis. See State v. Baker , 265 Or. App. 500, 503-05, 336 P.3d 547 (2014) (subcategory factors that elevate the charged offense on the crime-seriousness scale for purposes of the felony sentencing guidelines at sentencing "do not function as elements for purposes of the merger analysis"); State v. Nunes , 295 Or. App. 91, 102-05, 433 P.3d 374 (2018) (concluding that the defendant's prior conviction and sentence was not an element of the crime of unlawful use of a firearm under ORS 166.220 and ORS 161.610(2), because "the fact of defendant's prior conviction and sentence under ORS 161.610 -which was required to elevate the mandatory-minimum sentence imposed under ORS 161.610(4) -pertain[ed] only to defendant's sentence").

Defendant relies on our opinion in State v. Yong , 206 Or. App. 522, 138 P.3d 37, rev. den. , 342 Or. 117, 149 P.3d 139 (2006), to support his argument that "the legislature intended the facts elevating fourth-degree assault to a felony to be sentence enhancement facts, not elements of a new crime." Defendant's reliance on Yong is misplaced. As explained below, in Yong , we concluded that the various forms of felony fourth-degree assault under ORS 163.160(3) do not constitute separate statutory provisions for purposes of merger. Id . at 546, 138 P.3d 37. We did not address the question at issue in this appeal: whether the various forms of felony fourth-degree assault under ORS 163.160(3) constitute alternative ways of proving the element of aggravation and, as such, are elements of that crime. See State v. Barrett , 331 Or. 27, 32, 10 P.3d 901 (2000) ("First, a defendant must violate two or more statutory provisions; only then does the court consider whether each statutory provision requires proof of an element that the others do not.").

In Yong , the trial court entered two convictions for felony fourth-degree assault based on two different paragraphs of ORS 163.160(3) ; the first conviction was based on the defendant's previous conviction for assaulting the same victim, and the second conviction was based on the defendant "committ[ing] the assault in the immediate presence of the victim's child, who witnessed the assault." Id . at 543, 138 P.3d 37. The defendant argued that the guilty verdicts for violating two paragraphs of ORS 163.160(3) should have merged into a single conviction because "he did not violate separate statutory provisions." Id . In analyzing that issue, we relied on the Supreme Court's decision in Barrett . In Barrett , the court held that the various aggravating circumstances set out as subsections of the aggravated murder statute, ORS 163.095, do not constitute separate statutory provisions that are punishable as separate crimes because "the use of a single section" indicated that "the legislature intended to define a single crime," and "[t]he aggravating factors constitute no more than different theories under which murder becomes subject to the enhanced penalties for aggravated murder." 331 Or. at 35-36, 10 P.3d 901. After noting that "the structure of the subsection defining when fourth-degree assault may be aggravated to a felony is similar to the structure[ ] of the statute[ ] at issue in Barrett ," we concluded that "the text and context of the fourth-degree assault statute indicate that the legislature did not intend to create additional crimes but, instead, intended to more severely punish the same conduct, if committed in a domestic situation, by making it a felony" and, thus, the defendant's conduct did not violate two or more statutory provisions. Yong , 206 Or. App. at 546, 138 P.3d 37. Because Yong addressed only whether the different theories of felony fourth-degree assault under ORS 163.160(3) constitute separate statutory provisions, Yong does not control the outcome of this case, which requires us to determine whether the different theories of felony fourth-degree assault under ORS 163.160(3) constitute an element of that crime.

We turn to whether the enumerated circumstances that elevate fourth-degree assault to a felony under ORS 163.160(3) constitute alternative ways of proving the element of aggravation and, as such, are elements of that crime. As we observed in Yong , "the structure of the subsection defining when fourth-degree assault may be aggravated to a felony is similar to the structure[ ] of" ORS 163.095, which defines aggravated murder. Id. In Barrett , the court observed that ORS 163.095"defines aggravated murder as murder 'committed under, or accompanied by, any ' of various aggravating circumstances." 331 Or. at 35, 10 P.3d 901 (emphasis in original). Like the structure of the aggravated murder statute that defines "different theories under which murder becomes subject to the enhanced penalties for aggravated murder," Barrett , 331 Or. at 36, 10 P.3d 901, fourth-degree assault under ORS 163.160"may be aggravated to a Class C felony 'if the person commits the crime of assault in the fourth degree and' one of the listed circumstances exists." Yong , 206 Or. App. at 546, 138 P.3d 37 (quoting ORS 163.160(3) ). And, although the aggravated murder statute uses the word "any" before enumerating the circumstances under which that crime is committed, "the use of the term 'and' in conjunction with 'or' in the felony fourth-degree assault subsection accomplishes the same purpose." Id . The text of ORS 163.160(3) (felony fourth-degree assault), like the text of ORS 163.095 (aggravated murder), demonstrates that any or all of the enumerated circumstances serve to prove the element of aggravation which subjects the defendant to enhanced penalties for felony fourth-degree assault. Thus, ordinarily, fourth-degree assault is a misdemeanor, but if the state pleads and proves the element of aggravation, then the assault constitutes the distinct criminal offense of felony fourth-degree assault, a Class C felony. See State v. Crider , 291 Or. App. 23, 31, 418 P.3d 18 (2018) (the legislature's decision to classify one offense as a misdemeanor and another as a felony in the same statutory subsection indicates that the latter is "of greater concern" and, thus, a "distinct criminal offense[ ]").

Additionally, in other contexts, we have consistently analyzed the element of aggravation under ORS 163.160(3) as an element of the crime of felony fourth-degree assault. For example, in State v. Reynolds , 183 Or. App. 245, 247, 51 P.3d 684, rev. den. , 335 Or. 90, 58 P.3d 821 (2002), the state appealed "a pretrial order allowing a demurrer to an indictment that charged defendant with felony assault in the fourth degree." The defendant had argued below that the indictment was subject to demurrer under ORS 132.540(2) because the defendant's previous conviction for "assaulting the victim [was] not a 'material element' of the crime" of felony fourth-degree assault. Id . at 247-48, 51 P.3d 684. "The trial court concluded that defendant was correct in asserting that the existence of a prior conviction is not a material element of [felony fourth-degree assault] and dismissed the indictments." Id . at 249, 51 P.3d 684. On appeal, we agreed with the state "that the allegations concerning defendant's prior conviction [were] a material element" of felony fourth-degree assault and rejected the defendant's argument that his previous conviction for assaulting the victim was merely a sentence-enhancement factor. Id . at 247-49, 51 P.3d 684. We concluded that the crimes of felony fourth-degree assault and fourth-degree assault are separate offenses because felony fourth-degree assault requires proof of an additional "material element" that "the state must prove to establish the crime charged," viz ., "that a defendant previously has been convicted of assaulting the same victim." Id . at 249-51, 51 P.3d 684 (emphasis in original). We further concluded that the prior conviction was a "material element" and not merely a sentence-enhancement factor because the indictment would no longer allege the crime of felony fourth-degree assault if that allegation were struck from the indictment. Id . at 250-52, 51 P.3d 684.

Furthermore, in the context of a defendant stipulating to a prior conviction for felony fourth-degree assault, we have analyzed the prior conviction as an element of the crime of felony fourth-degree assault. See State v. Hambrick , 189 Or. App. 310, 312-13, 75 P.3d 462 (2003) (trial court erred in compelling the state to accept the defendant's stipulation to a prior conviction for assaulting the victim, "taking the prior conviction element from the jury," and precluding "the state from introducing evidence to prove that element" of felony fourth-degree assault); State v. Garrett , 187 Or. App. 201, 203-06, 66 P.3d 554 (2003) (where the state did not agree to the defendant stipulating to his prior conviction for assaulting the victim, the trial court did not abuse its discretion in admitting evidence of the defendant's prior conviction because the "defendant's prior conviction was an element of" felony fourth-degree assault and "evidence of the prior conviction was essential in order to prove the crime charged").

Finally, in the context of motions for judgment of acquittal, we have recognized that the crimes of felony fourth-degree assault and fourth-degree assault are separate offenses because felony fourth-degree assault requires the state to prove the additional element of aggravation beyond a reasonable doubt. See State v. Cox , 212 Or. App. 637, 641-43, 159 P.3d 352 (2007) (reversing conviction for felony fourth-degree assault and remanding for entry of a judgment of conviction for misdemeanor fourth-degree assault because the state failed to prove "the 'committed in the immediate presence [of the child]' element"); State v. Bivins , 191 Or. App. 460, 463-71, 83 P.3d 379 (2004) (examining the elements of felony fourth-degree assault, reversing conviction for felony fourth-degree assault, and remanding for entry of a judgment of conviction for misdemeanor fourth-degree assault because the state failed to prove "the element that enhanced the assault to a felony").

Thus, for purposes of merger, we conclude that fourth-degree assault and felony fourth-degree assault are distinct criminal offenses and the enumerated circumstances that elevate fourth-degree assault to a felony under ORS 163.160(3) constitute alternative ways of proving the element of aggravation. Accordingly, in this case, the elements of felony fourth-degree assault are: (1) knowingly; (2) causes physical injury to another; and (3) defendant having been previously convicted of assaulting the victim.

Having determined the elements of felony fourth-degree assault, we now turn to the elements of first-degree assault. The indictment charged defendant for first-degree assault under ORS 163.185(1)(a). Under ORS 163.185 (1)(a), a person commits the crime of first-degree assault if the person "[i]ntentionally causes serious physical injury to another by means of a deadly or dangerous weapon." Thus, for purposes of our merger analysis, the relevant elements of first-degree assault are: (1) intentionally; (2) causes serious physical injury to another; and (3) by means of a dangerous weapon.

With respect to the third question under ORS 161.067(1), whether each statutory provision requires proof of an element that the other does not, we first note that "to act intentionally presupposes acting knowingly, and to inflict serious physical injury presupposes physical injury." State v. O'Hara , 152 Or. App. 765, 768, 955 P.2d 313, rev. den. , 327 Or. 305, 966 P.2d 219 (1998) (emphasis omitted). Thus, in this case, the first two elements of felony fourth-degree assault are subsumed within the first two elements of first-degree assault. However, felony fourth-degree assault also required the jury to find that defendant had been previously convicted of assaulting the victim, an element not necessary to prove the crime of first-degree assault, and first-degree assault required the jury to find that defendant used a dangerous weapon, an element not necessary to prove the crime of felony fourth-degree assault. Thus, each statutory provision requires proof of an element that the other does not.

By elevating fourth-degree assault to a felony, ORS 163.160(3) expresses a legislative policy choice to punish more severely those people who repeatedly assault the same victim. In assaulting the victim in this case, defendant used a dangerous weapon and he chose to assault a victim whom he had previously assaulted. Defendant argues, in effect, that this judgment of conviction should not reflect that the victim was his wife or that she had been previously assaulted by defendant. We disagree; under these circumstances a single conviction for first-degree assault does not accurately reflect the nature and extent of defendant's conduct. See State v. Crotsley , 308 Or. 272, 279-80, 779 P.2d 600 (1989) (because first-degree rape and sodomy require a finding of forcible compulsion, and third-degree rape and sodomy require a finding that the victim was under 16 years of age, the first and third-degree convictions do not merge and defendant's criminal record should reflect that "[h]e forced his victim to engage in sex against her will, and he chose a victim to whom the legislature had accorded additional protection because of her age"). Accordingly, the trial court erred by merging the guilt determination on felony fourth-degree assault constituting domestic violence into defendant's first-degree assault conviction.

B. Consecutive Sentencing

We turn to the state's second assignment of error. The state argues that the trial court "erred by concluding that it was precluded from imposing the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction." Defendant responds that "[t]he trial court did not err in imposing concurrent sentences for defendant's attempted murder conviction and his first-degree assault conviction."

ORS 137.123(5) provides:

"The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim * * * than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

The trial court concluded that the attack was a "continuous action" and that it "cannot make the findings based on the record in front of it in regards to doing any consecutive sentencing" under ORS 137.123(5)(a) or (b). Specifically, the trial court found:

"I don't think there was a separate intent. * * * I have no facts in front of me to suggest that his entire intent wasn't to just cause her physical injury. * * * I mean, * * * serious physical injury includes murder[.]
"* * * * *
"The definition of serious physical injury includes killing somebody.
"* * * * *
"So, therefore, if you're trying to kill somebody, you are obviously then also * * * causing them serious physical injury with a weapon. That's why to me there's not a distinction between the two in which the court feels confident the court can make the findings necessary to do * * * consecutive sentences."

Additionally, the trial court stated that, in case it erred with respect to its authority to impose consecutive sentences, it wanted to make it "clear [to] * * * the Court of Appeals" that it was "trying to max out whatever time is available to it because of the horrific nature of these particular * * * crimes." We understand the court to have ruled that it was precluded, as a matter of law, from imposing consecutive sentences for defendant's attempted murder conviction and his first-degree assault conviction because the state failed to adduce sufficient evidence for the court to make the predicate factual findings under ORS 137.123(5).

Accordingly, we consider whether a consecutive sentence would have been authorized under ORS 137.123 (5)(a) or (b). See State v. Traylor , 267 Or. App. 613, 615-16, 341 P.3d 156 (2014) ("We review a trial court's decision to impose consecutive sentences for errors of law[.]"). Our analysis is guided by our recent decisions in Provancha , 293 Or. App. 169, 428 P.3d 916, and State v. Edwards , 286 Or. App. 99, 399 P.3d 463, rev. den. , 362 Or. 175, 406 P.3d 609 (2017), which resolved the issue of the proper interpretation and application of ORS 137.123(5)(a) and (b) that the state raises in this appeal. 1. ORS 137.123(5)(a)

Under ORS 137.123(5)(a), "the question is whether there is any evidence in the record to support a finding that defendant's commission of first-degree assault was 'not merely' 'incidental' to his commission of attempted * * * murder, but, instead, demonstrated a separate and distinct intent to commit the lesser offense." Edwards , 286 Or. App. at 103, 399 P.3d 463. When a defendant "engages in multiple criminal acts during a single uninterrupted course of conduct[,] * * * 'conduct that is temporally or qualitatively distinct from the act constituting the more serious offense * * * may support an inference that the commission of one offense was not merely incidental to the other.' " Provancha , 293 Or. App. at 174, 428 P.3d 916 (quoting Edwards , 286 Or. App. at 103, 399 P.3d 463 (emphasis in Provancha ) ). "[W]hen a defendant acts with the intent to kill but instead causes the victim serious physical injury," a "court can impose consecutive sentences for assault and attempted murder * * * only if there is some evidence that the defendant had a separate intent to inflict only serious physical injury" because "the intent to cause serious physical injury is subsumed by the intent to kill the victim." Id . at 174-75, 428 P.3d 916 (internal quotation marks omitted). "Thus, unless the record contains discrete facts supporting an inference that a defendant acted with a willingness to commit multiple offenses, imposition of consecutive sentences is not authorized by ORS 137.123(5)(a)." Edwards , 286 Or. App. at 104, 399 P.3d 463 (internal quotation marks omitted).

Nothing in the record of this case supports an inference that defendant's commission of first-degree assault was "not merely * * * incidental" to his commission of attempted murder. ORS 137.123(5)(a). The record is silent as to the lapse of time in between the repeated blows with the machete, and the state failed to adduce any evidence that defendant struck any one blow with an intention different from the intention with which he struck any other blow. In other words, nothing suggests that defendant struck any one blow intending only to injure the victim. The state's argument that defendant had not only an intent to kill but also a separate intent to inflict serious physical injury "because defendant * * * struck the victim not only on her head but on different places on her body" is speculative at best. There is no evidence that, when the victim attempted to defend herself, the multiple blows to the victim's arms and hands-which caused her right arm to be partially severed from her body at the elbow, exposed the bones and tendons in her wrists and hands, and broke her right arm in several places-were struck in any qualitatively different way than the blows to the victims face and head. See Provancha , 293 Or. App. at 171-75, 428 P.3d 916 (where the defendant struck the victim in the head with a bat multiple times and again in the arm when she blocked the bat, deeming "speculative" the state's suggestion that the "defendant struck any blow with an intention different from the intention with which he struck any other blow"); Edwards , 286 Or. App. at 105-06, 399 P.3d 463 (deeming "speculative" the state's suggestion "that defendant attempted to kill the [victim] with the first shot but * * * missed and then * * * fired again with the goal of merely injuring him"). Accordingly, the trial court did not err in declining to impose the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction under ORS 137.123(5)(a).

2. ORS 137.123(5)(b)

Under ORS 137.123(5)(b), "[t]o determine whether an offense 'caused or created a risk of causing greater or qualitatively different loss, injury or harm' than another offense under the statute," we apply the following analysis:

"[A] court must (1) determine which offense is the offense for which a consecutive sentence is contemplated; (2) compare the harms-real or potential-that arose from that offense with those that arose from the offense to which it will be sentenced consecutively; (3) determine whether the offense for which a consecutive sentence is contemplated caused or risked causing any harm that the other did not; and, if so, (4) determine whether the harm that is unique to that offense is greater than or qualitatively different from the harms caused or threatened by the other."

State v. Rettmann , 218 Or. App. 179, 185-86, 178 P.3d 333 (2008) (quoting ORS 137.123(5)(b) (footnote omitted) ). Potential harms include only "harms that were risked, though not realized, by the conduct that actually occurred," and do not include "theoretical harms that an offense-as defined by statute but not actually committed-could have caused." Id . at 185 n. 2, 178 P.3d 333 ; see also Provancha , 293 Or. App. at 175-76, 428 P.3d 916 (adhering to that aspect of Rettmann ); Edwards , 286 Or. App. at 107-08, 399 P.3d 463 (rejecting the state's contrary interpretation of ORS 137.123(5)(b) ).

Our application of that principle in Provancha and Edwards is instructive. In Provancha , the defendant struck the victim in the head multiple times with a baseball bat. 293 Or. App. at 171, 428 P.3d 916. The defendant was convicted of attempted murder and second-degree assault constituting domestic violence. Id . We concluded that consecutive sentences were not justified under ORS 137.123(5)(b) because the "assault-a blow with a baseball bat-caused the real harm of physical injury and risked the potential harm of death" and "the attempted murder offense * * * caused the harm of physical injury and risked the harm of death." Id . at 176, 428 P.3d 916. Hence, the "defendant's conduct, which constituted multiple offenses, caused or risked the same harms to the victim." Id . Similarly, in Edwards , the defendant shot at an officer twice; the first shot missed, but the second shot hit the officer in the leg, causing the officer to lose a substantial amount of blood. 286 Or. App. at 100-01, 399 P.3d 463. The officer survived and the defendant pleaded guilty to attempted aggravated murder with a firearm and first-degree assault with a firearm. Id . at 101, 399 P.3d 463. We concluded that consecutive sentences were not justified under ORS 137.123(5)(b) because the "defendant's conduct underlying both offenses caused or risked precisely the same harms to [the officer]: death and physical injury." Id . at 109, 399 P.3d 463.

For similar reasons, the record in this case does not support a consecutive sentence under ORS 137.123 (5)(b). The trial court contemplated a consecutive sentence for first-degree assault. The assault with the machete caused the "real" harm of serious physical injury and risked the potential harm of death. Rettmann , 218 Or. App. at 185, 178 P.3d 333. For purposes of this legal analysis, we disagree with the state that there is a distinction between the harms caused and risked by the blows to the victims face and head, and the harms caused and risked by the blows to the victim's arms and hands. As described above, the blows to the victim's face and head fractured the victim's skull, caused a "minor brain bleed," opened "a 6-8 inch diagonal cut * * * that spanned from [the victim's] upper right forehead, down between her eyes, over the bridge of her nose, and extending over her left cheekbone," and caused "a three to four inch section of scalp [to be] pulled open and gaping ½ inch to an inch." Those are serious physical injuries that risked the potential harm of death. Likewise, the blows to the victim's arms and hands that partially severed her right arm at the elbow, exposed the bones and tendons in her wrists and hands, and broke her right arm in several places, are serious physical injuries that risked the potential harm of death. The attempted murder offense, which encompassed all of defendant's assaultive conduct, caused the "real" harm of serious physical injury and risked the harm of death. Rettmann , 218 Or. App. at 185, 178 P.3d 333. Thus, defendant's conduct, which constituted multiple offenses, caused or risked the same harms to the victim. Furthermore, as discussed above, the record does not suggest that defendant struck any one blow with an intention to cause a qualitatively different harm. Accordingly, the record does not support a determination that defendant's assault offense caused or risked a "greater or qualitatively different loss, injury or harm to the victim" than that caused or risked by the attempted murder offense. ORS 137.123 (5)(b). Therefore, the trial court did not err in declining to impose the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction under ORS 137.123(5)(b).

III. CONCLUSION

In sum, the trial court erred when it merged the guilt determination on felony fourth-degree assault constituting domestic violence into defendant's first-degree assault conviction. The trial court did not err when it declined to impose the sentence for defendant's first-degree assault conviction consecutive to the sentence for defendant's attempted murder conviction.

Remanded for the entry of separate convictions for one count of felony fourth-degree assault constituting domestic violence and one count of first-degree assault, and for resentencing; otherwise affirmed.

      As discussed in more detail below, the "court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds" that there "was an indication of defendant's willingness to commit more than one criminal offense" or that "[t]he criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim." ORS 137.123(5).

      In discussing former ORS 161.062(1) (1985), repealed by Or. Laws 1999, ch. 136, § 1, "the nearly identical precursor to ORS 161.067(1)," State v. Parkins , 346 Or. 333, 348, 211 P.3d 262 (2009), the Supreme Court stated that the legislature
      "clearly intended that criminal records accurately reflect all crimes actually committed and that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person's conduct."
      State v. Crotsley , 308 Or. 272, 276-77, 779 P.2d 600 (1989) ; see also State v. Yong , 206 Or. App. 522, 544 n. 4, 138 P.3d 37, rev. den. , 342 Or. 117, 149 P.3d 139 (2006) (noting that former ORS 161.062(1) and ORS 161.067(1) are "phrased identically, thus expressing the same legislative intent").

      Count 6 of the indictment alleged, in part: "The defendant, on or about March 19, 2015, * * * did unlawfully and knowingly cause physical injury to [the victim], defendant having previously been convicted of assaulting the above named victim." ORS 163.160 has been amended since defendant committed his crime; however, because those amendments do not affect our analysis, we refer to the current version of the statute. See Or. Laws 2015, ch. 639, § 2; Or. Laws 2017, ch. 337, § 1.

      ORS 163.095 provides, in part, that, "[a]s used in ORS 163.105 and this section, 'aggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances[.]" ORS 163.095 then lists various aggravating circumstances set out as subsections "under which murder becomes subject to the enhanced penalties for aggravated murder." Barrett , 331 Or. at 36, 10 P.3d 901.

      ORS 132.540(2) (2001) provided that "[t]he indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject the defendant to enhanced penalties, except where the conviction constitutes a material element of the crime charged."ORS 132.540 was amended in 2009. Or. Laws 2009, ch. 180, § 1. ORS 132.540(3) now provides that "[t]he indictment must allege that the defendant has previously been convicted of an offense when the previous conviction constitutes a material element of the charged offense."

      Count 2 of the indictment alleged, in part: "The defendant * * * did unlawfully and intentionally cause serious physical injury to [the victim] by means of a machete, a dangerous weapon, * * * by chopping her face."

      The indictment charged defendant with felony fourth-degree assault "constituting domestic violence" pursuant to ORS 132.586 because defendant knowingly caused physical injury to his spouse. See ORS 135.230(3) (defining domestic violence). Under ORS 132.586(2), "[w]hen a crime involves domestic violence, the accusatory instrument may plead, and the prosecution may prove at trial, domestic violence as an element of the crime." We express no opinion on whether the element of "constituting domestic violence" would also preclude merger in this case.

      The state also contends that "[t]he trial court erroneously concluded that it was precluded from reviewing the record and making factual findings." We disagree; the trial court expressly relied on the state's sentencing memorandum and reviewed "the record in front of it" to make its decision. The only additional evidence offered by the state that the court decided would not be helpful to its analysis were photographs of the victim's injuries. Given the graphic detail of the attack and the victim's injuries set forth in the written record as described above, we agree with the trial court that the photographs would be of little value in determining whether defendant had a separate intent to inflict only serious physical injury. The state never raised an argument that the trial court was required to admit that evidence or make factual findings, or that the court had merely stated legal conclusions. Thus, the error alleged here is unpreserved. See State v. Bucholz , 317 Or. 309, 320-21, 855 P.2d 1100 (1993) (where consecutive sentences were being imposed and "no objection to lack of findings or request for findings was entered," the error was not preserved and would not be considered on appeal). In fact, the only time the trial court expressly refused to make factual findings was in the context of imposing a consecutive sentence for defendant's unlawful use of a weapon, because defendant pleaded guilty to that count as arising out of a separate act and transaction. That was not error. See State v. Gordian , 209 Or. App. 600, 601, 149 P.3d 190 (2006) (when a defendant pleads guilty to crimes that occurred during separate criminal episodes, under ORS 137.123(2), "a court is not required to make findings to support imposition of consecutive sentences [because] the crimes did not 'arise from the same continuous and uninterrupted course of conduct' ").

      As noted, the trial court merged the guilt determinations on Counts 2, 3, 4, and 5, for first-degree assault, into a single conviction for first-degree assault on Count 2. We consider all of the assaultive conduct charged in those counts because, when multiple guilt determinations for the same crime merge into a single conviction, the scope of the conviction includes all of the underlying conduct. See Barrett , 331 Or. at 36-37, 10 P.3d 901 (remanding "to enter one judgment of conviction reflecting the defendant's guilt on the charge of aggravated murder, which judgment separately would enumerate each of the existing aggravating factors" because the "defendant's record should depict the full extent of his involvement in the criminal conduct that led to the victim's death"); Yong , 206 Or. App. at 547, 138 P.3d 37 (remanding with instructions to enter a single judgment of conviction for fourth-degree assault reflecting that the defendant previously had assaulted the victim and that the defendant committed the assault in the immediate presence of the victim's child).
      Accordingly, we consider all of the blows with the machete to the victim's face (Count 2), head (Count 5), arms, and hands (Counts 3 and 4) in our analysis under ORS 137.123(5).

      Because the indictment alleges only that defendant attempted to kill the victim on the date of the attack, and does not rely on any specific conduct to form a basis for that allegation, we presume that the attempted murder charge encompasses all of defendant's assaultive conduct. On this record, the state's suggestion to the contrary is mere speculation.


source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    In the MATTER OF J. S. W., a Youth.
    State of Oregon, Respondent, v. J. S. W., Appellant.
    A160455
    Court of Appeals of Oregon.
    Submitted December 11, 2017. December 12, 2018
    Christa Obold Eshleman filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Youth appeals a judgment and order of the juvenile court denying his motion to set aside a 1995 juvenile delinquency adjudication for conduct that, if committed by an adult, would constitute sexual abuse in the first degree, ORS 163.427, and sodomy in the second degree, ORS 163.395. Youth argued in his motion that the adjudication was invalid because he had not knowingly or voluntarily waived his right to counsel or entered a valid plea due to the juvenile court's alleged failure to inform him of a potential statutory defense and a collateral consequence-mandatory sex-offender registration-of his plea. The court denied youth's motion, determining that youth had failed to meet his burden of proving by a preponderance of the evidence that the adjudication should be set aside. On appeal, youth reiterates the arguments that he made to the juvenile court, namely that his "federal constitutional rights were violated by lack of counsel in the underlying proceeding, which led to a plea that was not voluntary, knowing, and intelligent." For the reasons explained below, we affirm the court's denial of youth's motion.

The juvenile court has the authority to "set aside any order made by it," ORS 419C.610(1), for reasons including a "substantial denial in the proceedings resulting in the person's adjudication * * * of the person's rights under the United States Constitution or the Oregon Constitution, or both," if "the denial rendered the adjudication void," ORS 419C.615(1)(a). A youth who files a motion to set aside a juvenile adjudication that the youth argues resulted from an invalid, uncounseled plea has the burden to prove by a preponderance of the evidence that the plea was invalid. See ORS 419C.615(2)(b) (providing that the "petitioner has the burden of proving by a preponderance of the evidence the facts alleged in the petition").

We review the juvenile court's construction of a constitutional provision for legal error. State v. Rangel , 328 Or. 294, 298, 977 P.2d 379 (1999). We are bound by the court's factual findings that are supported by evidence in the record, including a finding that a party's evidence is not "sufficiently persuasive." State v. Johnson , 335 Or. 511, 523, 73 P.3d 282 (2003).

We provide the following facts as context for the juvenile court's denial of youth's motion. Youth was 14 at the time of the charged incident and 16 at the time of the 1995 juvenile adjudication. The victim was 12 years old at the time of the charged incident. Before trial in Yamhill County Circuit Court, youth waived his right to counsel and subsequently admitted to the charges that brought him within the jurisdiction of the juvenile court. Youth signed a document captioned "Petition Admitting Allegations That Child is Within the Jurisdiction of the Court. Waiver of Right to an Attorney." Paragraph 3 of the petition provided that youth had the "right to have an attorney." Paragraph 4 provided that youth was "entitled to an attorney at all times either in Court or when questioned about this matter" and that youth "may hire an attorney" or have one appointed by the court if youth was "without sufficient funds." Following paragraphs 3 and 4, the petition presented youth with a check-the-box option to "proceed without an attorney representing me at this time" or to be "represented by an attorney," and he checked the box next to "proceed without an attorney representing me at this time."

Paragraph 6 of the petition claimed that the "maximum penalty" that youth could face by admitting to the charges was up to 20 years of confinement and a fine of up to $400,000. Paragraph 12 provided that youth offered his admission "freely and voluntarily and of my own accord and with full understanding of these matters." Significant to this appeal, the plea petition did not contain a notice that youth would have to register as a sex offender if he admitted to the charges against him and did not notify youth of any possible defenses that he could raise instead of admitting to the charges against him. The record does not contain any other evidence of whether the juvenile court, in a colloquy with youth or through other means, informed youth of the collateral consequences of his plea, including mandatory sex-offender registration, or advised youth of the specific risks of entering a plea without first consulting with an attorney.

Youth's plea in 1995 admitting to the allegations contained in the sodomy and sexual abuse charges resulted in a mandatory lifetime obligation to register as a sex offender. ORS 181.594 - 181.596. In 2014, youth was charged with failure to report as a sex offender in Multnomah County. See ORS 163A.040. In response, youth filed a motion in that court to set aside his 1995 juvenile adjudication. He submitted an affidavit in support of his motion in which he averred that, during the 1995 proceedings, he "was not informed" that he had an age-based defense under ORS 163.345 or that he "would be subject to lifetime sex offender registration" as a result of his plea. Although the basis for its decision is absent from the record, the Multnomah County court entered a one-line order that "granted" defendant's "pre-trial motion re. challenge to prior conviction." The court subsequently entered a judgment dismissing the failure-to-register charge against youth. The judgment provides that "all counts are dismissed on motion of the state as it is unable to proceed." The basis for the state's motion to dismiss and the court's decision to grant it is not apparent from the record, which does not contain any transcripts or other documents from the Multnomah County proceeding apart from the aforementioned affidavit, order, and judgment.

Following the dismissal of the criminal charge in Multnomah County, youth filed a motion in Yamhill County juvenile court to set aside his 1995 adjudication. Youth argued that his waiver of counsel was invalid and his plea was not voluntary because the juvenile court in 1995 had not warned him that, by pleading and admitting to the allegations against him, he was waiving a potentially viable defense and that he would be required to register as a sex offender. As to the latter contention, youth's principal argument was that his case is analogous to Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which the United States Supreme Court determined that criminal defendants have a constitutional right to be informed whether deportation is a possible consequence of a guilty plea.

At the hearing on the motion, the juvenile court first noted that the record from 1995 was sparse-consisting of only "two pieces of paper," including the plea agreement in which youth waived his right to an attorney and admitted to the charges against him-and contained no audio recording, transcript, or other evidence of the court's interactions with youth prior to youth entering his plea. The court went on to reject youth's argument that Padilla required the juvenile court to warn him of the mandatory sex-offender registration requirement before accepting his uncounseled plea, explaining that "the obligation that may have been present that required [youth] to register was not the type of event that would require a dialogue to accept his admission." Ultimately, the court determined at the hearing that "the record is adequate to say that [youth] was advised of the right to counsel and made a knowing waiver of that right when he entered his admissions." The court subsequently entered an order denying youth's motion because "youth has not met his burden to prove by a preponderance of the evidence that his juvenile adjudication should be set aside."

Before turning to our review of the juvenile court's denial of youth's motion, we provide a brief summary of the legal parameters of the constitutional right to an attorney when a youth enters a plea in a juvenile proceeding. A youth has a right to counsel in a juvenile proceeding as a matter of fundamental fairness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In re Gault , 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In an adult criminal prosecution, the defendant has a right to counsel under the Sixth Amendment to the United States Constitution. Of course, a juvenile proceeding is not a criminal prosecution. See State ex rel. Juv. Dept. v. Reynolds , 317 Or. 560, 575, 857 P.2d 842 (1993) (holding that a juvenile proceeding is not a criminal prosecution under Article I, section 11, of the Oregon Constitution ). However, some protections provided to criminal defendants under the United States Constitution may also extend to youths in juvenile proceedings. Id. at 574, 857 P.2d 842. And, as noted, the United States Supreme Court has held that youths have a right to counsel under the Due Process Clause. In re Gault , 387 U.S. at 41, 87 S.Ct. 1428.

As with other constitutional rights, a youth may also waive the right to counsel if the youth has made an "intentional relinquishment or abandonment of a fully known right." Id. at 42, 87 S.Ct. 1428 ; cf. Iowa v. Tovar , 541 U.S. 77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (holding, in the context of a criminal case, that an adult defendant may waive the right to counsel under the Sixth Amendment if the waiver is "knowing, voluntary, and intelligent"). That is, a youth must intentionally relinquish or abandon a fully known right.

When a criminal defendant enters an uncounseled plea, "[t]he constitutional requirement [under the Sixth Amendment] is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar , 541 U.S. at 81, 124 S.Ct. 1379. The court need not "advise the defendant that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked," nor must the court "admonish the defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty." Id. (internal citations omitted).

On appeal, youth first reiterates his argument that his waiver of counsel was invalid, and his subsequent plea involuntary, because he was not informed of a potential defense that he could have raised at trial. Youth cites ORS 163.345(1), which provides, in relevant part, that, in a prosecution for sexual abuse in the first degree or sodomy in the second degree in which "the victim's lack of consent was due solely to incapacity to consent by reason of being less than a specific age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense." At the time of the conduct on which his adjudication was based, youth was 14 and the victim was 12-a difference of less than three years. On that basis, youth argues that he had a potential defense of which he was unaware when he admitted to the charges against him. Youth argues that the juvenile court's failure to inform him of that potential defense means that he did not "substantially appreciate the risks of self-representation" before he admitted to the charges pleaded against him.

We reject youth's argument because, even assuming that the same standards that would apply to permit a criminal defendant to waive his right to counsel and plead guilty under the Sixth Amendment apply to youth in this juvenile proceeding, the juvenile court was not required to inform youth of potential statutory defenses to obtain a valid waiver of counsel and voluntary plea. Here, the plea agreement that youth signed informed youth of the precise charges against him, his right to an attorney (including the right to have an attorney provided to him if he could not afford one), and the maximum possible punishment that he faced by admitting to the charges. Cf. Tovar , 541 U.S. at 81, 124 S.Ct. 1379 (describing those requirements). As noted above, youth, who bears the burden of proof in this collateral attack on the adjudication resulting from his plea, did not provide a transcript of any colloquy between the court and youth that may shed further light on the circumstances preceding youth's written waiver or the depth of his understanding of either the charges against him or the terms of the written waiver. Regardless, even under the Sixth Amendment, a court would not be obligated to "advise [youth] that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked" before it could accept youth's plea. Id. ; see also Wayne R. LaFave, 3 Criminal Procedure § 11.3(b) (4th ed. 2016) (explaining that "judicial advice as to defenses and mitigating circumstances" is not a prerequisite to a valid uncounseled guilty plea). Accordingly, the juvenile court did not err by denying youth's motion to set aside the 1995 adjudication despite youth's averment that he had not been informed of a possible statutory defense to the charges against him.

Youth next argues that the juvenile court's failure to inform him that he would be required to register as a sex offender rendered his waiver of counsel and subsequent plea invalid. Mandatory registration as a sex offender is a "collateral consequence" of a conviction for various sexual crimes in Oregon. Rodriguez-Moreno v. State of Oregon , 208 Or. App. 659, 664, 145 P.3d 256 (2006), rev. den. , 343 Or. 159, 164 P.3d 1160 (2007). In Rodriguez-Moreno , we held that it was not inadequate or ineffective assistance of counsel under Article I, section 11, or under the Sixth Amendment for criminal counsel to fail to inform a client of the collateral consequence of mandatory sex-offender registration prior to a plea. Id. Registration is "not a form of increased punishment." State v. MacNab , 334 Or. 469, 481, 51 P.3d 1249 (2002). As the Supreme Court explained in Tovar , a defendant must have some apprehension only of the "range of allowable punishments" before the trial court can accept an uncounseled plea. 541 U.S. at 81, 124 S.Ct. 1379.

Notwithstanding that general rule, youth argues that the Supreme Court's decision in Padilla , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, required the juvenile court to warn youth that his plea would result in mandatory sex offender registration. Youth maintains that, without that warning, he could not knowingly and intelligently waive his right to counsel and enter a valid plea. In Padilla , the Court determined that the Sixth Amendment requires counsel to inform a client whether his or her plea carries a risk of deportation. The Court explained that, although deportation "is not, in a strict sense, a criminal sanction," it nevertheless was a "particularly severe" and "unique" "penalty" for a host of crimes committed by noncitizens, including "virtually every drug offense." 559 U.S. at 365, 359 n. 1, 130 S.Ct. 1473. After tracing the history of deportation as a consequence of criminal convictions, the Court explained that "deportation is * * * intimately related to the criminal process.

Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. Thus, [it is] most difficult to divorce the penalty from the conviction in the deportation process." Id. at 365-66, 130 S.Ct. 1473. The Court then described how deportation is "uniquely difficult to classify as either a direct or a collateral consequence," and, therefore, how the distinction between direct and collateral consequences is "ill suited" to evaluating inadequate assistance claims concerning the "specific risk of deportation." Id. at 366, 130 S.Ct. 1473. Finally, the Court concluded that "longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand" that "counsel must inform her client whether his plea carries a risk of deportation." Id. at 374, 130 S.Ct. 1473.

Youth maintains that Padilla extends to cases in which a plea will require sex-offender registration. Therefore, youth contends, the juvenile court was required to warn him that his uncounseled plea would result in mandatory sex-offender registration before he could have knowingly waived his rights to counsel and entered a plea. However, even assuming that Padilla would require an attorney or a juvenile court today to advise a youth that a plea to a particular charge may require registration as a sex offender, Padilla (a 2010 decision) cannot be applied retroactively under the circumstances of this case and thus would not have required an attorney, or a court, to advise youth in 1995 that his plea could result in mandatory registration as a sex offender.

The United States Supreme Court considered the retroactive application of Padilla in Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). In Chaidez , the petitioner was a lawful permanent resident whose guilty plea subjected her to mandatory deportation. Id. at 345, 133 S.Ct. 1103. After the petitioner's conviction was final, but before the Supreme Court decided Padilla , she filed a petition for a writ of coram nobis in federal court, claiming that her former attorney's failure to advise her of the immigration consequence of her plea constituted ineffective assistance of counsel under the Sixth Amendment. Id. The Court ultimately granted certiorari in Chaidez to resolve whether Padilla applied retroactively such that, before Padilla , counsel had a duty under the Sixth Amendment to advise defendants of the risk of deportation from a guilty plea. Id. at 344, 133 S.Ct. 1103. Applying the principles for federal retroactivity announced in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Court held that Padilla announced a new rule of criminal procedure that did not apply retroactively such that "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Chaidez , 568 U.S. at 358, 133 S.Ct. 1103.

Even more significant to this case, we had the opportunity to consider the retroactive application of Padilla in the context of a post-conviction case in which the petitioner claimed that he was entitled to relief because his counsel was ineffective and inadequate under the Oregon and United States constitutions for failing to inform him of "specific immigration-related consequences that could result from pleading guilty." Saldana-Ramirez v. State of Oregon , 255 Or. App. 602, 603, 298 P.3d 59, rev. den. , 354 Or. 148, 311 P.3d 525 (2013). We reviewed Padilla and Chaidez and concluded that

"[p]etitioner's Padilla -based post-conviction claim arises in a procedural posture functionally indistinguishable from that in Chaidez . Petitioner's conviction became final before Padilla issued. Thus, under federal retroactivity principles as elucidated in Chaidez , Padilla does not apply to petitioner's collateral challenge. Federal retroactivity principles govern whether a new federal rule applies retroactively in Oregon court."

Id. at 608, 298 P.3d 59 (brackets and internal quotation marks omitted). Youth's plea and juvenile adjudication became final before Padilla issued. To the extent that youth argues that, in view of Padilla , the juvenile court was compelled to grant his motion to vacate the prior adjudication on the ground that, at the time of the plea, the juvenile court did not advise him that his uncounseled plea would result in mandatory sex-offender registration, that argument fails because, under Saldana-Ramirez , Padilla does not apply retroactively and, therefore, youth is not entitled to its application as a matter of right.

In sum, we conclude that the juvenile court did not err when it denied youth's motion to set aside his juvenile adjudication based on its conclusion that youth had failed to prove by a preponderance of the evidence that his waiver of counsel and plea were invalid. The juvenile court at the time of the adjudication was not obligated to warn youth that his uncounseled plea would result in mandatory sex-offender registration or that youth had a possible statutory defense that he would waive by admitting to the allegations against him.

Affirmed.

      Youth also argues that the juvenile court was required to grant his motion based on issue preclusion. Youth's argument is based on a 2014 order from the Multnomah County Circuit Court, discussed in greater detail below, granting his "motion re. challenge to prior conviction." Youth did not preserve that argument, and we decline to exercise our discretion to address it as plain error. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief * * * provided that the appellate court may, in its discretion, consider a plain error.").

      During the proceedings that gave rise to this appeal, youth moved to delay the hearing on his motion to set aside his plea so that he could have more time to obtain the transcript, audio, or other evidence of his original plea hearing. The juvenile court granted that motion, but no transcript or audio was ultimately presented.

      ORS 163.345(1) provides:
      "In any prosecution under ORS 163.355, 163.365, 163.385, 163.395, 163.415, 163.425, 163.427 or 163.435 in which the victim's lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense."

      Youth raises an unpreserved argument that the Multnomah County Circuit Court order rendered his 1995 juvenile adjudication "void" and that the order should have been given preclusive effect in the Yamhill County Circuit Court proceeding to set aside his 1995 adjudication. We do not reach that issue, see 295 Or. App. at 422 n. 1, 434 P.3d at 483 n. 1, and also do not decide if either the Multnomah County Circuit Court order or judgment set aside youth's juvenile adjudication.

      On appeal, youth does not allege a violation of his rights under Article I, section 11, of the Oregon Constitution, which provides a right to counsel "in all criminal proceedings." Accordingly, we limit our analysis to the applicable federal constitutional standard.

      The Sixth Amendment provides, in relevant part, that, "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense."

      We also note that youth likely overstated to the juvenile court the applicability of the age-based defense provided by ORS 163.345(1). Youth argued that the defense was "irrefutable." But ORS 163.345(1) applies only when "the alleged lack of consent is based solely on incapacity due to the victim's age." State ex rel. Juv. Dept. v. Kitt , 129 Or. App. 591, 594, 879 P.2d 1348 (1994). It is "inapposite when there is an actual lack of consent." Id. (emphasis in original). Here, the state presented evidence that the victim was asleep when youth initiated the charged contact, which the state argued shows that the victim's lack of consent was due both to her age and to the fact that youth had used forcible compulsion to engage in sexual activity with her. Youth acknowledges in this appeal that the applicability of the defense under ORS 163.345(1) was not "irrefutable" and that it was merely a "possibility that would have been explored by a defense attorney." Even if we assume without deciding that a youth has a due process right to warnings about the risk of waiving an absolute defense before entering a valid plea admitting to the charges against him, the juvenile court was not faced with that situation when it determined that youth, in this case, had failed to prove that his 1995 adjudication should be set aside.

      We recognize that Saldana-Ramirez is a post-conviction case that followed a criminal conviction. In contrast, youth's motion to set aside his prior juvenile adjudication was filed under ORS 419C.610 and ORS 419C.615(1)(a). We do not mean to suggest that those statutes necessarily involve the same standards as statutes that provide an opportunity for post-conviction relief under ORS 138.510 to 138.680. See Smith v. Jester , 234 Or. App. 629, 632-33, 228 P.3d 1232 (2010) (addressing difference between motions under ORS 419C.610 and petitions for post-conviction relief); see also State ex rel. Juv. Dept. v. Tyree , 177 Or. App. 187, 191-93, 33 P.3d 729 (2001) (discussing scope of juvenile court's authority under ORS 419C.610 ). In particular, we do not address the question of whether a juvenile court would have the discretion under ORS 419C.610 to vacate a juvenile adjudication that became final before Padilla was decided under the principles announced in Padilla , notwithstanding the fact that it does not apply retroactively of its own force.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Donald Arthur WELCH, Defendant-Appellant.
    A158592
    Court of Appeals of Oregon.
    Submitted on remand July 10, 2018. December 12, 2018
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, filed the briefs for respondent.
    Before DeHoog, Presiding Judge, and Shorr, Judge, and Aoyagi, Judge.
   SHORR, J.

Defendant appeals from a judgment holding him in contempt of court for violating a restraining order issued under the Family Abuse Protection Act (FAPA), ORS 107.718. He assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) and the court's resulting finding of contempt, arguing that the evidence was insufficient to establish that he had "willfully" violated the provision in the FAPA order prohibiting him from "knowingly be[ing] or stay[ing] within 500 feet" of the victim, S. We initially dismissed defendant's appeal as moot. State v. Welch , 289 Or. App. 118, 407 P.3d 895 (2017) ( Welch I ). The Supreme Court remanded the case to us for reconsideration in light of its opinion in State v. K. J. B. , 362 Or. 777, 416 P.3d 291 (2018). State v. Welch , 363 Or. 119, 421 P.3d 351 (2018) ( Welch II ). For the reasons that follow, after considering K. J. B. , we conclude that defendant's appeal is not moot. Then, turning to the merits of defendant's appeal, we affirm the denial of defendant's MJOA.

We begin with a summary of the procedural background in Welch I . As noted above, defendant was charged with contempt of court for violating a FAPA order. At his contempt hearing, defendant moved for a judgment of acquittal. The trial court denied the motion and found defendant in contempt. Rather than imposing any sanctions against defendant, the court only ordered defendant to fully comply with the FAPA order going forward.

Defendant appealed and assigned error to the trial court's denial of his MJOA. One of the state's principal arguments on appeal was that defendant's appeal was moot because the court had not imposed any punitive sanctions against defendant and defendant had failed to show any probable collateral consequences that flowed purely from the judgment of contempt. Defendant countered that there was a meaningful collateral consequence, namely that contempt proceedings are inherently stigmatizing, and that judgments of contempt are appealable as a matter of law because of that inherent social stigma.

We were persuaded by the state's argument. We first described how we have resolved claims of mootness in previous appeals from judgments of contempt, and specifically whether those appeals were moot due to resulting social stigma. Welch I , 289 Or. App. at 120-22, 407 P.3d 895 (citing State v. Langford , 260 Or. App. 61, 317 P.3d 905 (2013) ; State v. Hauskins , 251 Or. App. 34, 281 P.3d 669 (2012) ; State ex rel. State of Oregon v. Hawash , 230 Or. App. 427, 215 P.3d 124 (2009) ). Based on those opinions, we concluded that defendant's appeal was moot because the trial court had not imposed any sanctions or other consequences on defendant apart from reiterating the preexisting requirement that defendant must comply with the FAPA order. Id. at 122, 407 P.3d 895. We explained that

"the trial court ordered defendant to comply with the restraining order against him, which defendant had a preexisting obligation to do. The court expressly decided not to impose any sanctions or 'consequences' on defendant. Defendant has not identified how a contempt judgment that imposes no sanctions and only mandates compliance with a preexisting court order generates sufficient social stigma to save the appeal from being moot. Absent a sufficiently stigmatizing sanction, we are not aware of any collateral consequences that flow directly and solely from the judgment of contempt itself."

Id .

Defendant sought review of our decision from the Oregon Supreme Court. The Supreme Court subsequently decided K. J. B. -a case involving an appeal from an order of civil commitment that had since expired-in which it clarified how a court should address claims of mootness. The Supreme Court then remanded Welch I to us for reconsideration in light of K. J. B . Welch II , 363 Or. 119, 421 P.3d 351. Of relevance to this case, the court explained in K. J. B. that

"[t]he burden rests with the party moving for dismissal to establish that a case is moot. ***
"The moving party's burden includes the burden of establishing that any collateral consequences either do not exist or are legally insufficient. That does not mean that the moving party is required to imagine all possible collateral consequences and then disprove each of them. Rather, when the moving party takes the position that a case has become moot, the responding party must identify any collateral consequences that he or she contends has the effect of producing the required practical effects of a judicial decision. At that point, the moving party must demonstrate that any of those identified collateral consequences either does not exist or is legally insufficient."

362 Or. at 785-86, 416 P.3d 291 (internal citations omitted). The court did not decide whether a social stigma attaches to an order of involuntary civil commitment and, if so, whether the stigma persists after the order has expired. Instead, the court concluded only that the state had failed to satisfy its burden to establish that the appeal was moot. As the court explained,

"the burden rests with the state to establish that any collateral consequences that petitioner has identified either do not exist or are legally insufficient. In this case, the state has done neither. It has simply asserted-without support of any kind-that the social stigma of which petitioner complains does not exist. That is not adequate to establish that there are no collateral consequences of the order of civil commitment. Accordingly, the state's motion to dismiss is denied."

Id. at 789, 416 P.3d 291.

Turning to this case, we similarly conclude that the state has failed to establish that the collateral consequences identified by defendant do not exist or are legally insufficient. In its original answering brief on appeal to our court, the state simply asserted-with little support-that the stigma identified by defendant does not exist. Under the standard articulated in K. J. B. , that is not adequate to carry the state's burden to establish mootness. In its supplemental briefing on remand, the state abandons its mootness argument altogether and concedes that it cannot demonstrate that defendant's appeal is moot. We accept that concession.

We do not decide whether the state could establish, either under the circumstances of this case or any other, that an appeal from a judgment of contempt is moot. Similarly, we do not decide whether to adopt defendant's view that punitive contempt proceedings always carry significant and inherent social stigma, such that no judgment of contempt can be moot for want of collateral consequences. Cf. Hawash , 230 Or. App. at 428, 215 P.3d 124 (deciding that an appeal from a judgment of contempt for failure to pay child support was moot because "appellant has not identified any collateral consequences that flow from the judgment of contempt, and we are aware of none"). We decide only that, in this case, the state did not meet its burden to establish that defendant's appeal is moot.

Having decided that defendant's appeal is not moot, we turn to the merits. When a defendant argues that there was insufficient evidence to find that he or she willfully violated a court order, we "review to determine whether the record contains evidence from which a rational trier of fact, drawing all reasonable inferences in the light most favorable to the state, could find all elements of contempt beyond a reasonable doubt." State v. Beleke , 287 Or. App. 417, 420, 403 P.3d 481, rev. den. , 362 Or. 208, 407 P.3d 814 (2017) ; see Langford , 260 Or. App. at 68, 317 P.3d 905. We recite the following facts consistently with our standard of review.

In 2014, the trial court entered a FAPA restraining order requiring that defendant "shall not knowingly be or stay within 500 feet" of S. One evening, after defendant had been served with the FAPA order, S and a friend went out to a local restaurant for dinner. Defendant was already eating dinner at the restaurant when they arrived. Defendant, who was sitting at a table on the restaurant's patio, saw S and her friend arrive at the restaurant and walk inside to the bar. S immediately saw defendant upon her arrival as well. The two women decided to wait at the bar to give defendant a chance to leave. After defendant had remained at his table for several minutes, S told the manager of the restaurant that she wanted to call the police to report defendant but that she would wait 10 to 15 minutes more before doing so. The manager asked the server to bring defendant his check and warn him that S planned to call the police. The server did so, and defendant finished his meal and paid his check in cash. The server brought defendant his change, but defendant still remained at his table. During that time, S had called the police, who dispatched an officer to the restaurant. S testified that the moment that the officer pulled up outside the restaurant, defendant got up "super fast" and left. At least 15 to 20 minutes had passed from the time S arrived at the restaurant until defendant left. Defendant was charged with contempt of court on an information that alleged that he had violated the FAPA order by "knowingly staying within 500 feet" of S. At the close of evidence in the contempt hearing, defendant moved for a judgment of acquittal for the reasons described above. The trial court denied the motion. The court then found defendant in contempt, explaining to defendant that "[t]here was an order in place. You saw [S] come in. You knew you should have left. You didn't choose to leave. * * * Why you chose to take your time, it's unclear from the court's perspective."

A person can be found in contempt of court if the state initiates a contempt proceeding under ORS 33.065(2) and proves that the person "willfully" acted with "disobedience of, resistance to or obstruction of the court's * * * orders," ORS 33.015(2)(b) , including a valid FAPA order. A prima facie case of contempt is shown by (1) proof of an existing, valid court order, (2) the contemnor's knowledge of the order, and (3) the contemnor's willful noncompliance with that order. State v. Nicholson , 282 Or. App. 51, 61, 383 P.3d 977 (2016) (citing Couey and Couey , 312 Or. 302, 306, 821 P.2d 1086 (1991) ). Doing or failing to do something "willfully" in that context means acting "intentionally and with knowledge that the act or omission was forbidden conduct." Id. at 62, 383 P.3d 977. Thus, a trier of fact "can infer a willful mental state from facts showing a knowing violation." Elizabeth Lofts Condo. Owners' v. Victaulic Co. , 293 Or. App. 572, 580, 428 P.3d 952 (2018) ; see also State v. Crombie , 267 Or. App. 705, 710, 341 P.3d 841 (2014) ("[I]n order to prove a willful violation of the order, the state need show only the existence of a valid order and that defendant knew about it and chose not to comply with it."). If the trial court finds that the defendant committed a willful violation, it is not required to make a separate finding that the defendant acted with "bad intent" in order to hold him or her in contempt. Couey , 312 Or. at 306, 821 P.2d 1086.

Here, the state established that there was a valid FAPA order and that defendant knew of the order. Defendant does not dispute those elements. Instead, defendant contends, as he did before the trial court, that no reasonable trier of fact could find based on the evidence that he willfully disobeyed the terms of the FAPA order. We disagree. Defendant perhaps could have complied with the FAPA order even if he did not immediately leave the restaurant when S arrived. A brief delay was likely unavoidable under the circumstances of this case. But, even accepting the shortest estimate of how long defendant remained after S's arrival-15 minutes-that delay, when considered along with the other facts provided above, allowed a rational trier of fact to infer that defendant willfully prolonged his departure longer than was reasonable or necessary under the circumstances. To reiterate, there is evidence from which a rational trier of fact could find that, after S arrived at the restaurant, defendant noticed her, finished his meal, waited for a server to bring his check and change, and ultimately did not get up from his table and leave the restaurant until the precise moment that the police arrived in response to S's phone call. At that point, defendant got up "super fast" and left. A rational trier of fact could find that defendant willfully failed to comply with the FAPA order in light of those facts.

Defendant cites Southworth and Southworth , 113 Or. App. 607, 611, 835 P.2d 122 (1992), for the proposition that a person who makes reasonable efforts to comply with a court order cannot be said to have willfully violated the order. Defendant argues that the trial court should have granted his MJOA because he made reasonable efforts to leave the restaurant once S arrived, and he is entitled to the presumption that he acted in good faith. In Southworth , we reversed a judgment of contempt against a mother for violation of the visitation provisions of a dissolution judgment that provided that the father would pick up and drop off the child at the mother's doorstep. On multiple occasions, the father had behaved violently when he arrived at the mother's home, which prompted the owners of the property to tell the mother that the father was no longer allowed to enter the property. The mother subsequently arranged to pick up and drop off the child elsewhere. The trial court held mother in contempt for her unilateral decision to change the pick-up and drop-off location. On review, we concluded that the mother had not willfully violated the judgment and reversed. We explained that the father's behavior had made it "impossible" for the mother to comply with the precise terms of the dissolution judgment and determined that the mother had made a "reasonable attempt to comply with the spirit, if not the letter, of the visitation provisions." Id. at 612, 835 P.2d 122.

Southworth is distinguishable from this case and does not lead us to conclude that the trial court erred by denying defendant's MJOA. Unlike in Southworth , where the mother's failure to comply with the precise terms of the visitation provisions was a "consequence of [the] father's misconduct," id. at 611, 835 P.2d 122, here, defendant's failure to more promptly leave the restaurant does not appear to have been the consequence of any other person's behavior. Rather, the evidence supports a finding that defendant chose to remain at the restaurant on his own accord and, in doing so, did not make a reasonable or good-faith attempt to comply with either the spirit or the letter of the FAPA order.

In sum, we conclude that a reasonable trier of fact could have found that defendant willfully violated the terms of the FAPA order. Accordingly, the trial court did not err when it denied defendant's MJOA.

Affirmed.

      Defendant captioned his motion in the trial court as an MJOA. For simplicity, we use defendant's label throughout.

      S and her friend both testified at the contempt hearing that 40 to 45 minutes had elapsed between when they arrived and defendant left. By contrast, the restaurant manager testified that only 15 to 20 minutes had passed. The trial court found the manager's testimony to be the "most believable," but did not make an express finding regarding how long defendant remained at the restaurant after S arrived. Instead, the court only found that there was "a waiting period of time" during which defendant had an "opportunity to leave." We presume that the court decided that defendant remained at the restaurant for at least 15 to 20 minutes, and, as discussed below, do not need to resolve whether defendant waited up to 40 or 45 minutes. See State v. Barboe , 253 Or. App. 367, 380, 290 P.3d 833 (2012), rev. den. , 353 Or. 714, 303 P.3d 943 (2013) ("Where the trial court does not make findings of fact on all of the issues and there is evidence based upon which particular factual issues could be decided in more than one way, 'we will presume that the facts were decided in a manner consistent with the trial court's ultimate conclusion.' " (Quoting Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968).)).

      ORS 33.065(2) provides:
      "The following persons may initiate the proceeding [to impose punitive sanctions for contempt] by an accusatory instrument charging a person with contempt of court and seeking a punitive sanction:
      "(a) A city attorney.
      "(b) A district attorney.
      "(c) The Attorney General."

      ORS 33.015(2) provides:
      " 'Contempt of court' means the following acts, done willfully:
      "(a) Misconduct in the presence of the court that interferes with a court proceeding or with the administration of justice, or that impairs the respect due the court.
      "(b) Disobedience of, resistance to or obstruction of the court's authority, process, orders or judgments.
      "(c) Refusal as a witness to appear, be sworn or answer a question contrary to an order of the court.
      "(d) Refusal to produce a record, document or other object contrary to an order of the court.
      "(e) Violation of a statutory provision that specifically subjects the person to the contempt power of the court."

      Defendant also contends, as part of a second assignment of error, that the trial court applied the wrong legal standard when it determined that defendant had violated the FAPA order. Defendant did not preserve that argument for appeal, and we decline defendant's invitation to conduct plain-error review.


author: GARRETT, J.

text:
    In the MATTER OF the MARRIAGE OF Robert Dale STANSELL, Petitioner-Appellant, and Meghan Michelle Stansell, Respondent-Respondent.
    A164986
    Court of Appeals of Oregon.
    Argued and submitted October 4, 2018. December 5, 2018
    Daniel S. Margolin, Portland, argued the cause for appellant. Also on the briefs was Stephens & Margolin, LLP.
    Joel E. Fowlks argued the cause for respondent. On the brief was Richard E. Fowlks.
    Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.
   GARRETT, J.

Husband appeals a supplemental judgment modifying a general judgment of dissolution that awarded spousal support to wife. ORS 107.135(1)(a). Husband argues that the trial court lacked authority to modify the judgment. We agree and reverse.

The relevant facts are few and undisputed. In 2012, the parties divorced under the terms of a stipulated general judgment of dissolution. The judgment required husband to pay wife spousal support in monthly payments for five years, beginning retroactively in 2011 and continuing through August 2016. On July 26, 2016, wife filed a motion to modify spousal support, requesting an extension of the duration of the award. On August 1, husband made his final spousal support payment as scheduled. On August 13, husband was served with wife's motion. The trial court granted wife's motion and modified the general judgment to extend husband's spousal support obligation. Husband appealed.

On appeal, husband's argument-which was rejected by the trial court-is that the trial court lacked authority under ORS 107.135 to modify spousal support because husband's obligation terminated on August 1, before wife served husband with her motion. Wife responds that, under Park and Park , 43 Or. App. 367, 602 P.2d 1123 (1979), rev. den. , 288 Or. 335, --- P.3d ---- (1980) it sufficed that she had filed her motion before the termination of spousal support. Whether the trial court has authority under ORS 107.135 to modify a judgment awarding spousal support is a question of law. See id. at 369-71, 602 P.2d 1123.

Resolution of this case is guided by two principles. First, we have held that, when an obligation to pay spousal support terminates, the obligation effectively ceases to exist, leaving nothing for the court to modify. See, e.g. , id. at 370-71, 602 P.2d 1123 (where spousal support terminated "by the express terms of the decree," no support could be thereafter awarded "by 'amendment' because there would exist no duty to support at that time"); see also Wrench and Wrench , 98 Or. App. 352, 353, 779 P.2d 195, rev. den. , 308 Or. 608, 784 P.2d 1101 (1989) (holding that, "when the final [support] payment was made, the obligation was discharged" and, after that date, "husband had no obligation that could support a modification"); Woita and Woita , 98 Or. App. 83, 87, 778 P.2d 504, rev. den. , 308 Or. 608, 784 P.2d 1101 (1989) (trial court lacked authority to reinstate spousal support obligation in a modification proceeding when the modification proceeding was initiated ten years after the support obligation terminated). Therefore, the trial court's modification of the support obligation is valid only if the court had authority to modify the judgment before the support obligation terminated on August 1, 2016.

Second, the question of whether the trial court had authority to modify the spousal support obligation before August 1 is governed by ORS 107.135(1)(a), which provides:

"The court may at any time after a judgment of *** dissolution of marriage *** is granted, upon the motion of either party and after service of notice on the other party ***:
"(a) Set aside, alter or modify any portion of the judgment that provides *** for the support of a party ***[.]"

Thus, the plain language of the statute provides that a court may modify spousal support "at any time" after a party's motion and "after service" of notice on the other party. It follows that a trial court lacks authority to modify spousal support unless and until service occurs.

Applying those two principles requires the conclusion that the trial court lacked authority to modify the support obligation. Although wife filed her motion on July 26, 2016, the trial court could not have acquired authority to modify the judgment until after husband was served on August 13. In the intervening period, however, husband's support obligation undisputedly terminated as a result of the August 1 payment. Because the support obligation ceased to exist before husband was served, no obligation remained for the trial court to modify. See Wrench , 98 Or. App. at 353, 779 P.2d 195 ; Park , 43 Or. App. at 370-71, 602 P.2d 1123.

Wife nonetheless contends that Park and its progeny set out a different rule: that a motion for modification need only be filed, but not served, before spousal support terminates in order to preserve the court's authority to modify the obligation. But wife misreads Park . As we understand it, her contention stems from the fact that Park made no mention of service. That is true, but irrelevant. In Park , the wife did not file her motion to modify spousal support until more than a month after the husband's spousal support obligation had terminated; we held that the trial court lacked authority to amend the support obligation because it had terminated by the time that the wife's motion was filed. Park , 43 Or. App. at 370-71, 602 P.2d 1123. The lack of any discussion of service in that case merely reflects that wife's motion to modify failed for a different reason. Thus, Park stands for the proposition that filing a motion to modify support before that support obligation terminates is a necessary condition of the trial court's authority; contrary to wife's reading, Park and cases following it do not hold that filing is a sufficient condition. ORS 107.135(1)(a) plainly states that filing and service are both necessary.

The trial court erred in modifying the judgment; accordingly, we need not reach husband's other arguments on appeal.

Reversed.

      "[S]upport requirements may be modified so long as the duty to support exists, but not thereafter." Park , 43 Or. App. at 370, 602 P.2d 1123.

      Wife does not dispute that husband's support obligation was terminated as of the last payment on August 1, 2016.

      See, e.g. , Goertel and Goertel , 209 Or. App. 585, 149 P.3d 247 (2006) ; Harkins and Harkins , 200 Or. App. 468, 115 P.3d 981 (2005), rev. den. , 340 Or. 672, 136 P.3d 742 (2006) ; Wrench , 98 Or. App. 352, 779 P.2d 195 ; Woita , 98 Or. App. 83, 778 P.2d 504. Like Park , each of those cases involved the post-termination filing of a motion to modify spousal support, and did not discuss service.

      It appears that we have not expressly addressed whether, for a modification to be timely, the trial court must act on a motion to modify before the support obligation terminates or, instead, whether it suffices that the motion has been filed and served-that is, that the court has acquired the authority to act-before the obligation terminates. We need not address that question here, because the court in this instance did not even acquire the authority to act until August 13, twelve days after husband's support obligation terminated.