State v. Kuester

Convictions for separate crimes stemming from the same event may not be merged unless they share all elements in common; an indefinite sentence of post-prison supervision is not permitted by State v. Stalder.

Defendant arrested after a confrontation at his home. Deputies and two sergeants went to his home intending to evict him. During the eviction, Defendant pointed a gun at one of the deputies and threatened to kill them. Defendant was indicted of unlawful use of a weapon (UUW) with a firearm, pointing a firearm at another, and three other crimes, and was convicted of all five. Defendant was sentenced to 60 months in prison for the UUW conviction, and lesser amounts of time for the other convictions. Defendant was also sentenced to 36 months of post-prison supervision (PPS) minus his time served. Defendant appealed, assigning error to the trial court for failing to merge the guilty verdict of the first two aforementioned crimes, and challenging the sentence imposed for UUW. Regarding the first assignment of error, the Oregon Court of Appeals held that the difference in the two convictions was that the UUW requires that the weapon used be “deadly and dangerous,” while a firearm was not considered to be automatically deadly and dangerous (i.e., an unloaded firearm). The court therefore held that the two convictions should not be merged. Regarding Defendant’s second assignment of error, Defendant argued that the PPS term of “36 month(s) minus time actually served” is “impermissibly indeterminate in length.” The court held that the term of PPS was indefinite and that the trial court plainly erred in deciding the sentence. Remanded for resentencing; otherwise affirmed.