James v. Cupp

671 P.2d 750 (1983)

65 Or.App. 377

David Ray JAMES, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

No. 128457; CA A27401.

Court of Appeals of Oregon.

Argued and Submitted September 16, 1983.

Decided November 9, 1983.

*751 Jay Edwards, Salem, argued the cause and filed the brief for appellant.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

This is a post-conviction relief case in which petitioner appeals an adverse ruling by the trial court. We modify the judgment.

Petitioner raises several assignments of error, only one of which requires discussion. He was convicted on two counts of first degree sodomy, two counts of first degree rape and one count of first degree sexual abuse. The convictions all stemmed from one transaction and the crimes were all committed against one victim. The convictions were merged for sentencing; petitioner received a 14-year sentence. Nonetheless, petitioner has all five convictions on his record. He argues that only one conviction should have been entered. He is only partly right.

A criminal defendant may be separately convicted and sentenced for both rape and sodomy committed during the same transaction and against the same victim. State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980). Thus, at least one each of defendant's convictions for rape and sodomy was permissible. On the other hand, Garcia appears to preclude convicting and sentencing defendant for more than one count each of sodomy and rape arising out of the same transaction unless "the defendant, after one act, starts anew after a time for reflection." 288 Or. at 429, 605 P.2d 671. The record discloses no "time for reflection" here. We conclude, therefore, that defendant's convictions on the second rape and sodomy counts were inappropriate. The sexual abuse count was based on facts independent of either rape or sodomy; that conviction was proper. See State v. Harris, 287 Or. 335, 340, 599 P.2d 456 (1979).

The judgment of the post-conviction relief trial court is reversed and remanded with instructions to grant petitioner's petition by deleting the judgments against petitioner for sodomy in the first degree (count IV) and rape in the first degree (count V) in Linn Co. File No. 5563. In all other respects, it is affirmed.

Reversed and remanded.