Martinez v. Cain

136

Argued and submitted May 7, 2019; decision of Court of Appeals reversed,

judgment of circuit court reversed, and case remanded to circuit court for

further proceedings February 21, 2020

PEDRO MARTINEZ,

Petitioner on Review,

v.

Brad CAIN,

Superintendent,

Snake River Correctional Institution,

Respondent on Review.

(CC CV160282) (CA A163992) (SC S066253)

458 P3d 670

Petitioner had been convicted and given separate sentences for (among other

things) first-degree robbery and attempted aggravated felony murder based on

the predicate felony of first-degree robbery. He sought post-conviction relief, con-

tending that his counsel had been constitutionally inadequate by failing to argue

that those crimes should be merged. The post-conviction court granted summary

judgment against petitioner, concluding that he had not been prejudiced by his

counsel’s failure to object, because as a matter of law the sentences would not

merge. A majority of the Court of Appeals panel affirmed, with one judge dissent-

ing. On review, the question was whether (if counsel had objected) petitioner’s con-

victions should have been merged under ORS 161.067(1), a statute that requires

merger of convictions unless “each [criminal] provision requires proof of an ele-

ment that the other does not.” Held: (1) Felony murder expressly incorporates

other crimes (the predicate felonies) to which additional elements are then added

(among other things, the death of a nonparticipant in the predicate felony); (2) one

of the predicate felonies is first-degree robbery, either completed or attempted;

(3) to avoid merger under ORS 161.067(1), the robbery count had to require proof of

an element that felony murder did not; (4) because both counts against petitioner

rested on the same factual robbery, the state’s proof of (attempted aggravated)

felony murder based on that first-degree robbery—whether it was completed or

attempted—necessarily meant that the state would have proved every element of

first-degree robbery, whether completed or attempted; and (5) because the robbery

count did not require proof of an element that the attempted aggravated felony

murder count did not, the counts should have been merged on proper objection.

The decision of the Court of Appeals is reversed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

En Banc

On review from the Court of Appeals.*

______________

* On appeal from Umatilla County Circuit Court, Eva J. Temple, Judge. 293

Or App 434, 428 P3d 976 (2018).

Cite as 366 Or 136 (2020) 137

Lindsey Burrows, O’Connor Weber LLC, Portland, argued

the cause and filed the briefs for petitioner on review.

Doug M. Petrina, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Erik M. Blumenthal, Portland, filed the brief for amicus

curiae Oregon Justice Resource Center.

NELSON, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

138 Martinez v. Cain

NELSON, J.

The case before us presents an issue of criminal

law in the procedural context of a post-conviction relief pro-

ceeding. Petitioner had been convicted and given separate

sentences for (among other things) attempted aggravated

murder and first-degree robbery. He sought post-conviction

relief, contending that his counsel had been constitutionally

inadequate by failing to argue that those crimes should be

merged. The post-conviction court granted summary judg-

ment against petitioner, concluding that he had not been

prejudiced by his counsel’s failure to object, because as a

matter of law the sentences would not merge. A majority of

the Court of Appeals panel affirmed, with one judge dissent-

ing. Martinez v. Cain, 293 Or App 434, 428 P3d 976 (2018).

On review, the question before us is whether peti-

tioner’s convictions should have been merged under ORS

161.067(1). For the reasons that follow, we reverse the deci-

sions of the Court of Appeals and post-conviction court.

I. FACTS

A. Underlying Criminal Conviction

The underlying historical facts are undisputed for

our purposes, and we take them from the Court of Appeals’

opinion in petitioner’s direct criminal appeal, State v.

Martinez, 270 Or App 423, 348 P3d 285, rev den, 357 Or

640 (2015). Petitioner had approached the victim, who was

sitting in a car.

“[Petitioner], who was ‘playing with’ a gun, asked the victim

for his wallet. The victim refused. [Petitioner] then asked

the victim to get out of his car, and the victim refused that

request, too, saying ‘you ain’t getting my wallet and you

ain’t getting my car.’ [Petitioner] said, ‘Well, then I’m going

to have to shoot you.’ As the victim tried to drive away,

[petitioner] did just that, shooting the victim once in the

arm. The victim testified that his car already was moving

when [petitioner] fired; the victim believes that it is pos-

sible that the car bumped [petitioner’s] hand, causing him

to lose some control of the gun when he pulled the trigger.

The victim drove the short distance to his home and called

9-1-1. He was transported to a hospital. A doctor who treated

the victim testified that the bullet broke the victim’s arm

and fragments traveled into the victim’s chest area, coming

Cite as 366 Or 136 (2020) 139

within an inch of multiple blood vessels. Had the bullet hit

one of the major arteries, the victim probably would have

died within 10 minutes if he had not received medical care.”

Id. at 425.

Petitioner was indicted on several counts, though

the only counts relevant here charged petitioner with first-

degree robbery and attempted aggravated felony murder.

Before continuing, we offer a brief description of the crimes

with which petitioner was charged.

We begin with felony murder. Briefly, a defendant

commits felony murder when he or she either commits or

attempts to commit one of a listed set of felonies (predicate

felonies), and either the defendant or another participant in

the crime causes the death of the victim. See ORS 163.115

(1)(b) (2011).1 One of the predicate felonies for felony mur-

der is first-degree robbery. ORS 163.115(1)(b)(G) (2011) pro-

vided, in part:

“(1) Except as provided in ORS 163.118 and 163.125,

criminal homicide constitutes murder:

“* * * * *

“(b) When it is committed by a person, acting either

alone or with one or more persons, who commits or attempts

to commit any of the following crimes and in the course of

and in furtherance of the crime the person is committing

or attempting to commit, or during the immediate flight

therefrom, the person, or another participant if there be

any, causes the death of a person other than one of the

participants:

“* * * * *

“(G) Robbery in the first degree as defined in ORS

164.415[.]”

As relevant to the superintendent’s argument here,

it is important to note that a defendant may commit fel-

ony murder even though the defendant did not complete

the underlying felony. That is, the statute will apply if the

1

The legislature has since substantially amended both ORS 163.115, defin-

ing felony murder, and ORS 163.095, defining aggravated murder. See Or Laws

2019, ch 635, §§ 1-4. Those changes are not relevant to the analysis of whether

petitioner’s trial counsel may have been constitutionally inadequate at the time

of his trial. Our discussion of those statutes will refer to the versions in effect

when petitioner committed his crimes in 2012.

140 Martinez v. Cain

defendant only attempted to commit a predicate felony. ORS

163.115(1)(b) (2011) (statute applies when person “commits or

attempts to commit” any of the predicate felonies). A defen-

dant attempts to commit a crime when he or she intention-

ally takes a substantial step toward committing a crime.

See ORS 161.405(1).2

At the time petitioner committed his crimes, fel-

ony murder could become elevated to aggravated murder.

That could occur when the defendant’s conduct not only

met the requirements for felony murder, but the defendant

also personally and intentionally killed the victim. See ORS

163.095(2)(d) (2011), which provided, in part:

“As 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:

“* * * * *

“[(2)](d) Notwithstanding ORS 163.115(1)(b), the defen-

dant personally and intentionally committed the homicide

under the circumstances set forth in ORS 163.115(1)(b).”

Throughout this opinion, we will refer to that as “aggra-

vated felony murder,” although the statutes drew no such

terminological distinction.

As noted, the indictment against petitioner charged

him with first-degree robbery and attempted aggravated

felony murder. The attempted aggravated felony murder

charge relied on the first-degree robbery charge, specifi-

cally alleging that petitioner had attempted, personally and

intentionally, to kill the victim while in the course of com-

mitting, or attempting to commit, first-degree robbery.3

2

ORS 161.405 provides that “[a] person is guilty of an attempt to commit

a crime when the person intentionally engages in conduct which constitutes a

substantial step toward commission of the crime.”

3

The indictment provided as follows:

“COUNT 1

“ATTEMPTED AGGRAVATED MURDER WITH A FIREARM

“The said [petitioner], on or about June 11, 2012, in the County of

Multnomah, State of Oregon, did unlawfully and intentionally commit and

attempt to commit the crime of Robbery in the First Degree and in the course

of and in the furtherance of the crime that [petitioner] was committing and

attempting to commit, [petitioner] personally and intentionally attempted to

Cite as 366 Or 136 (2020) 141

Petitioner was found guilty on both counts, and the

trial court entered separate convictions for the first-degree

robbery count and the attempted aggravated felony murder

count.

Petitioner’s trial counsel did not object or argue that

the trial court should have merged the convictions under

ORS 161.067, which governs merger. That statute sets out

when a trial court may enter separate convictions sentences

if a defendant has violated multiple statutory provisions as

part of the same conduct or criminal episode. Specifically,

the relevant subsection of that statute, ORS 161.067(1),

provides:

“When the same conduct or criminal episode violates

two or more statutory provisions and each provision

requires proof of an element that the others do not, there

are as many separately punishable offenses as there are

separate statutory violations.”

As noted, petitioner’s trial counsel failed to argue

that the requirements of the statute had not been satisfied

and, therefore, that the first-degree robbery count should

have been merged into the attempted aggravated murder

count. If ORS 161.067(1) applied and did not require separate

convictions, then petitioner would only have been convicted

on the attempted aggravated felony murder count. The first-

degree robbery count would have merged into that count.

In the absence of any objection, however, the trial

court entered a judgment of conviction showing separate

cause the death of [the victim], a human being who was not a participant in

the crime, and during the commission of this felony, the [petitioner] used and

threatened the use of a firearm, contrary to the statutes in such cases made

and provided and against the peace and dignity of the State of Oregon[.]

“COUNT 2

“ROBBERY IN THE FIRST DEGREE WITH A FIREARM

“The said [petitioner], on or about June 11, 2012, in the County of

Multnomah, State of Oregon, did unlawfully and knowingly, while in the

course of committing and attempting to commit theft, with the intent of pre-

venting and overcoming resistance to [petitioner’s] taking of property and

retention of the property immediately after the taking, and being armed with

a deadly weapon, use and threaten the immediate use of physical force upon

[the victim], contrary to the statutes in such cases made and provided and

against the peace and dignity of the State of Oregon[.]

“The state further alleges that during the commission of this felony the

[petitioner] used and threatened the use of a firearm.”

142 Martinez v. Cain

convictions for both first-degree robbery and attempted

aggravated felony murder. The court imposed sentences on

each of those counts, making 45 months of the first-degree

robbery sentence run consecutive to the attempted aggra-

vated murder sentence.4

Petitioner raised the merger issue in the Court of

Appeals, but the court rejected that assignment of error as

unpreserved. See Martinez, 270 Or App at 424. The court

otherwise affirmed petitioner’s convictions and sentences.

B. Post-Conviction Proceedings

Petitioner then sought post-conviction relief, alleg-

ing that his trial counsel had been inadequate in (among

other things) failing to object to the trial court’s failure to

merge the guilty verdict on the first-degree robbery count

into the guilty verdict on the attempted aggravated felony

murder count. The superintendent moved for summary judg-

ment. He argued that petitioner had not been prejudiced by

his counsel’s failure to object because the two counts would

not merge as a matter of law. In doing so, he presented two

slightly different arguments under ORS 161.067(1).

As noted, ORS 161.067(1) requires the trial court to

enter separate convictions if “each provision requires proof

of an element that the others do not.” The superintendent

asserted that aggravated felony murder and first-degree

robbery each had elements that the other did not. Attempted

aggravated felony murder included the element of personally

and intentionally attempting to cause the victim’s death, an

element not found in first-degree robbery. First-degree rob-

bery, on the other hand, had an element not required for

attempted aggravated felony murder: completion of the rob-

bery. That is, a jury could convict a defendant of attempted

aggravated felony murder for having only attempted the

robbery, but it could not convict the defendant of first-degree

robbery unless the robbery had been completed.

In support, the superintendent also relied on a

footnote in State v. Barrett, 331 Or 27, 10 P3d 901 (2000).

Applying former ORS 161.062(1)—a statute essentially

4

Specifically, the court sentenced petitioner to 120 months for attempted aggra-

vated murder and 90 months for first-degree robbery, with 45 months of the robbery

sentence to run consecutively to the attempted aggravated murder sentence.

Cite as 366 Or 136 (2020) 143

identical to the merger statute at issue here5 —this court

stated in a footnote that the trial court could enter separate

convictions for aggravated felony murder and the underly-

ing predicate felonies:

“[A] separate conviction could be entered on the robbery

charge on remand. Robbery and aggravated murder clearly

are set out in two different statutory provisions, ORS

164.415 and ORS 163.095. Moreover, in light of our conclu-

sion that the various aggravating circumstances are not

‘elements’ for purposes of former ORS 161.062(1) but, rather,

alternative ways of proving the element of aggravation, the

statutory provisions penalizing robbery and aggravated

murder each involve an element that the other does not and

address separate legislative concerns. Accordingly, for pur-

poses of former ORS 161.062(1), we do not view robbery as a

lesser-included offense to the aggravated-murder charge.”

Id. at 37 n 4. Although Barrett did not depend on the distinc-

tion between a completed and attempted predicate felony, it

stated, more broadly, that predicate felonies were not them-

selves elements of aggravated felony murder, but were “alter-

native ways of proving” a single element of aggravation.

In response to the superintendent’s argument in the

Court of Appeals, petitioner argued that the statement in

Barrett was dictum. The correct rule, petitioner contended,

was that articulated by this court in State v. Tucker, 315

Or 321, 845 P2d 904 (1993). In that case, the defendant had

been convicted of (among other things) two counts of aggra-

vated felony murder against each of the two victims, one

based on the underlying felony of robbery, the other based

on the underlying felony of burglary. See id. at 323-24; id. at

323 n 1. The trial court had merged the aggravated felony

murder counts together, but it had not merged the under-

lying robbery and burglary counts into those aggravated

felony murder counts. Id. at 324-25. This court, applying

former ORS 161.062, held that “robbery and burglary were

lesser included offenses of aggravated felony murder.” Id. at

5

Former ORS 161.062(1) was repealed by Or Laws 1999, ch 136, § 1. We have

described it as the “not quite identical twin” of ORS 161.067(1). State v. Crotsley,

308 Or 272, 276 n 3, 779 P2d 600 (1989). “Given their shared history, this court

has treated former ORS 161.062 and ORS 161.067 as essentially interchange-

able.” State v. Gensitskiy, 365 Or 263, 291, 446 P3d 26 (2019).

144 Martinez v. Cain

331. Therefore, this court held, the trial court had erred in

not merging those counts. Id.

The superintendent responded that Tucker had

been overruled by Barrett, and the post-conviction court

ultimately agreed. It granted the superintendent summary

judgment.

Petitioner appealed to the Court of Appeals, which

affirmed in a split decision. Martinez, 293 Or App 434. As

relevant here, the majority concluded that the footnote

from Barrett controlled: a predicate felony is not an ele-

ment of aggravated felony murder. Id. at 435. The major-

ity also agreed with the superintendent that the require-

ments of ORS 161.067(1) were not met, because the two

crimes each required proof of an element that the other did

not: attempted aggravated felony murder does not require

proof of a completed first-degree robbery—attempt being

sufficient—while first-degree robbery does require proof of

a completed robbery. Id. at 435-36. Accordingly, the majority

agreed that the post-conviction court had been correct: the

two counts could not merge as a matter of law, so petitioner

was not prejudiced by his counsel’s failure to object. See

id. at 435.

Senior Judge Brewer dissented, concluding that the

majority was incorrect in its merger analysis. He argued

that the Barrett footnote was inaccurate and should be

reconsidered. Id. at 440-43. He also would have concluded

that ORS 161.067(1) required merger. The relevant require-

ment of ORS 161.067(1) was whether each crime required

proof of at least one element that the other did not. 293 Or

App at 444-45. The dissent rejected the superintendent’s

contention that felony murder and first-degree robbery had

different elements because felony murder could be proved by

evidence of an attempt to commit first-degree robbery. See

id. at 445-46. While it was theoretically possible to prove fel-

ony murder by proving an attempt to commit a predicate fel-

ony, “where a completed predicate felony is proved, it has no

element that is not subsumed in an attempted aggravated

felony murder conviction based on that completed felony.”

Id. at 449 (footnote omitted). Because the dissent concluded

that first-degree robbery did not require proof of an element

Cite as 366 Or 136 (2020) 145

that attempted aggravated felony murder did not, the trial

court should have merged the first-degree robbery convic-

tion into the attempted aggravated felony murder convic-

tion. Id. at 447-49.

Petitioner sought review, which we allowed.

II. DISCUSSION

A. Requirements of ORS 161.067(1)

As noted, the issue here involves whether—

assuming that petitioner’s trial counsel had invoked ORS

161.067(1)—that statute would have prohibited the trial

court from entering separate convictions against petitioner

for both attempted aggravated felony murder and first-

degree robbery. Again, the relevant text of that statute

provides:

“When the same conduct or criminal episode violates

two or more statutory provisions and each provision

requires proof of an element that the others do not, there

are as many separately punishable offenses as there are

separate statutory violations.”

Textually, ORS 161.067(1) authorizes separately

punishable offenses when three conditions are met: (1) the

defendant’s actions qualify as the same conduct or criminal

episode; (2) the defendant’s actions violate more than one

separate statutory provision; and (3) each separate statu-

tory provision requires proof of an element that the other

provision(s) do not. See State v. Crotsley, 308 Or 272, 278, 779

P2d 600 (1989). The parties in this case do not dispute that

the first two requirements are met: petitioner, in a single

criminal episode, violated two or more statutory provisions.

The only statutory requirement at issue here is the

third: whether each separate statutory provision requires

proof of an element that the others do not. It is not enough

to show that one offense has an element that the other does

not; the other offense also must have an element that the

first does not. See State v. Blake, 348 Or 95, 99, 228 P3d

560 (2010) (“if one offense contains X elements, and another

offense contains X + 1 elements, the former offense does

not contain an element that is not also found in the latter

146 Martinez v. Cain

offense”). In short, the requirement is met, and the offenses

will not merge, only if each statutory offense at issue has a

unique element not in common with the other offenses.

B. Robbery Count Did Not Require Element Not Found in

Aggravated Felony Murder Count

The primary point of contention in this case turns

on felony murder and its relationship to the predicate crimes

for felony murder. Accordingly, we begin there.

Felony murder was defined in ORS 163.115(1)(b)

(2011) in a way differently from most other crimes. Ordi-

narily, a statute defining a crime sets out a series of ele-

ments; when the elements are met, the crime has been

proved. The statute defining felony murder varies that by

expressly incorporating other crimes (the predicate felonies)

to which additional elements are then added (the death of a

nonparticipant in the predicate felony, and a particular rela-

tionship between that death and the commission of the fel-

ony). Id. The list of predicate felonies is lengthy and includes

both the completed and attempted versions.6

First-degree robbery is one of the predicate offenses

of felony murder, whether it is completed or only attempted.

ORS 163.115(1)(b)(G) (2011). Therefore, felony murder pred-

icated on a first-degree robbery will encompass all the ele-

ments of first-degree robbery. That is not only true for a

completed robbery, but also for an attempted robbery. To

prove felony murder based on a completed first-degree rob-

bery, the state definitionally must prove every element of

a completed robbery. To prove felony murder based on an

attempted first-degree robbery, the state definitionally must

prove every element of an attempted robbery. Whether the

robbery was completed or attempted, then, there is no ele-

ment of the robbery count that would not have to be proved

in the felony murder count.

In this case, the superintendent does not dispute

that both the attempted aggravated felony murder count

and the first-degree robbery count pleaded the same fac-

tual robbery. The robbery alleged in the second count of the

6

When Barrett was decided, it calculated over 30 possible predicate felonies.

See 331 Or at 34 n 2 (apparently including the attempt versions of the predicates).

Cite as 366 Or 136 (2020) 147

indictment was the same robbery that served as a predicate

felony for the attempted aggravated felony murder charge in

the first count.

We emphasize that here, because the outcome would

be different were that not true. If a defendant had been

charged with one crime (e.g., burglary), but also charged

with felony murder based on a different predicate felony (e.g.,

first-degree kidnapping, see ORS 163.115(1)(b)(F) (2011)),

then the two crimes would have different elements, and the

convictions would not merge.

Here, the state indicted petitioner for robbery and

for attempted aggravated felony murder based on the same

robbery. Both crimes were committed against the same

victim and in the same criminal episode. That single rob-

bery must be either completed or attempted for both counts.

It could not simultaneously be both completed and only

attempted.

Because the same factual robbery was involved,

the state’s proof of (attempted aggravated) felony murder

based on that first-degree robbery—whether completed or

attempted—necessarily meant that the state would have

proved every element of first-degree robbery, whether com-

pleted or attempted. As we just noted, proof of felony mur-

der based on a completed first-degree robbery definitionally

would require proof of every element of a completed robbery,

while proof of felony murder based on an attempted first-

degree robbery definitionally would require proof of every

element of an attempted robbery. Regardless whether the

robbery was completed or attempted, there is no element of

that robbery count that would not have been proved in the

felony murder count. Thus, whether the robbery was com-

pleted or attempted, all the elements of robbery were nec-

essarily included within the attempted aggravated felony

murder charge.

Accordingly, we agree with petitioner and reject

superintendent’s argument that the robbery count against

him required proof of an element that the attempted

aggravated felony murder count against him did not.

ORS 161.067(1). Every element of first-degree robbery was

required to be proved as part of the attempted aggravated

148 Martinez v. Cain

felony murder count. If the trial court had applied ORS

161.067(1) properly after proper objection, the trial court

would have merged the guilty verdict on the robbery count

into the guilty verdict on the attempted aggravated felony

murder count.

C. Applicability of This Court’s Decision in Barrett

The Court of Appeals also relied on this court’s deci-

sion in Barrett. See 293 Or App at 435. Barrett is not based

on the distinction argued for by the superintendent (that the

predicate felony required the extra element of completion,

while felony murder required only the element of attempt

to commit the predicate felony). Instead, Barrett held that

aggravated murder was murder plus a single element of

“aggravation,” adding that the predicate felonies of felony

murder were merely alternative methods of proving that ele-

ment of aggravation. Barrett thus indicated that a predicate

felony was not itself an element of aggravated felony murder.

If Barrett was correct on that point, then the two crimes

would not overlap in their elements, and petitioner’s predi-

cate felony of first-degree robbery would not merge into the

guilty verdict for attempted aggravated felony murder. We

turn, then, to Barrett.

The main part of Barrett concerned whether the

trial court should have merged the guilty verdicts on three

counts of aggravated murder, when the defendant had only

killed a single victim. See 331 Or at 29. Interpreting the

nearly identical merger statute, former ORS 161.062(1), this

court held that “defendant’s conduct in intentionally mur-

dering one victim did not violate ‘two or more statutory pro-

visions[.]’ ” 331 Or at 31 (quoting former ORS 161.062(1)). The

different ways in which aggravation could be shown were

not separate elements of the crime of aggravated murder,

but instead alternative ways of proving the single element of

“aggravation.” See id. at 34-36. Because the different forms

of aggravation were not different elements, there was only

one crime of aggravated murder. Id. at 36.

“The aggravating factors constitute no more than differ-

ent theories under which murder becomes subject to the

enhanced penalties for aggravated murder. That defen-

dant’s conduct in intentionally murdering the victim in

Cite as 366 Or 136 (2020) 149

this case was ‘aggravated’ by ‘any,’ i.e., one or more, act sur-

rounding that conduct does not convert that conduct into

more than one separately punishable offense.”

Id.

In so concluding, this court had asserted in a foot-

note that the predicate felonies for felony murder were also

alternative ways to prove the single element of “aggravation”:

“One of the aggravating circumstances listed in ORS

163.095 is that the murder was committed during the

course of one of 12 felonies listed in ORS 163.115(1)(b).”

331 Or at 34 n 2. Relying on that, this court later shifted

from the issue of merger of the three counts of aggravated

murder and turned instead to the different issue of whether

the predicate felony should merge into the aggravated fel-

ony murder count. The court stated in dictum that the trial

court, on remand, should not merge the predicate felony

of first-degree robbery into the aggravated felony murder

count based on that same robbery:

“[I]n light of our conclusion that the various aggravating

circumstances are not ‘elements’ for purposes of former

ORS 161.062(1) but, rather, alternative ways of proving the

element of aggravation, the statutory provisions penalizing

robbery and aggravated murder each involve an element

that the other does not and address separate legislative

concerns.”

Id. at 37 n 4.

We need not revisit Barrett as a whole to conclude

that it was incorrect in its dictum that the predicate felony

would not merge into aggravated felony murder. The errone-

ous premise was the assertion in its second footnote that the

predicate felonies of aggravated felony murder were alter-

native ways to prove “aggravation.” The alternative ways

to prove “aggravation” were listed in ORS 163.095 (2011):

things such as murder for hire (subsection (1)(a) - (b)), the

murder of more than one victim (subsection (1)(d)), or the

murder of a person under the age of 14 (subsection (1)(f)). A

predicate felony was not a method of showing “aggravation,”

but a necessary element of the lesser offense of felony murder

as defined in ORS 163.115(1)(b) (2011). The “aggravating”

150 Martinez v. Cain

factor that elevated felony murder into aggravated murder

was that the defendant had “personally and intentionally

committed the homicide.” ORS 163.095(2)(d) (2011).

For those reasons, we disavow footnotes two and

four of Barrett. The predicate felonies of felony murder are

not alternative ways to prove “aggravation” for aggravated

felony murder. Accordingly, Barrett does not support holding

that ORS 161.067(1) prevents merger of the two counts.

III. CONCLUSION

For the reasons discussed, we conclude that ORS

161.067(1), properly interpreted and applied, would have

required merger of petitioner’s guilty verdicts on first-degree

robbery and attempted aggravated felony murder.

We emphasize again that our holding today only

addresses the legal question of how ORS 161.067(1) should

be interpreted in the context of a charge of felony murder.

This case does not offer any opportunity for us to consider

the underlying question in petitioner’s post-conviction case

whether counsel was, in fact, constitutionally inadequate for

failing to object to petitioner’s sentences. We hold only that

the post-conviction court erred in granting summary judg-

ment for the superintendent based on the holding that, as

a matter of law, the offenses would not merge regardless of

objection.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.