Martinez v. Cain

BREWER, S. J., dissenting.

The majority understandably adheres to State v. Barrett , 331 Or. 27, 10 P.3d 901 (2000), and State v. Wilson , 216 Or. App. 226, 173 P.3d 150 (2007), rev. den. , 334 Or. 391, 181 P.3d 770 (2008), adh'd to as modified on recons. , 228 Or. App. 365, 208 P.3d 523 (2009), in concluding that petitioner's convictions do not merge. However, in my view, the courts in Barrett and Wilson departed from the unambiguous text of the "anti-merger" statute, ORS 161.067(1), and the aggravated murder statute, ORS 163.095, in (1) mistakenly characterizing the elements of aggravated…