No. 820 September 2, 2026 591
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DERRICK DEAN COFFELT,
Defendant-Appellant.
Marion County Circuit Court
19CR56101; A184411
J. Channing Bennett, Judge.
Submitted April 7, 2026.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Interim Deputy Attorney General, and Doug M. Petrina,
Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Egan, Judge.*
AOYAGI, P. J.
Remanded for resentencing; otherwise affirmed.
* Lagesen, Chief Judge, vice Pagán, Judge.
592 State v. Coffelt
AOYAGI, P. J.
This case is before us for a second time. Defendant
was convicted of two counts of strangulation constituting
domestic violence (Counts 2 and 4) and one count each of
fourth-degree assault constituting domestic violence (Count
3), second-degree assault constituting domestic violence
(Count 6), and coercion (Count 8). Based on our decision in
State v. Coffelt, 326 Or App 654 (nonprecedential memorandum opinion), rev den, 371 Or 715 (2023) (Coffelt I), he was resentenced. Defendant appeals, raising four assignments
of error. He contends that the sentencing court erred by
(1) imposing a consecutive sentence on Count 6; (2) imposing a consecutive sentence on Count 8; (3) reconstituting his criminal history scores for Counts 6 and 8; and (4) failing to employ the shift-to-I rule on Counts 6 and 8. All four claims of error turn largely on whether some or all of defendant’s crimes were part of the “same continuous and uninterrupted course of conduct” under ORS 137.123(2). As explained below, we conclude
that the sentencing court erred only with respect to Count 8, and we remand for resentencing based on that error.
Background. After an earlier argument, K awoke to
find defendant, her husband, strangling her. They grappled
and ended up in the hallway. Defendant strangled K again.
That conduct was the basis for Counts 2, 3, and 4. As stated in Coffelt I, those three crimes occurred in the same criminal episode. 326 Or App at 660-61.
At least six hours later, defendant was asleep on the
couch with K’s phone in his pocket. K tried unsuccessfully
to retrieve her phone without waking him. Defendant was
upset and pushed K into the corner of a wooden record table. That conduct was the basis for Count 6.
K immediately went upstairs and called 9-1-1. The
police arrived a few minutes later. When he realized that
the police were outside, defendant confronted K about calling 9-1-1. The police saw defendant and K talking as they
approached the house. Defendant told K to go upstairs and
lie in the bedroom while he talked to the police, which K
understood as an implicit threat. That conduct was the basis for Count 8.
Cite as 352 Or App 591 (2026) 593
At resentencing, defendant argued that all his convictions arose out of the same continuous and uninterrupted
course of conduct and therefore had to be sentenced concurrently, unless the court made the findings necessary for consecutive sentencing under ORS 137.123(5). Defendant further argued that, if the court imposed consecutive sentences on Counts 6 or 8, it had to apply the shift-to-I rule. The state disagreed. It argued that there were three distinct criminal episodes—the first involving Counts 2, 3, and 4, the second
being Count 6, and the third being Count 8—and took the
position that the court could impose consecutive sentences
on Counts 6 and 8, could reconstitute defendant’s criminal
history scores for those counts, and did not need to apply the shift-to-I rule. The sentencing court agreed with the state
that the crimes took place in three separate criminal episodes, not as part of a continuous and uninterrupted course
of conduct. It noted that defendant had “time to contemplate and reflect before committing the next act,” “time to
reconsider, maybe cool for a second,” and the opportunity to “calm[ ] down.” The court imposed consecutive sentences on
Counts 6 and 8, reconstituted defendant’s criminal history
score, and did not apply the shift-to-I rule.
Analysis. Under ORS 137.123(4), a court must
impose concurrent sentences “[w]hen a defendant has been
found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct,” unless
the court makes special findings under subsection (5), which provides:
“(5) 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 594 State v. Coffelt
victim or caused or created a risk of causing loss, injury or
harm to a different victim than was caused or threatened
by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”
By contrast, when crimes “do not arise from the same continuous and uninterrupted course of conduct,” the court may
impose either concurrent or consecutive sentences. ORS
137.123(2).
“We review a trial court’s decision to impose consecutive sentences for errors of law and to determine whether
the trial court’s predicate factual findings are supported
by any evidence in the record.” State v. Provancha, 293 Or
App 169, 173, 428 P3d 916 (2018), rev den, 364 Or 407 (2019) (internal quotation marks omitted).
To begin, defendant argues that the trial court
applied the wrong legal test in deciding whether to impose
consecutive sentences. In defendant’s view, the court’s focus on his opportunity to reflect, contemplate, or reconsider
between crimes shows that it was using the “sufficient pause” test for merger under ORS 161.067(3). We are unpersuaded.
The court’s task here was to determine whether defendant’s
criminal conduct was “continuous and uninterrupted”
under ORS 137.123. Defendant is correct that that differs
from deciding whether there was a sufficient pause between
criminal acts to prevent merger under ORS 161.067(3). But
it does not follow that any reference to time to reflect or
reconsider alone establishes use of the wrong legal test. We have recognized, at least implicitly, that time to reflect and change course can be relevant to the “continuous and uninterrupted” analysis. See State v. Wolfgang, 278 Or App 781,
792, 379 P3d 759, rev den, 360 Or 465 (2016) (affirming the
trial court’s ruling that the defendant’s conduct was not continuous and uninterrupted, which the court explained, at
least in part, by observing that he had time between crimes
to “reflect, reform a state of mind and intent”).
Turning to the merits, we conclude that the trial
court did not err in determining that Counts 6 and 8 were
not part of the same continuous and uninterrupted course of
conduct as Counts 2, 3, and 4. There was a break of at least six hours between the conduct underlying Counts 2, 3, and
Cite as 352 Or App 591 (2026) 595
4 and the conduct underlying Counts 6 and 8. See Wolfgang,
278 Or App at 792 (affirming a finding that two assaults
separated by, at most, a 15-minute break were not a continuous and uninterrupted course of conduct). And, during
that time, defendant left for a hotel, returned to the house, and slept on the couch for hours, rather than engaging in
acts in furtherance of a single criminal objective. See State v. Tooley, 265 Or App 30, 43, 333 P3d 348, rev den, 356 Or
575 (2014) (two murders committed 12 hours apart could be
found to be part of a continuous and uninterrupted course of conduct, where the defendant spent the 12 hours acting “in
service of his overarching objective” to kill both victims and acted as quickly “as practicably possible” (emphases omitted)). That resolves defendant’s first assignment of error and the part of his second and third assignments of error pertaining to Count 6.
The more difficult question is whether Counts 6 and
8 involve a continuous and uninterrupted course of conduct,
albeit separate from the conduct six or more hours earlier,
such that part of defendant’s second assignment of error is
well-taken. Those two crimes occurred within minutes of
each other, with the only intervening events being K going
upstairs to call 9-1-1 and the police arriving a few minutes later.
The parties agree that crimes committed in a single “criminal episode” as defined in ORS 131.505(4) are necessarily part of a “continuous and uninterrupted course of
conduct” for purposes of ORS 137.123. That is because, by
definition, a “criminal episode” requires “continuous and
uninterrupted conduct.” ORS 131.505(4) (defining “criminal
episode” to mean “continuous and uninterrupted conduct
that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective”). Here, defendant argues that Counts 6 and 8 were committed in a single
criminal episode and therefore were necessarily part of a
continuous and uninterrupted course of conduct. Defendant
points out that the trial court itself described the act of
coercion as reflecting the same desire to exercise “power
and control” over K as defendant’s physical acts of domestic 596 State v. Coffelt
violence, as relevant to the “single criminal objective” aspect of the definition of “criminal episode.”1
We ultimately conclude that the acts underlying
Counts 6 and 8 were part of a single criminal episode and
so should have been treated as a continuous and uninterrupted course of conduct for sentencing purposes. The two
crimes were closely connected in time, only a few minutes
apart. They occurred in the same place, the downstairs
of the house. And both were directed toward the criminal
objective of controlling K, as the trial court recognized,
even if the coercion was also motivated by a desire to avoid getting caught. See State v. Witherspoon, 250 Or App 316,
322-25, 280 P3d 1004 (2012) (discussing “single criminal
objective”). “[T]he concept of a single criminal objective is not narrow” and is satisfied when two criminal acts “reasonably can be seen to be directed toward a single overarching
criminal objective.” State v. Burns, 259 Or App 410, 422, 314 P3d 288 (2013) (internal quotation marks omitted). Here,
Counts 6 and 8 are reasonably viewed as directed toward a
single overarching criminal objective of controlling K. That defendant also sought to avoid apprehension by police “does
not mean that crimes committed while attempting to avoid
apprehension are part of a separate criminal episode where,
as here, a defendant’s initial criminal objective continues
during the course of all events.” State v. Taylor, 293 Or App 460, 469, 428 P3d 939 (2018) (internal quotation marks
omitted).
The sentencing court therefore erred in imposing
the sentence on Count 8 consecutively to the sentence on
Count 6 based on those crimes not being part of a continuous and uninterrupted course of conduct and thus subject
to ORS 137.123(2). Because Counts 6 and 8 were part of a
continuous and uninterrupted course of conduct, the court
could impose the sentence on Count 8 consecutively to that
1
We note that it appears to be an open question whether “continuous and uninterrupted course of conduct” in ORS 137.123 is synonymous with “criminal episode” as defined in ORS 131.505(4) or, conversely, whether the latter is a subset of the former. See Wolfgang, 278 Or App at 792 (leaving that issue open). That is, it is an open question whether the “single criminal objective” requirement in ORS 131.505(4) is separate from or part of the “continuous and uninterrupted” requirement. Defendant assumes that they are synonymous, and it does not affect the result here, so we proceed on that assumption.
Cite as 352 Or App 591 (2026) 597
on Count 6 only if it made one of the findings described in
ORS 137.123(5). We do not understand the court to have
made any such findings—and express no opinion on whether
it could. Accordingly, we remand for resentencing.
Our resolution of defendant’s first and second assignments of error effectively disposes of his third and fourth
assignments of errors. With respect to Count 6, the sentencing court did not err by reconstituting defendant’s criminal history and not applying the shift-to-I rule, because Count 6 is not part of the same criminal episode as Counts 2, 3, and 4. With respect to Count 8, that count will be resentenced in accordance with this opinion, obviating the need to address
how it was previously sentenced.
Remanded for resentencing; otherwise affirmed.