State v. Bighouse

196 P.3d 538, 223 Or. App. 261, 2008 Ore. App. LEXIS 1575

• Court: Court of Appeals of Oregon
• Decided: October 22, 2008
• Docket: C033240CR, C040163CR, C041507CR A126980 (Control) A126981 A126982
• Status: Published

Opinions

ARMSTRONG, J.

Defendant petitions for reconsideration in this case in which we affirmed his convictions without opinion, State v. Bighouse, 217 Or App 428, 175 P3d 1028 (2008). For the reasons below, we allow reconsideration, withdraw our former opinion, and remand for resentencing.

Defendant appeals after being convicted of encouraging child sexual abuse in the second degree, ORS 163.686; identity theft, ORS 165.800 (2003);¹ attempted theft in the second degree, ORS 164.045; criminal possession of a forgery device, ORS 165.032; and attempted manufacture of a controlled substance, former ORS 475.992(l)(b) (2003), renumbered as ORS 475.840(l)(b) (2005).² Defendant waived a jury trial on all counts and was found guilty by the trial court on some of the counts that were alleged in three separate cases. On appeal, defendant makes three assignments of error. One of his assignments is that the trial court erred in imposing consecutive sentences on Counts 1 through 8 in Case No. C041507CR, which involved convictions for the crime of encouraging child sexual abuse, and on Counts 11 through 16 in that case, which involved convictions for the crime of identity theft. In his brief on appeal, defendant argues that the imposition of consecutive sentences on those counts violated his state and federal constitutional rights because a judge, rather than a jury, found the predicate facts that authorized the imposition of consecutive sentences. We originally affirmed without opinion, in part, because we concluded that that assignment of error had not been preserved in the trial court, as required by ORAP 5.45(1).³

In his petition for reconsideration, defendant correctly assumes that we rejected the assignment on preservation grounds. However, he asserts that “the record and the case law [support his] argument that the objection to the imposition of consecutive sentences was adequately preserved for appeal.” Defendant contends, relying on Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), that he told the trial court, both in a sentencing memorandum and orally during the sentencing hearing, that the findings that had to be made to impose consecutive sentences had to be made by a jury rather than by a judge. We grant reconsideration in order to address that argument.

We begin with the sentencing memorandum. The first section is entitled “Blakely/Apprendi Background.” (Boldface and underscore in original.) It recites that “the United States Supreme Court ruled that Washington State’s ‘sentencing guidelines’ are unconstitutional because they allow defendants’ sentences to be increased by judges instead of juries.” The memorandum then quotes from part of the majority opinion in Blakely that emphasizes that the judge’s authority to sentence is derived from the jury’s verdict. The memorandum next asserts:

“Findings authorizing the imposition of any consecutive sentences in effect allow the [c]ourt to impose a longer period of incarceration and should therefore be treated as any other sentencing factor authorizing increased punishment. That is, they should be treated as the constitutional equivalent of an element of an offense. As offense elements, it is necessary that consecutive sentence findings be [(]1) formally [pleaded], (2) prove[d] beyond a reasonable doubt and (3) prove[d] to a jury.

“ORS 137.123 describes generally when a court may sentence consecutively. It applies to all offenses, misdemeanors, felonies, Ballot Measure 11 felonies and aggravated murder sentences. Several factual findings need to be made to justify consecutive sentences under ORS 137.122 [sic]. Pursuant to [Apprendi, 530 US 466]; Ring v. Arizona, 536 US 584, 122 S Ct 2438, 153 L Ed 2d 556 (2002) and [Blakely, 542 US 296], the following findings must be made by a jury:

“1. Did the sentencing offenses occur during a continuous and uninterrupted course of conduct under ORS 137.123(2)?

“2. Did the sentencing offenses occur while the defendant was incarcerated for commission o[f] a previous crime under ORS 137.123(3)?

“3. For sentencing offenses occurring during a continuous and uninterrupted course of conduct, is a particular conviction for conduct which is not merely an incidental violation of a separate statutory provision * * * an indication of a defendant’s willingness to commit more than one criminal offense under ORS 137.123(5)(a)?

“4. For sentencing offenses occurring during a continuous and uninterrupted course of conduct, did the conduct underlying a particular conviction cause or create a risk of causing greater or qualitatively different loss, injury, or harm under ORS 137.123(5)(b)?

“5. For sentencing offenses occurring during a continuous and uninterrupted course of conduct, did the conduct underlying a particular conviction cause or create a risk of causing loss, injury, or harm to a different victim under ORS 137.123(5)(b)?

“In several situations, finding whether an offense is part of the same criminal episode, or similar language, authorizes the court to impose increased punishment under the guidelines. Pursuant to Apprendi/Ring/Blakely, the court cannot impose a sentence based on a finding [that] the offense did or did not occur during the same criminal episode as other sentencing offenses unless that fact was alleged in the accusatory instrument and prove[d] beyond a reasonable doubt to a jury.”

In section II, the memorandum contends that, as to Counts 1 through 10 in Case No. C041507CR, the sentences on the multiple counts “should be run concurrent to each other and concurrent to the remaining counts on this case” (emphasis omitted), for several reasons, including that

“the [s]tate failed to allege in the charging instrument that [any of] these counts involved separate victims. The [s]tate also failed to allege that any of these counts occurred as part of separate acts and/or transactions. The imposition of consecutive prison terms increases the length of the sentence. In order for the [s]tate to overcome the presumption under ORS 137.123(4) of a concurrent sentence, specific facts, [i.e.], different victims, must not only be plead[ed] in the accusatory instrument, but also proved at trial. According [to] the rule in [Apprendi] and in [Blakely], it is the jury’s role to determine whether or not there are different victims or [sic] unless the defendant admits there are different victims. The court cannot take judicial notice of a different victim.”

(Emphasis added.)

In section III, as to Counts 11 through 40 in Case No. C041507CR, the memorandum asserts that those counts “should be run concurrent to each other and concurrent to the remainder of the counts in this case” (emphasis omitted), “[b]ecause the [s]tate did not distinguish who the victims were in the indictment [and thus] * * * did not comply with Apprendi’s rule.”

Defendant’s sentencing memorandum repeatedly argued that a jury, and not a judge, must make predicate findings required by ORS 137.123 to impose consecutive sentences. Although the memorandum advanced additional arguments under Apprendi and Blakely against imposing consecutive sentences, those arguments do not undermine defendant’s main point — that consecutive sentences could not be imposed by the court unless the predicate findings were made by a jury.

During the sentencing hearing, defense counsel confirmed that the trial court had received and read his memorandum of law.

“[DEFENSE COUNSEL]: * * * The court, apparently, is in receipt of my memorandum of law?

“[THE COURT]: Yes. And I’ve read it.”

Defense counsel continued:

“[DEFENSE COUNSEL]: And so because there is no — the separate victims were not [pleaded] in those first 10 counts, nor were they [pleaded] as separate acts and transactions to run any of those counts consecutive. The court, under [Blakely], first has to have them [pleaded] and prove[d], but also the court has to make certain findings and those findings are not — are findings that have to he [pleaded] and provefd] to increase the sentence. The presumptive sentence is a concurrent sentence without any kind of language as to separate act and transaction or separate victims.

«Hi * H* * *

“[DEFENSE COUNSEL]: Counts 11 through 40 are the identity theft counts. None of those have been [pleaded] as separate acts and transactions, nor separate victims, nor have separate victims been alleged in any of those counts and, therefore, under [Blakely\ and [Apprendi], the court cannot run those consecutively.

«H? H« * ❖ *

“[DEFENSE COUNSEL]: As far as the identity theft counts, * * * 11 through 40, * * * [t]hose have not been [pleaded] and provefd as] separate acts and transactions, nor as separate victims.”

In summary, defendant argued that Apprendi and Blakely established that the Sixth Amendment to the United States Constitution required the state to plead in an indictment or information the facts that had to be found for a court to impose consecutive sentences and to prove those facts to a jury unless the defendant waived his or her Sixth Amendment right to a jury trial on those facts. The state disagreed. It contended that the Sixth Amendment does not entitle defendants to have a jury decide the facts that must be found to impose consecutive sentences under Oregon’s sentencing statutes. Hence, in the state’s view, the trial court could make the findings that had to be made under ORS 137.123 to impose consecutive sentences for defendant’s convictions. The trial court agreed with the state’s argument and proceeded to make findings under ORS 137.123 in imposing consecutive sentences on Counts 1 through 8 and 11 through 16.⁴

As it later turned out, defendant was wrong about whether the Sixth Amendment requires the state to plead in an indictment or information the facts that must be found to impose consecutive sentences, see State v. Sawatzky, 339 Or 689, 698, 125 P3d 722 (2005), but he was correct about whether the Sixth Amendment requires the state to prove those facts to a jury unless a defendant waives his right to have a jury decide those facts, see State v. Ice, 343 Or 248, 265-66, 170 P3d 1049 (2007), cert granted,_US_, 128 S Ct 1657 (2008).

Although the trial court imposed the consecutive sentences in this case before the Oregon Supreme Court had decided Ice, defendant relied in his sentencing memorandum on Apprendi and Blakely for the proposition that he had the right under the Sixth Amendment to have a jury find the facts that ORS 137.123 requires be found to impose consecutive sentences. As Ice confirms, defendant was correct. See Ice, 343 Or at 265-66.

The dissent nevertheless concludes that defendant failed to preserve that argument in the trial court because he did not ask the court to empanel a jury to find the facts that had to be found under ORS 137.123 to impose consecutive sentences. 223 Or App at 276-77 (Edmonds, J., dissenting). We reject that proposition.

Defendant was not required to ask the court to empanel a jury to find the predicate facts on which consecutive sentences could be imposed. All that he was required to do, which is what he did in his sentencing memorandum, was to tell the court that the court could not impose consecutive sentences on the basis of facts that had not been found by a jury. See, e.g., State v. Meade, 221 Or App 549, 552, 556-57, 191 P3d 704 (2008) (consecutive sentences overturned on appeal based on argument to trial court equivalent to argument made by defendant, here).

The dissent also asserts that a statement in defendant’s sentencing memorandum — that “the court must determine whether the conduct arose from a continuous and uninterrupted course of conduct” — supports its conclusion that defendant failed to preserve his Sixth Amendment argument against the imposition of consecutive sentences. See 223 Or App at 277 (Edmonds, J., dissenting). That statement simply, and accurately, made the point that the court would have to find facts under ORS 137.123 in order to impose consecutive sentences. The memorandum made clear, however, that, in defendant’s view, Apprendi and Blakely established that the Sixth Amendment required those facts to be found by a jury, not by the court.⁵

In summary, we conclude that defendant preserved his argument that the court could not impose consecutive sentences under ORS 137.123 on the basis of facts found by the court rather than by a jury. We also conclude that, under Ice, the trial court erred in imposing consecutive sentences on Counts 1 through 8 and Counts 11 through 16 based on court rather than jury findings.

Reconsideration allowed; former disposition withdrawn; remanded for resentencing; otherwise affirmed.

1 ORS 165.800 was amended by Oregon Laws 2007, chapter 583, section 1. All references are to the 2003 version of this statute, which was in effect during the period relevant here.

2 Defendant was convicted of multiple offenses in three cases, C040163CR, C033240CR, and C041507CR, and was sentenced in those cases at the same sentencing hearing. In Case No. C040163CR, defendant was convicted of identity theft and attempted theft. In Case No. C033240CR, defendant was convicted of three counts of identity theft and three counts of possession of a forged instrument. In Case No. C041507CR, defendant was convicted of 10 counts of encouraging child sexual abuse and 30 counts of identity theft, as well as other crimes.

3 ORAP 5.45(1) provides that “[n]o matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower eourt[.]”

4 We, too, agreed with the state when we decided in State v. Tanner, 210 Or App 70, 85-88, 150 P3d 31 (2006), vac’d and rent’d, 343 Or 554 (2007), that the Sixth Amendment does not entitle defendants to have a jury decide the facts that must be found to impose consecutive sentences under ORS 137.123.

5 We note that, although defendant waived his right to a jury trial, that waiver did not apply to his right to have a jury decide the predicate facts on which to impose consecutive sentences. See, e.g., Meade, 221 Or App at 553-57.