State v. Cervantes-Oropeza

170 P.3d 1114, 215 Or. App. 518, 2007 Ore. App. LEXIS 1551
CourtCourt of Appeals of Oregon
DecidedOctober 31, 2007
DocketC050698CR; A128379
StatusPublished

This text of 170 P.3d 1114 (State v. Cervantes-Oropeza) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cervantes-Oropeza, 170 P.3d 1114, 215 Or. App. 518, 2007 Ore. App. LEXIS 1551 (Or. Ct. App. 2007).

Opinion

BREWER, C. J.

Defendant appeals his conviction, after a guilty plea, for felony driving under the influence of intoxicants. ORS 813.010(5). Defendant argues that the sentencing court erred by utilizing three of his six prior misdemeanor DUII convictions to increase his criminal history score because, he asserts, the challenged convictions were constitutionally invalid in that the state failed to prove that he executed written jury waivers in those cases.1 We affirm.

In February 2005, defendant was arrested for DUII. Defendant pleaded guilty and, at sentencing, the state presented evidence that defendant previously had been convicted of DUII in 1997 in three Marion County Circuit Court cases, once in 1997 in Salem Municipal Court and twice in 1999 in Washington County Circuit Court. The evidence showed that defendant pleaded guilty to the DUII charges in the three Marion County Circuit Court cases, but there was no evidence that defendant executed written jury waivers in those cases.

Under ORS 813.012(2), the sentencing court was required to count every two of defendant’s previous misdemeanor DUII convictions as one person felony in calculating his criminal history score.2 Defendant argued that, in the absence of evidence that he executed written jury waivers in the three Marion County Circuit Court cases, the sentencing [521]*521court could not count those convictions to increase his criminal history score. The sentencing court rejected defendant’s argument and, relying in part on the three Marion County Circuit Court convictions, established that defendant’s criminal history score placed him in column A. The court sentenced him to a 27-month presumptive prison term. Defendant appeals from the ensuing judgment.

Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution guarantee the right to a jury trial to persons accused of crimes. Defendant asserts that use of the three Marion County convictions to increase his criminal history score violated Article I, section 11, which provides:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.”

(Emphasis added.) Defendant further relies on this court’s decision in State v. Cassada, 58 Or App 84, 647 P2d 938, modified on recons, 59 Or App 482, 651 P2d 171 (1982), where we held that “[i]t was error to enhance [the] defendant’s conviction on the basis of his prior conviction,” id. at 88, when “[t]he record contains no written waiver of [the] defendant’s right to a jury trial.” Id. at 87-88. In Cassada, we distinguished cases involving a waiver of the right to counsel, observing that

[522]*522“[wjhile the initial burden may be on a defendant with respect to a waiver of counsel, * * * that is not true with respect to a waiver of a jury trial. The Oregon [C] onstitution does not require that a waiver of counsel be in writing, but it does require a written waiver of the right to trial by jury in a criminal case. Art. I, § 11, Oregon Constitution.”

Id. (some citations omitted).

The state makes multiple responses, including that (1) the Article I, section 11, written jury waiver requirement does not apply to guilty pleas; (2) defendant is not entitled to collaterally attack the validity of his Marion County convictions; and (3) even if defendant could collaterally attack those convictions, defendant had the burden to show that the convictions were invalid, and he failed to meet that burden. Because, as we now explain, the state’s first argument is correct, we do not address its remaining arguments.3

We first address defendant’s reliance on Cassada. Defendant acknowledges that that case is procedurally distinguishable from the circumstances here, in that the defendant in Cassada was convicted after a trial to the court; he did not plead guilty. Defendant argues, however, that the distinction is insignificant because, he urges, for purposes of a jury waiver, convictions based on guilty pleas and bench trials are functionally interchangeable. As defendant sees it, for purposes of Article I, section 11, in either circumstance the defendant is “electing] * * * to be tried by the judge of the court alone.” According to defendant, “[t]he only difference between them is that, in the guilty plea case, [the] defendant also provides the court with admissions of his guilt, which the court may choose to find dispositive if, among other things, it finds a reasonable factual basis for doing so.” Defendant also relies on this court’s decisions in State v. Wigglesworth, 186 [523]*523Or App 374, 378, 63 P3d 1185 (2003), and State v. Fry, 180 Or App 237, 239 n 1, 42 P3d 369 (2002), for his proposition that “Oregon courts have always interpreted Article I, section 11, to require written waiver of a jury trial in guilty plea cases no less than any other.”

The validity of defendant’s thesis hinges on the premise that, under Article I, section 11, a guilty plea proceeding is tantamount to a bench trial. In analyzing the meaning of a provision of the Oregon Constitution, we look to the specific wording of the provision, the case law surrounding it, and the historical circumstances that led to its enactment. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). We begin with the text of Article I, section 11. We assume that the framers of a provision and the people who caused it to become part of our constitution intended ordinary meanings for the words in the provision. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 560, 871 P2d 106 (1994).

As noted, the provision on which defendant relies makes no explicit reference to guilty pleas; instead, it refers to the defendant being “tried by the judge of the court alone * * *.” It is axiomatic that a guilty plea proceeding is not a trial but, rather, requires a waiver of trial, because a guilty plea obviates the need for the adjudication of any fact in the guilt phase of a criminal case. A trial involves the adjudication of facts. See Or Const.

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Related

Outdoor Media Dimensions Inc. v. State
20 P.3d 180 (Oregon Supreme Court, 2001)
State v. Cassada
647 P.2d 938 (Court of Appeals of Oregon, 1982)
State v. Lemon
986 P.2d 705 (Court of Appeals of Oregon, 1999)
State v. Wagner
752 P.2d 1136 (Oregon Supreme Court, 1988)
Ecumenical Ministries v. Oregon State Lottery Commission
871 P.2d 106 (Oregon Supreme Court, 1994)
Lyons v. Pearce
694 P.2d 978 (Oregon Supreme Court, 1985)
Priest v. Pearce
840 P.2d 65 (Oregon Supreme Court, 1992)
State v. Wigglesworth
63 P.3d 1185 (Court of Appeals of Oregon, 2003)
State v. Fry
42 P.3d 369 (Court of Appeals of Oregon, 2002)
State v. Cassada
651 P.2d 171 (Court of Appeals of Oregon, 1982)

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Bluebook (online)
170 P.3d 1114, 215 Or. App. 518, 2007 Ore. App. LEXIS 1551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cervantes-oropeza-orctapp-2007.