State v. Fuerte-Coria
This text of 100 P.3d 773 (State v. Fuerte-Coria) 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.
Opinion
Defendant, who was convicted of multiple crimes “arising out of a continuous and uninterrupted course of conduct,” ORS 137.123(4), appeals, raising two challenges to sentencing: (1) the trial court erred in imposing mandatory sentences for certain crimes pursuant to ORS 137.700(2)(a) (Ballot Measure 11 (1994)), because that statute is facially unconstitutional; and (2) the court’s imposition of consecutive sentences for certain offenses, pursuant to ORS 137.123(5)(a), 1 was unconstitutional under the reasoning of Blakely v. Washington, 542 US_, 124 S Ct 2531, 159 L Ed 2d 403 (2004). We reject without discussion defendant’s first argument. We further conclude, as explained below, that defendant’s second, Blakely-based challenge to the imposition of consecutive sentences was not preserved and is not reviewable as “error of law apparent on the face of the record.” ORAP 5.45(1). Accordingly, we affirm.
Defendant was convicted on single counts of robbery in the first degree, ORS 164.415; robbery in the second degree, ORS 164.405; kidnapping in the first degree, ORS 163.235; assault in the second degree, ORS 163.175; and unauthorized use of a vehicle, ORS 164.135, all of which arose out of a caijacking episode. The court directed, pursuant to ORS 137.123(5)(a), that the sentence for first-degree *173 kidnapping be served consecutively to the sentence for first-degree robbery, because the kidnapping “was not an incidental violation, but an indication of defendant’s willingness to commit more than one criminal offense.” (Emphasis in original.) The court further directed, also pursuant to ORS 137.123(5)(a), that defendant serve 48 months of his 70-month sentence for second-degree assault consecutively to the sentence for first-degree kidnapping. Defendant did not raise any constitutionally based objection in the trial court to the imposition of consecutive sentences.
On appeal, defendant argues for the first time that the imposition of consecutive sentences, based on judicial findings under ORS 137.123(5)(a), was unconstitutional under the principles expressed in Blakely and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). Defendant acknowledges that he did not raise and preserve that contention before the trial court but asserts, nevertheless, that we should treat that matter as an “error of law apparent on the face of the record,” ORAP 5.45(1), and exercise our discretion to correct that asserted error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991) (describing principles guiding court’s discretion to correct error apparent on the face of the record).
ORAP 5.45(1) provides that no matter claimed as error will be considered on appeal unless it was preserved in the lower court, except that “the appellate court may consider an error of law apparent on the face of the record.” An error of law is apparent if “the legal point is obvious, not reasonably in dispute” and if the reviewing court need not look beyond the record or choose from competing inferences to find the error. State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Here, the alleged unpreserved error is not reviewable under ORAP 5.45(1) because the legal point is not “obvious”; indeed it is “reasonably in dispute.” Id.
As noted, defendant’s contention is based on the holdings of Blakely and Apprendi. In Apprendi, the Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 US at 490. In Blakely, the *174 Court ruled that “exceptional” sentences based on judicial findings of fact required to impose a sentence outside of the presumptive range established by state sentencing guidelines ran afoul of the rule announced in Apprendi. Blakely, 542 US at _ , 124 S Ct at 2537-38. Accord State v. Sawatzky, 195 Or App 159, 172, 96 P3d 1288 (2004) (holding that departure sentences under the Oregon sentencing guidelines are similarly flawed under the Blakely rationale).
Neither of those cases, however, involved consecutive sentencing. Indeed, defendant identifies no reported decision in which any court has extended Apprendi’s or Blakely’s reasoning to invalidate a consecutive sentence. To the contrary, as the state points out, several courts have rejected the proposition that defendant now urges. 2 In all events, given that Apprendi and Blakely addressed the imposition of single sentences that exceeded the statutorily prescribed maximum for particular crimes, and because making a sentence for one crime consecutive to a sentence for a different crime does not implicate the “statutory maximum” for either crime in any obvious way, any extension of Apprendi and Blakely to consecutive sentencing is, at best, “reasonably in dispute.” Brown, 310 Or at 355. Accord State v. Riley, 195 Or App 377, 381, 97 P3d 1269 (2004) (rejecting unpreserved argument about the effect of Blakely on Oregon sentencing, as no error was apparent because “it is far indeed from ‘obvious’ [whether] a juvenile adjudication” maybe used as a later sentence enhancement factor, under the Court’s rationale in Blakely and Apprendi).
Affirmed.
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Cite This Page — Counsel Stack
100 P.3d 773, 196 Or. App. 170, 2004 Ore. App. LEXIS 1462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fuerte-coria-orctapp-2004.