State v. Jacob

145 P.3d 212, 208 Or. App. 62, 2006 Ore. App. LEXIS 1467

• Court: Court of Appeals of Oregon
• Decided: September 27, 2006
• Docket: 0202-31253, A119971
• Status: Published

Opinions

EDMONDS, J.

The state appeals after the trial court refused to impose a 30-year gun minimum sentence pursuant to ORS 161.610(4)(c) (2001), amended by Or Laws 2005, ch 407, § 1. For the reasons that follow, we remand for resentencing.

The facts that frame the issue on appeal are as follows. In late 1982, defendant was convicted by a jury of robbery in the first degree. In early 1983, pursuant to the applicable version of ORS 161.610, the trial court held an evidentiary hearing without a jury and found that defendant had used or threatened to use a firearm in the commission of the crime for which he had been convicted.¹ Based on that finding, the trial court imposed a five-year gun minimum sentence, as mandated by ORS 161.610 (1981). However, just months earlier, the Oregon Supreme Court had held unconstitutional the portions of ORS 161.610 (1981) under which defendant was sentenced. State v. Wedge, 293 Or 598, 652 P2d 773 (1982). In Wedge, the court held that, under ORS 161.610 (1981), the use or threatened use of a firearm was in fact a “finding that goes to the criminal act for which [the] defendant is punished,” 293 Or at 607, and, therefore, the finding of that fact by the sentencing court violated the defendant’s right to trial by jury under Article I, section 11, of the Oregon Constitution. Id. at 608. There is no indication in the record before us that defendant raised a similar issue in connection with his 1983 conviction and sentence,² and defendant did not appeal or seek post-conviction relief regarding his conviction or the gun minimum sentence imposed for that conviction.

In 1991, defendant was convicted again of robbery in the first degree with a firearm, as well as attempted assault in the first degree with a firearm. At the time of sentencing on those charges, the trial court imposed a 10-year gun minimum sentence pursuant to the version of ORS 161.610 in effect at that time.³ There is no suggestion in the record before us that defendant raised an issue about the lawfulness of his 1983 gun minimum sentence during the 1991 proceedings.

In 2002, defendant was charged with two counts of robbery in the first degree with a firearm. He was found guilty of those charges in a stipulated facts trial. At sentencing, the state requested that defendant receive a 30-year gun minimum sentence pursuant to ORS 161.610(4)(c) (2001). Defendant objected, arguing that his 1983 gun minimum sentence was unconstitutional under Wedge and could not serve as a predicate offense under the progressive sentencing scheme in ORS 161.610 (2001). The trial court agreed with defendant and sentenced him to a 10-year gun minimum sentence. The state’s appeal followed.

At the time that defendant was sentenced in this case in 2002, ORS 161.610 (2001) provided:

“(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:

“(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years * * *

“(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years * * *.

“(c) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years.”

On appeal, the state argues:

“[T]he trial court had no authority to entertain defendant’s collateral challenge to his previous sentences. Under ORS 138.540(1), direct appellate review and post conviction proceedings generally provide the exclusive means for challenging a criminal sentence’s ‘lawfulness.’ ORS 138.540(1) thus precluded the trial court from assessing the constitutionality of defendant’s earlier sentences. Nothing in ORS 161.610, or in any other statutory provision, supports a contrary conclusion.”

Defendant counters, that

“[t]he gun minimum statute conditions increased punishment on the imposition of previous gun minimum sentences. A defendant is eligible for a 30-year gun minimum sentence if he has previously served a 10-year gun minimum sentence; a defendant is eligible for a 10-year gun minimum sentence if he has previously served a five-year gun minimum sentence. If at any point, a sentencing court errs by unlawfully imposing a gun minimum sentence, then the use of that sentence as a predicate for imposing increased punishment both compounds the error and violates defendant’s state constitutional right to a jury trial anew.”

In essence, defendant argues that the 1983 conviction and sentence cannot be used to enhance his current sentence, because the 1983 sentence was constitutionally infirm.

The issue before us is whether ORS 161.610 (2001) permits the kind of challenge that defendant makes — i.e., a challenge to the validity of the underlying conviction and sentences that establish the predicate offenses for his enhanced sentence. To resolve that question, we follow the methodology set forth in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), in an attempt to discern the legislature’s intent. Under that methodology, we first examine the text and the context of ORS 161.610 (2001); if the legislature’s intent is not evident at the first level of construction, we turn to the legislative history of the statute and, if necessary, resort to other maxims of construction. Id.

The text of ORS 161.610 (2001), set forth above, does not expressly require the state to prove that the prior convictions and sentences used as predicates for the imposition of an enhanced sentence are constitutionally valid. Indeed, the legislature easily could have inserted the word “lawful” or “valid” before the word “conviction” or the word “imprisonment” in the statute, had it intended that result. Nor does the statute expressly authorize or otherwise provide a mechanism for a defendant to make such a challenge to the validity of those predicate convictions and sentences.

Although the text of ORS 161.610 (2001) is silent on the issue of challenges to the validity of predicate offenses, the broader context of ORS 161.610 (2001) — specifically those statutes that govern challenges to invalid convictions or sentences — precludes the construction of the statute urged by defendant. For example, ORS chapter 138 provides for direct appeal of and for post-conviction relief from unconstitutional sentences. Both of those remedies were available to defendant for the purpose of challenging the procedure by which his 1983 sentence was imposed. Indeed, the legislature declared in ORS 138.540(1) that post-conviction relief “shall be the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it is based.” (Emphasis added.) Thus, to construe the legislature’s silence in ORS 161.610 (2001) as somehow authorizing a challenge to the constitutionality of his 1983 sentence would be inconsistent with the legislature’s expressed intent that, in the absence of direct appeal, post-conviction relief is the exclusive remedy for challenging the validity of a constitutionally infirm sentence.

Furthermore, the broader historical context of ORS 161.610 (2001) provides that, once final judgment in a criminal case is entered, its validity and regularity are presumed. Capos v. Clatsop County, 144 Or 510, 525, 25 P2d 903 (1933); see also State v. Young, 122 Or 257, 263-64, 257 P 806 (1927) (holding that, unless a determination by a court in a criminal case is directly attacked, it remains the determination of the court, whether decided rightly or wrongly). Again, we decline to interpret the legislature’s silence on that issue as a departure from well-established principles of criminal law regarding the finality and conclusiveness of judgments.⁴ Rather, we conclude that, when ORS 161.610 (2001) is read in the context of ORS chapter 138 and the established principle that judgments in criminal cases are presumed valid, it is clear that the legislature did not intend to allow a challenge to predicate convictions in subsequent sentence enhancement proceedings under ORS 161.610 (2001).

Our reasoning is consistent with two recent Oregon Supreme Court cases interpreting different statutory schemes involving enhancement of offenses, State v. Probst, 339 Or 612, 124 P3d 1237 (2005), and State v. Sims, 335 Or 269, 66 P3d 472 (2003). In Probst, the defendant attacked the constitutional validity of a predicate conviction for misdemeanor driving under the influence of intoxicants (DUII) after being charged with felony DUII. The felony DUII statute, ORS 813.010(5), makes the offense of DUII a felony if the person has been convicted previously of the same crime three times in the preceding 10 years. The defendant in Probst argued that, under the governing statutory scheme, the state had the burden of persuasion to demonstrate that the predicate convictions were constitutionally valid. The defendant relied chiefly on the provisions of ORS 813.328. That statute requires that a defendant give notice of the intent to challenge the validity of the prior convictions at least seven days before trial and that “[t]he validity of the prior convictions shall be determined prior to trial by the court.” Based on ORS 813.328, the defendant argued that, because the validity of the prior conviction had been made an element of felony DUII, the state had the burden of persuasion as it does on all elements of a criminal offense.

On appeal, the Supreme Court rejected that argument. It began its analysis by observing that “[c]ertain statutes touch on the subject of using prior convictions for DUII to enhance the possible sentence in a later case, but none suggests that the legislature has placed any burden on the state to prove the validity of those convictions.” Probst, 339 Or at 624. It then turned to the language of ORS 813.328 and reasoned from the wording in that statute that it was intended not to be a substantive statute but a procedural statute that prescribes when and how a defendant’s challenge to the validity of such a conviction is to be determined, if a defendant chooses to make such a challenge. The court concluded, “We now hold specifically that, in prosecutions for felony DUII, the existence of the predicate convictions is an element of the felony charge that the state must prove beyond a reasonable doubt, but the validity of the predicate convictions is not an element.” Id. at 625 (emphasis in original).

ORS 161.610 (2001) resembles ORS 813.010(5) in that it relies on predicate convictions as the basis for enhanced punishment. Like ORS 813.010(5), ORS 161.610 (2001) does not suggest that the validity of prior convictions is an element that the state must prove. However, in determining whether such a requirement otherwise was intended by the legislature, the Probst court found evidence of that intention in ORS 813.328. That statute provided by its express terms that the prior predicate convictions could be challenged through a pretrial process. The availability of that statutory procedure led the court to conclude that an uncounseled conviction could be challenged under ORS 813.328. 339 Or at 627.

In contrast to Probst, the court in Sims found no indication that the legislature intended that a challenge to a predicate conviction could be made. The defendant in Sims was convicted of felony driving while revoked. The issue was whether an underlying habitual traffic offender order, a predicate to the felony driving while revoked conviction, was susceptible to challenge in the subsequent proceeding. Seeking to ascertain the legislature’s intention in that regard, the court observed that the statute required the state to prove only that the relevant agency had revoked the defendant’s driving privileges based on his habitual traffic offender status and that he drove a motor vehicle when the revocation order was in effect. The court concluded that “[a] criminal defendant’s ability to attack collaterally the validity of an underlying suspension or revocation order must arise from the legislature’s intent to permit such an attack” and rejected the defendant’s challenge in the absence of any statute authorizing such an action. 335 Or at 275.

This case is like Sims and unlike Probst. In each case, the existence of one or more predicate convictions or sentences converts the instant offense into, in effect, an enhanced offense. See ORS 161.610 (2001); Wedge, 293 Or at 608; see also Probst, 339 Or at 625; Sims, 335 Or at 273. And, in each case, the legislature, in defining the enhanced offense, did not make the “validity” of the predicate convictions an element of the enhanced offense. However, in the statute at issue in Probst, the legislature specifically provided a procedure for challenging the validity of the predicate convictions and sentences. It did not do so in the statute at issue in Sims or in ORS 161.610 (2001). Mindful of the principle that this court is not authorized to insert an element into an offense or a procedure that the legislature has omitted, see ORS 174.010, and because we are unable to discern any language in ORS 161.610 (2001) that permits a defendant to challenge the constitutional validity of the predicate convictions required by subsection (4), we are left with the conclusion that the legislature intended defendants to have previously obtained relief on direct appeal or through post-conviction relief from any prior unconstitutional sentences. Defendant’s failure to resort to either of those remedies leaves his 1983 conviction and sentence in existence in the record as a legally cognizable judgment of a conviction and sentence for a felony having as an element the use or threatened use of a firearm. Consequently, the 1983 conviction and sentence, combined with his 1991 conviction and sentence, subject him to enhanced punishment under ORS 161.610(4)(b) and, ultimately, ORS 161.610(4)(c).

The dissent advances a slightly different argument from that made by defendant and adopted by the trial court, and would affirm the trial court on a “right for the wrong reason” basis.⁵ Rather than focusing on the validity of the 1983 conviction, the dissent reasons that the 1983 conviction— valid or not — cannot serve as a predicate conviction for purposes of enhancement under ORS 161.610 (2001). The dissent focuses on the 1982 charging instrument against defendant — an instrument that did not allege as an element of the underlying crime the use or threatened use of a firearm. According to the dissent, because defendant was charged and convicted by a jury under ORS 164.415(l)(a) (relating to being “armed” with a firearm) and not ORS 164.415(l)(b) (relating to using or threatening to use a firearm), the felon[y] for which defendant was convicted in 1983 was not “a felony having as an element the defendant’s use or threatened use of a firearm in the commission of the crime.” 208 Or App at 96-97 (Breithaupt, J. pro tempore, dissenting). It follows from the dissent’s premise that, at most, defendant could be sentenced in 2002 to a 10-year gun minimum sentence under ORS 161.610(4)(b) (2001).

The dissent’s focus on the 1982 charging instrument is problematic for several reasons. First, defendant’s 1991 gun minimum sentence — which is predicated on the 1983 conviction and sentence — is a final adjudication for all purposes; the dissent’s reasoning necessarily undermines the conclusiveness and finality of the 1991 judgment. Second, the dissent’s argument based on the 1982 charging instrument simply is not tenable when one examines the text, context, and legislative history of the statute. As noted above, the plain language of ORS 161.610(4) (2001) provides the “minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm * * *.” “Such felonies,” as they are described in paragraphs (a) through (c) in ORS 161.610(4), are the predicates for enhanced sentences under the statute. Contrary to the dissent’s premise, there is no indication that, by amending ORS 161.610 in 1985, the legislature intended to redefine the universe of crimes that constituted “felonies having as an element the defendant’s use or threatened use of a firearm”; rather, the historical context and legislative history underlying the 1985 amendments to ORS 161.610 reveal that the legislature intended to redefine who (a jury rather than the court) must find that particular element.

As noted above, defendant was sentenced under ORS 161.610 (1981) after Wedge had been decided, but before the legislature amended the statute in light of that decision. The dissent acknowledges that the statute was amended in response to Wedge, but concludes that “the statutory text indicates that sentences imposed under the pre-1985 version of ORS 161.610 and that were based on a judicial finding, and not an admission or jury finding, of use or threatened use of a firearm, are not to be counted for purposes of sentencing under the post-1985 version of the statute.” 208 Or App at 88 (Breithaupt, J. pro tempore, dissenting). Respectfully, the dissent ignores the significance of Wedge and the nature of the legislature’s subsequent amendment to ORS 161.610.

In Wedge, the defendant was charged and convicted by jury of two counts of first-degree robbery, among other offenses. The indictments were worded in such a way that a jury could have found that the defendant used either a knife or a firearm in the commission of the offenses, and the defendant did not admit that he used a firearm. Thereafter, the trial court determined, as part of the sentencing hearing, that, in fact, the defendant had used or threatened to use a firearm in the commission of the offenses for which he had been convicted. The trial court therefore imposed a minimum sentence of five years. The defendant appealed, arguing that the finding by the court rather than a jury that he had used or threatened to use a firearm deprived him of his right to a jury trial on that issue under Article I, section 11, of the Oregon Constitution.

The Supreme Court hinged its analysis on the proposition that “facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing judge.” 293 Or at 607 (citing State v. Quinn, 290 Or 383, 405-06, 623 P2d 630 (1981)). The “use or threatened use of a firearm,” the court concluded, was in fact an element of the crime rather than a characterization of the defendant:

“Although the challenged statute is denominated an enhanced penalty statute, in effect it creates a new crime. * * * The legislature cannot eliminate constitutional protections by separating and relabeling elements of a crime.”

Wedge, 293 Or at 608. The court then reversed and remanded for resentencing, declaring that, “[u]nder the facts of this case, we hold the defendant was deprived of his constitutional right to a jury trial on the issue raised in this case.” Id. at 609.

Thus, the key principle expressed by the court in Wedge was that, under ORS 161.610 (1981), the use or threatened use of a firearm is, in essence, an element of a crime which implicates the right to a jury trial for its determination. That continued to be the case after Wedge was decided. By codifying Wedge, as it purported to do,⁶ the legislature did not redefine the types of felonies that could result in enhanced sentences. Instead, it amended the statute to ensure that, in all cases, a defendant had the procedural safeguard of a jury trial on that issue, if the defendant so chose.⁷ Our understanding of the legislature’s intent in that regard is further buttressed by the fact that the prior version of ORS 161.610 continued in effect — as limited by Wedge — for more than two years before it was amended,⁸ and by the fact that the legislature considered its amendment to be a housekeeping measure to bring the statute into conformity with case law. Accordingly, in light of all of the above circumstances, there is no reason to believe that the legislature (a) intended its amendments to create an entirely new class of “felonies having as an element the defendant’s use or threatened use of a firearm,” or (b) intended to exclude, for purposes of future applications of ORS 161.610, those convictions that occurred after Wedge had been decided.⁹

In summary, we have no doubt that the legislature would have understood “felonies having as an element the defendant’s use or threatened use of a firearm” to include post -Wedge convictions and sentences under ORS 161.610 (1981). The question, instead, reduces to whether defendant can challenge his 1983 conviction and sentence in this proceeding on the ground that his conviction and sentence were not, in fact, lawfully imposed.¹⁰ For the reasons discussed above, we have concluded that he cannot. The legislature could have provided a mechanism for that kind of challenge to a final judgment for purposes of ORS 161.610; it did not do so.

For all of these reasons, we hold that the trial court erred when it refused to consider the 1983 conviction and sentence for purposes of imposing a mandatory minimum sentence under ORS 161.610(4)(c) (2001).

On appeal, reversed and remanded for resentencing; cross-appeal dismissed as abandoned.

1 At that time, ORS 164.415(l)(b) provided that a person commits robbery in the first degree if the person “ [u] ses or attempts to use a dangerous weapon” during the commission of the crime. Also at that time, ORS 161.610 (1981), amended by Or Laws 1985, ch 552, § 1, required the court to hold a sentencing hearing on the issue of whether a defendant used or threatened to use a firearm during the commission of the crime for which the person was convicted unless the defendant admitted that fact or unless the conviction necessarily established that fact. Because his first-degree robbery conviction did not necessarily establish his use or threatened use of firearm, the trial court held a hearing on that issue pursuant to ORS 161.610 (1981).

2 Although defendant was convicted by jury in 1982, judgment was entered on that conviction in 1983. We refer throughout this opinion to defendant’s “1983 conviction and sentence.”

3 The version of the statute under which defendant was sentenced in 1991 is substantially the same version that applies to his 2002 conviction.

4 The purpose of ORS 161.610 (2001) is apparent from the language of the statute itself: to deter recidivism by providing enhanced punishment for repeat offenders who use or threaten to use firearms during the commission of a felony. Although the legislature may not have intended for a constitutionally infirm conviction or sentence to serve as a predicate under ORS 161.610 (2001), it addressed that potential issue by the enactment of other statutes, which, by operation of law, would correct any such infirmities in the underlying predicate convictions and/or sentences before those convictions and/or sentences were used for enhancement purposes under ORS 161.610 (2001). Such statutes obviate the need for a “hearing within a hearing” under ORS 161.610 (2001) to determine the validity of prior sentences. For purposes of a defendant’s prior record of convictions and sentences, those issues are considered as finally determined in prior proceedings, consistent with legislative policy that judgments are to be deemed final, in order to afford certainty in the adjudication of future legal matters. Defendant’s argument, if accepted, would frustrate that legislative policy by resulting in judgments that are final for some but not all purposes. Moreover, if defendant’s argument were correct, it could put him in a more favorable position than that of similarly situated defendants who had successfully challenged the procedure under which they were sentenced on direct appeal or through post-conviction relief and who then were subject to resentencing with a jury empaneled to determine whether they used or threatened the use of a firearm.

5 The dissent’s invocation of the “right for the wrong reason” doctrine is inappropriate on this record. We affirm on an alternative basis only if the record would be materially the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). In this case, had defendant argued in the trial court, as the dissent does, that the 1983 and 1991 convictions were not “felonies having as an element the defendant’s use or threatened use of a firearm” within the meaning of ORS 161.610 — as opposed to arguing only that his 1983 conviction was constitutionally infirm — the state would have had the opportunity to make a different record regarding the nature of the 1983 and 1991 convictions.

6 According to the legislative history, legislators understood that the underlying bill essentially conformed the code to case law, and that the amendments were not intended to make new law. Minutes, Senate Judiciary Committee, June 14, 1985, 28. In fact, the amendments were characterized as a housekeeping measure that would bring the statute into conformity with case law. Id. at 27.

7 In the 1983 version of the statute (which was identical to the 1981 version under which defendant was sentenced), subsections (3) and (4) of ORS 161.610 authorized a court to make the finding that a defendant used or threatened to use a firearm in the commission of a crime. Subsection (5) of ORS 161.610 (1983) contained the minimum terms of imprisonment for “felony convictions in which the court finds that the defendant used or threatened to use a firearm [.]” For purposes of the 1985 amendment, subsections (3) and (4) of the 1983 version were deleted; subsection (5) of the 1983 version remained intact, with the exception of language referring to the court making a finding. In place of the language referring to a court making the requisite finding, the legislature inserted the phrase “felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime * * Or Laws 1985, ch 552, § 1.

8 Wedge was decided in 1982, before the start of the 1983 legislative session. The legislature took no action regarding ORS 161.610 in the 1983 legislative session, waiting until the 1985 legislative session to amend the statute.

9 To illustrate its position regarding the nature of the post-Wedge amendment to ORS 161.610, the dissent uses the hypothetical example of a change in the required level of blood alcohol content for purposes of a predicate DUII conviction as proof of an element of felony DUII. The hypothetical is inapposite because it assumes facts different from what occurred in this case where the legislature did not redefine what felonies were subject to enhanced gun minimum sentences.

10 While the Wedge court foresaw the very situation that arises in this case, see 293 Or at 608-09, it did not decide whether a predicate conviction under ORS 161.610 could be collaterally challenged in a different proceeding.