State v. Sierra

374 P.3d 952, 278 Or. App. 96, 2016 Ore. App. LEXIS 544
Marion County Circuit Court, Oregon·Decided May 4, 2016·No. 05C40355; A153534·Published·Cited by 5 cases

Opinion

LAGESEN, P. J.

As a result of an incident involving defendant’s use of a crossbow to threaten people at a convenience store—the details of which have been recounted elsewhere1—a jury convicted defendant of nine offenses (one count of first-degree kidnapping, two counts of second-degree kidnapping, one count of fourth-degree assault; and five counts of unlawful use of a weapon (UUW)). The trial court sentenced defendant to a total of 250 months’ incarceration. The Supreme Court later concluded that the evidence was not sufficient to support defendant’s two second-degree kidnapping convictions, reversed those convictions, and remanded the case for resentencing on the seven remaining convictions. On remand, the trial court relied on State v. Partain, 349 Or 10, 20-21, 239 P3d 232 (2010)—which altered the longstanding Oregon common-law rule that a criminal defendant who succeeds on appeal cannot be given a longer sentence on retrial or remand—to impose a longer total sentence: 276 months’ incarceration.2 It did so, in part, by imposing longer sentences on three of the UUW convictions, and by ordering that those sentences run consecutively—even though defendant had already completed the previously imposed sentences for the UUW convictions. Aggrieved by the trial court’s imposition of an additional 26 months’ incarceration, defendant has appealed.

As framed by the parties’ arguments, this appeal raises four primary questions regarding the trial court’s authority to impose a longer sentence on remand, as well as ancillary questions as to whether those issues are properly [98] subject to review in this appeal. Specifically, in view of the parties’ arguments, the questions before us are as follows: (1) If preservation principles do not bar review, do due process and the Ex Post Facto Clause of Article I, section 21, of the Oregon Constitution, bar the application of Partain to this case and require that defendant be resentenced under the more forgiving standard established by State v. Turner, 247 Or 301, 313, 429 P2d 565 (1967)? (2) If preservation principles do not bar review, do federal constitutional due process and double jeopardy principles prohibit the resentencing of defendant on any conviction for which defendant had completed the previously imposed sentence? (3) If Partain applies to defendant’s case, did the trial court comply with the requirements of Partain when, on resen-tencing, it imposed a total incarcerative sentence that was 26 months longer than the sentence previously imposed? (4) If ORS 138.222 or the law-of-the-case doctrine do not bar review, does State v. Smith, 323 Or 450, 918 P2d 824 (1996), prohibit the modification of defendant’s sentences on the UUW convictions for which defendant had completed the previously imposed sentences?

For the reasons explained below, we answer those questions as follows: (1) and (2) defendant’s constitutional claims are not preserved and do not warrant plain error review; (3) the trial court satisfied the requirements under Partain; and (4) defendant’s Smith claim is reviewable on appeal, and, on the merits, Smith did not bar the trial court from modifying defendant’s UUW sentences on remand because the trial court had statutory authority to do so under ORS 138.222(5)(b). We, therefore, affirm.

CONSTITUTIONAL CLAIMS

Broadly stated, defendant raises two distinct constitutional challenges to his sentence. First, he contends that due process and the Ex Post Facto Clause of Article I, section 21, prohibit the application of Partain to his case. He argues that those constitutional provisions instead, require the application of Turner, the case overruled by Partain, which would prohibit the trial court from sentencing defendant to a longer sentence than that previously imposed. Second, he contends that the Fifth Amendment’s Double [99] Jeopardy Clause, as applicable to Oregon via the Fourteenth Amendment, prohibited the trial court from imposing longer sentences on the UUW convictions after defendant had completed the previously imposed sentences. In support of that argument, he relies primarily on United States v. Arrellano-Rios, 799 F2d 520 (9th Cir 1986).

Defendant did not make those arguments to the trial court.3 As a result, they are not preserved. Although defendant asks that we engage in plain error review, the claimed errors are not ones that are “plain,” that is, “obvious, not reasonably in dispute.” Ailes v. Portland Meadows Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). Instead, they are ones that would require resolution of state and federal questions of constitutional law not previously resolved by us, the Oregon Supreme Court, or the United States Supreme Court. We note in particular that, as to defendant’s double jeopardy argument, it is not obvious that the case on which defendant relies would resolve the issue, even if we were to adopt its reasoning as our own. As the Ninth Circuit itself later concluded, the holding in Arrellano-Rios, a preguidelines case, did not apply in a case where a defendant had been sentenced under the federal sentencing guidelines, a scheme that resembles the Oregon sentencing guidelines under which defendant was sentenced. See United States v. Radmall, 340 F3d 798, 801 & 801 n 5 (9th Cir 2003). Therefore, because defendant’s constitutional claims are not preserved, and the purported errors are not plain, we reject defendant’s constitutional claims without addressing their merits.

[100] APPLICATION OF PARTAIN

We turn to defendant’s contention that the trial court’s decision to sentence defendant to a harsher sentence on remand did not comply with the requirements of Partain. The argument raises a question of law, and we review for legal error the trial court’s determination that Partairis prerequisites for the imposition of a harsher sentence were met. State v. Febuary, 274 Or App 820, 821, 361 P3d 661 (2015), rev allowed, 358 Or 794 (2016) (reviewing trial court’s compliance with Partain requirements for legal error). We conclude that the trial court’s ruling comported with the Partain requirements.

Under Partain, a trial court resentencing a defendant following a successful appeal may sentence the defendant to a longer sentence than that previously imposed if the court (1) states its reasons for doing so on the record; (2) the court’s reasons are based on “identified facts of which the first sentencing judge was unaware”; and (3) the reasons are “such as to satisfy a reviewing court that the length of the sentence imposed is not a product of vindictiveness toward the offender.” Partain, 349 Or at 25-26. The purpose of those requirements is to guard against the possibility of a trial court penalizing a criminal defendant for taking a successful appeal through the imposition of a longer sentence. Id. at 23-26.

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State v. Sierra, 374 P.3d 952, 278 Or. App. 96, 2016 Ore. App. LEXIS 544 (Or. Super. Ct. 2016).

374 P.3d 952 (State v. Sierra) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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