State v. Stewart/Billings

892 P.2d 1013, 321 Or. 1, 1995 Ore. LEXIS 27

Opinions

VAN HOOMISSEN, J.

The issue in these consolidated cases is whether the sentencing courts erred in denying defendants’ motions to preclude the use of their juvenile adjudications in calculating their “criminal history scores” under the sentencing guidelines. The Court of Appeals affirmed the sentencing courts’ rulings. State v. Stewart, 123 Or App 147, 151, 859 P2d 545 (1993), adhered to as modified on reconsideration, 126 Or App 456, 867 P2d 794 (1994); State v. Billings, 124 Or App 682, 865 P2d 1340 (1993). We also affirm.

FACTS AND PROCEDURAL HISTORY

Defendant Stewart was convicted by a jury of two counts of burglary in the first degree. Before sentencing, he moved to preclude the use of his juvenile adjudications for burglary and unauthorized use of vehicle in calculating his criminal history score under the sentencing guidelines.¹ He argued that, because he had not been afforded jury trials in his juvenile proceedings, the use of those juvenile adjudications in assessing his criminal history score violated the jury trial provision of Article I, section 11, of the Oregon Constitution.² The sentencing court denied Stewart’s motion. The court then determined that Stewart fell within gridblock 8-G on the guidelines matrix and sentenced him to a prison term of 22 months, with 36 months of post-prison supervision, on the primary offense. If the sentencing court had not used Stewart’s juvenile adjudications, his maximum presumptive prison sentence would have been 18 months. Thus, his sentence was increased by at least 4 months as a consequence of considering his juvenile adjudications.

Defendant Billings was convicted by a jury of first degree sexual abuse and first degree attempted sodomy. Before sentencing, he moved to preclude the use of his juvenile adjudications for burglary, sodomy, and assault in calculating his criminal history score under the sentencing guidelines. Essentially, his argument was the same as that of Stewart. The sentencing court denied Billings’ motion. The court then determined that Billings’ conviction for sexual abuse fell under gridblock 8-C on the guidelines matrix and, accordingly, sentenced him to a presumptive prison sentence of 34 months. The court separately sentenced Billings on the attempted sodomy conviction under gridblock 8-C and again imposed a presumptive prison sentence of 34 months, to be served consecutively to his sentence for sexual abuse. Billings’ juvenile adjudication for sodomy changed his criminal history score from 8-E to 8-C.

Stewart and Billings appealed. The Court of Appeals, sitting in banc, rejected Stewart’s argument, holding that “[a]n adjudication sufficient to commit a juvenile to a juvenile facility can later be used to enhance a sentence as an adult.” Stewart, 123 Or App at 151.³ In a dissenting opinion in Stewart, four Court of Appeals judges opined that, because Article I, section 11, guarantees adult criminal defendants a right to a jury trial, nonjury juvenile adjudications may not be used in a later criminal proceeding ‘ ‘because [that outcome] is inconsistent with the constitutional underpinnings that permit juvenile adjudications without juries.” Stewart, 123 Or App at 152 (De Muniz, J., dissenting). Billings, which presented the same legal issue, was affirmed from the bench.⁴ We allowed review in both cases.

COLLATERAL ATTACK

We first consider the state’s position that defendants’ argument under Article I, section 11, is an impermissible collateral attack on the validity of their juvenile adjudications. The state relies primarily on Custis v. United States, 511 US_, 114 S Ct 1732, 128 L Ed 2d 517 (1994). Custis held that, under federal sentencing guidelines, an adult offender may not attack collaterally the validity of a prior state conviction used at the offender’s sentencing hearing on the ground that the offender had inadequate assistance of counsel in the prior proceeding. In Custis, the Supreme Court of the United States concluded that federal sentencing guidelines do not provide specific statutory authority for such a challenge and that the Constitution of the United States does not require that collateral attacks be allowed. 128 L Ed 2d at 525-26. Collateral attacks are permitted only where the prior conviction was obtained in violation of the offender’s right to appointed counsel. Id. at 526-28 (citing Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963)).

The Supreme Court’s decision in Custis was based on the fact that “failure to appoint counsel for an indigent defendant [is] a unique constitutional defect” that “rises to the level of a jurisdictional defect”; that allowing other collateral attacks during sentencing on a subsequent crime “would require a sentencing court to rummage through” the records of prior cases; and that allowing additional collateral attacks would deprive earlier judgments of their finality and “inevitably delay and impair the orderly administration of justice.” Custis, 128 L Ed 2d at 528. We conclude, however, that defendant’s argument is not a collateral attack, because defendants could not have made a direct attack on the future consequences of their juvenile adjudications in juvenile court. Thus, defendants’ argument is not the sort of impermissible collateral attack discussed by the Court in Custis.

We also agree with defendants that, unlike in Custis, there is a statutory basis for their challenge. ORS 137.079 contains the requirement that presentence reports are to be considered by a sentencing court. ORS 137.079(5) provides in part:

“(c) * * * Except to the extent that any disputed portion is later changed by agreement of the district attorney and defendant with the approval of the court, the state shall have the burden of proving by a preponderance of evidence any disputed part of the defendant’s criminal history. The court shall allow the state reasonable time to produce evidence to meet its burden.

“(d) The court shall correct any error in the criminal history as reflected in the presentence report.

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“(f) Except as provided in ORS 138.222, the court’s decision on issues relating to a defendant’s criminal history shall not be reviewable on appeal.” (Emphasis added.)

ORS 138.222(4) provides:

“In any appeal, the appellate court may review a claim that:

“(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence; or

“(b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.” (Emphasis added.)

Viewing those statutes in context, it is clear that, in making determinations about any disputed part of a defendant’s criminal history pursuant to ORS 137.079(5), the sentencing court must determine whether the use of a prior juvenile adjudication would comply with the requirements of law, including constitutional requirements.

We hold that defendants’ state constitutional challenge to the use of their juvenile adjudications in sentencing in these cases is authorized by ORS 137.079(5), that the sentencing courts had authority to hear defendants’ challenge on the ground asserted, and that appellate courts have jurisdiction to review that challenge under ORS 138.222(4).

ARTICLE I, SECTION 11, ANALYSIS

We turn to the merits of defendants’ claim.⁵ Defendants and the Court of Appeals dissenters have relied most heavily on Baldasar v. Illinois, 446 US 222, 11 S Ct 1585, 64 L Ed 2d 169 (1980) as persuasive authority for their proposed interpretation of Article I, section 11. However, that case was overruled hy.Nichols v. United States, 511 US_, 114 S Ct 1921, 128 L Ed 2d 745 (1994).

As summarized in Nichols:

“[I]n Baldasarv. Illinois, a majority of the Court held that a [constitutionally valid] prior uncounseled misdemeanor conviction * * * could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldosar provided no rationale for the result; instead, it referred to the ‘reasons stated in the concurring.opinions.’ ” 128 L Ed 2d at 752.

The Court in Nichols then analyzed the conflicting concurrences in Baldosar, further noting that lower courts have had difficulty trying to apply Baldasar and, consequently, have regularly limited its application to its facts. In overruling Baldasar, the Nichols Court said:

“[A]n uncounseled conviction valid under Scott [v. Illinois, 440 US 367, 99 S Ct 1158, 59 L Ed 2d 383 (1979),] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common in state criminal laws, do not change the penalty imposed for the earlier conviction.” Id. at 754 (citations omitted).

Noting that sentencing courts have traditionally considered a wide variety of factors, including a defendant’s past criminal behavior, the Nichols Court stated:

“Sentencing courts have not only taken into consideration a defendant’s prior convictions, but have also considered a defendant’s past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 US 241, 69 S Ct 1079, 93 L Ed 1337 (1949).” Id. at 754-55.

The Nichols Court concluded that prior uncounseled misdemeanor convictions could be used at a later sentencing hearing. Id. at 755.

The state argues that, because a juvenile has no right under Article I, section 11, to a jury trial, State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 575, 857 P2d 842 (1993), including consideration of juvenile adjudications in a guidelines criminal history score does not violate Article I, section 11.⁶ We are not persuaded by defendants’ argument, based on Baldasar, that, even if their juvenile adjudications are not invalid per se, later consideration of those adjudications for adult sentencing purposes creates a state constitutional infirmity. As Reynolds shows, there was no constitutional infirmity in defendants’ juvenile adjudications. Defendants cite no persuasive authority for the proposition that a constitutionally valid juvenile adjudication is not relevant to and may not be used for later adult sentencing purposes. City of Pendleton v. Standerfer, 297 Or 725, 688 P2d 68 (1984), and State v. Grenvik, 291 Or 99, 628 P2d 1195 (1981), cited by defendants, are inapposite. Those cases involved questions regarding the use of constitutionally invalid convictions in later prosecutions.

Before the enactment of the sentencing guidelines, a sentencing judge was entitled to take into consideration a vast array of circumstances in trying to determine the appropriate sentence. The judge frequently considered adjudicated and unadjudicated wrongdoing, other scrapes with the law, and many other types of pertinent information in reaching the sentencing decision. The sentencing guidelines purport to narrow somewhat that range of considerations, but they do not narrow it entirely — they still permit the judge to consider an offender’s prior scrapes with the law that have resulted in a formal adjudication by a juvenile court that the offender had committed an act which, had it been committed by an adult, would have been punishable as a felony. Defendants do not suggest that, before the adoption of the sentencing guidelines, it would have been impermissible for a sentencing judge to consider their juvenile adjudications, and they offer no persuasive reason why their use is not permissible now.

COLLATERAL CONSEQUENCES

Defendants also rely on Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), for the proposition that juvenile adjudications are “criminal prosecutions” for purposes of Article I, section 11. Defendants ask this court to apply the test from Brown and to conclude that in this context their prior juvenile adjudications are “criminal prosecutions.” We agree with the state’s characterization of defendants’ argument as a “thinly veiled attack on this court’s recent holding in Reynolds.” We decline defendants’ invitation to retreat from our analysis and holding in Reynolds7

There are any number of circumstances that may have collateral consequences in a later case without transformingthe earlier circumstances into criminal prosecutions. In these cases, defendants are being punished for their present crimes only, as to which they each have received a jury trial in accordance with all constitutional requirements. We hold that using defendants’ juvenile adjudications in calculating their criminal history scores under the sentencing guidelines did not violate the jury trial provision of Article I, section 11.

The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed.

1 OAR 253-04-006(2) provides in part:

“An offender’s criminal history is based upon the number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender’s criminal history at the time the current crime or crimes of conviction is sentenced.”

“Juvenile adjudications” are defined as “formal adjudication or finding by a court that the juvenile has committed an act which, if committed by an adult, would be punishable as a felony.” OAR 253-03-001(11).

2 Article I, section 11, of the Oregon Constitution, provides in part:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury[.]”

3 In Stewart, the Court of Appeals remanded for resentencing on Count II. On review, the state does not challenge that decision.

4 In his Court of Appeals brief and in his petition for review, Billings also raised claims under Article I, sections 20 (equal protection) and 21 (ex post facto laws), of the Oregon Constitution. Those claims were not preserved for review and they are not mentioned in defendants’ brief on the merits. Accordingly, we do not consider them. Billings also argued in the Court of Appeals that the trial court erred when it used the same criminal history classification to order both of his consecutive sentences. Because that claim has not been asserted on review, we do not consider it.

5 We note here that defendants have based their entire argument on a single theory, viz., that it is impermissible to consider at all their earlier juvenile court adjudications. Therefore, that is the only question that we consider. We do not consider or address issues that might be raised concerning, for example, any limitations that may exist on the weight that may be given to such adjudications, assuming that they may in fact be considered for some purpose.

6 As noted, defendants were convicted after jury trials of the crimes for which they are being sentenced, and the validity of their convictions is not at issue here.

7 During oral argument in these cases, defendants argued that, in Reynolds, this court did not consider the precise issue presented in these cases, viz., the “collateral consequences” of an adjudication for juvenile delinquency. Defendants are mistaken. In Reynolds, that issue was briefed, argued, and ultimately rejected by this court. Reynolds, 317 Or at 565 n 3.