State v. Torres

59 P.3d 47, 184 Or. App. 515, 2002 Ore. App. LEXIS 1721
Court of Appeals of Oregon·Decided October 30, 2002·No. CR96-0081; A110729·Published·Cited by 7 cases

Opinion

EDMONDS, P. J.

The state petitions for reconsideration of our decision in State v. Torres, 182 Or App 156, 48 P3d 170 (2002), in which we affirmed defendant’s conviction for assault in the second degree and remanded for resentencing. We grant reconsideration but reject the state’s argument and adhere to our original disposition.

Defendant was convicted of second-degree assault and sentenced to 90 months in prison. In our original opinion, we remanded the case for resentencing, holding that the use of defendant’s Washington state conviction to enhance his sentence was inappropriate because the state had not carried its burden of showing by a preponderance of the evidence that the Washington conviction had an Oregon counterpart. Torres, 182 Or App at 165. In so holding, we concluded that, although defendant did not “notify the district attorney and the court in writing of any error in the criminal history as set forth in the sentencing report,” id. at 163, he had not waived his right to challenge the use of the Washington conviction in the calculation of his criminal history score, id. at 164-65. We determined that, although written notice is required before a defendant may challenge any factual assertions in the criminal history report, no such notice is required if a defendant challenges only the “legal consequence of an accurate report of his history.” Id. at 165.

In its petition for reconsideration, the state argues that we erred in holding that defendant was not required to give written notice of his challenge to the use of the Washington conviction. In support of its position, it asserts that (1) based on the text and context of ORS 137.079(5)(c), the state must be notified by a defendant of any error in his or her criminal history; (2) the term “criminal history” as used in that subsection is a term of art that includes the computation of the criminal history score and any conviction used in the computation of that score; and (3) our holding will impede the resolution of criminal history disputes because the state will not be aware of challenges like the one at issue in this case until they are raised at sentencing.

[518]*518As to the third argument, the state can prove that a defendant’s conviction in another state has an Oregon counterpart simply by looking at the elements that comprise that crime under the code of the other sta te and comparing it to an Oregon statute that contains the same elements. Moreover, unless the state is correct about the meaning of the term “criminal history” in the statute, the state would have us add words to the statute that do not appear in the text, contrary to ORS 174.010.1 In sum, the state’s policy argument is more appropriately addressed to the legislature.

We turn then to the state’s argument that the term “criminal history” encompasses the computation of the criminal history score in the presentence report. If the term refers to a defendant’s past contacts with the criminal justice system, the contents of a defendant’s criminal history would not include the computation of the criminal history score, and no written notice would be required under ORS 137.079(5)(c) if a defendant wished to challenge the score. However, if the term includes the computation of the criminal history score, then errors in the computation of that score, including the erroneous use of a past conviction, would be among the kinds of errors that require notice to the state.

As the state notes in its petition, the term “criminal history” is not defined in the statute. To determine the meaning of “criminal history” as used in ORS 137.079(5)(c), we use the template set forth by the Supreme Court in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). First we examine the text and context of the statutory section at issue.

ORS 137.079(5)(c) provides, in its entirety:

“Prior to the date of sentencing, the defendant shall notify the district attorney and the court in writing of any error in the criminal history as set forth in the presentence report. 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 [519]*519have the burden of proving by a preponderance of the 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.”

In its ordinary sense, “criminal history” generally refers to an individual’s record of criminal conduct. See, e.g., State v. Ford, 310 Or 623, 639, 801 P2d 754 (1990); Frederiksen v. Ostermeier, 162 Or App 430, 436, 986 P2d 1194 (1999). That understanding is consistent with the dictionary definition of the word “history”; that word is defined as “a systematic written account comprising a chronological record of events.” Webster’s Third New Int’l Dictionary 1073-74 (unabridged ed 1993). In light of that definition, the ordinary meaning of the term “criminal history” is a systematic record of an individual’s past contacts with the criminal justice system.

Nonetheless, the state argues that the context of ORS 137.079(5)(c) indicates that the term “criminal history,” as used in that subsection, includes the calculation of a defendant’s criminal history score because the statutory section at issue is part of the larger scheme of sentencing guidelines. It explains,

“A defendant’s ‘criminal history’ is * * * the aggregate of his adult felony and Class A misdemeanor convictions and juvenile adjudications that count in the calculation of his criminal history score. * * * [I]f a conviction is part of a defendant’s criminal history then it necessarily counts in the calculation of his criminal history score. Conversely, if a conviction does not qualify to be a part of his ‘criminal history,’ then it cannot be used to calculate his criminal history score. As a result, an error in using a conviction to calculate a defendant’s criminal history score constitutes an ‘error in the criminal history’ within the meaning of ORS 137.079(5)(c).”

Moreover, we note that the context of ORS 137.079(5)(c) includes ORS 137.079(4). Subsection (4) states:

“A defendant who is being sentenced for felonies committed prior to November 1,1989, may file a written motion to correct the criminal history contained in the presentence report prior to the date of sentencing. At sentencing, the [520]

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Torres, 59 P.3d 47, 184 Or. App. 515, 2002 Ore. App. LEXIS 1721 (Or. Ct. App. 2002).

59 P.3d 47 (State v. Torres) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. G. K. S.
564 P.3d 152 (Court of Appeals of Oregon, 2025)
State v. Shields
482 P.3d 784 (Court of Appeals of Oregon, 2021)
State v. Chapman
149 P.3d 284 (Court of Appeals of Oregon, 2006)
State v. Randant
87 P.3d 688 (Court of Appeals of Oregon, 2004)
State v. Crain
84 P.3d 1092 (Court of Appeals of Oregon, 2004)
State v. Sanders
74 P.3d 1105 (Court of Appeals of Oregon, 2003)