State v. Zolotoff

365 P.3d 131, 275 Or. App. 384, 2015 Ore. App. LEXIS 1484
CourtCourt of Appeals of Oregon
DecidedDecember 9, 2015
Docket08C51862; A153858
StatusPublished
Cited by12 cases

This text of 365 P.3d 131 (State v. Zolotoff) 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.

Bluebook
State v. Zolotoff, 365 P.3d 131, 275 Or. App. 384, 2015 Ore. App. LEXIS 1484 (Or. Ct. App. 2015).

Opinion

HADLOCK, J.

This case relates to the scope of authority that a trial court has when it regains jurisdiction after this court remands a criminal case for resentencing. As we explain below, when this court orders a “remand for resentenc-ing” without expressly limiting the scope of remand, the trial court must resentence the defendant on each surviving count of conviction, and it may change the terms of the defendant’s sentences, so long as the newly imposed sentences are lawful. In an earlier appeal in this case, in which defendant was convicted of multiple crimes, we reversed and remanded for merger of the guilty verdicts on two counts; we also remanded for resentencing. On remand, the trial court reasoned that it was authorized only to merge the two guilty verdicts and not to otherwise resentence defendant. We conclude that the trial court’s reasoning was plainly erroneous and led the court to improperly refuse to consider whether it should change the terms of defendant’s sentences. We exercise our discretion to correct that plain error and, therefore, remand for another resentencing hearing.

The pertinent facts are mostly procedural and, for our purposes, are undisputed. At his criminal trial, defendant was convicted of four out of five crimes charged: attempted first-degree assault (Count 2), first-degree burglary (Count 3), unlawful use of a weapon (Count 4), and menacing (Count 5). State v. Zolotoff, 250 Or App 376, 377, 280 P3d 396, rev den, 352 Or 666 (2012). The trial court imposed an upward-departure sentence on Count 3 of 130 months of incarceration and 36 months of post-prison supervision. The court imposed a 30-month prison sentence on Count 2 and a shorter prison sentence on Count 4, both to run concurrently with each other and with the sentence on Count 3. On Counts 2, 3, and 4, the court ordered that defendant could not “be considered for various leave, release or program options pursuant to SB 936,” based on findings made on the record.1 Finally, the court imposed a consecutive 300-day jail sentence on Count 5.

[387]*387In his first appeal, defendant argued that he was entitled to a judgment of acquittal on one of the counts; we rejected that argument without discussion. Id. Defendant also argued that the trial court erred in failing to merge the guilty verdicts on Counts 2 and 4. The state conceded that merger was required in light of how the two pertinent crimes were charged in this case. We agreed and, in our previous opinion, held that the trial court erred when it failed to merge the guilty verdicts on Counts 2 and 4. Accordingly, we reversed and remanded those two counts for entry of a single conviction for attempted first-degree assault; we also remanded for resentencing. Id. at 377-78. Our “tag line” stated, in pertinent part: “[J]udgment reversed and remanded with instructions to merge conviction for unlawful use of a weapon (Count 4) into conviction for attempted assault in the first degree (Count 2) and for resentencing, otherwise affirmed [.]” Id. at 378.

As a result of our decision, the trial court scheduled a resentencing hearing, which defendant attended in person. Just before the hearing, the prosecutor and defendant’s attorney met to discuss a draft version of a new judgment. Because the discussion that followed is important to our disposition in this case, we quote the transcript of the resentencing hearing at length. A review of that transcript reveals that the trial court (and perhaps the lawyers) plainly believed — incorrectly—that the court lacked authority to reconsider the terms of defendant’s sentences on the surviving counts of conviction:

“THE COURT: *** This is State v. Zolotoff, 08C-51862, and the time set for a resentencing as a result of the appellate decision; is that everybody’s understanding?
“ [PROSECUTOR]: Yes, Your Honor.
[388]*388“THE COURT: Okay. Is that your understanding, Mr. Zolotoff?
“THE DEFENDANT: Yes.
“THE COURT: Okay. And it’s just on Count 2; is that correct?
“[PROSECUTOR]: Yes, Your Honor. And it should be in the file. [Defendant’s counsel] did have an opportunity to review what I believe would need to be marked as the second amended judgment.
“THE COURT: Okay. And, [defense counsel], have you had an opportunity to review this proposed judgment that the State has prepared and compare it to the decision of the Court of Appeals?
“ [DEFENSE COUNSEL]: I have, Your Honor.
“THE COURT: And what’s your position?
“[DEFENSE COUNSEL]: I think that’s correct. I think that’s following the Court of Appeals order to merge that count.
“THE COURT: Okay. And it appeared to me when I read the judgment that basically they corrected it in the Court of Appeals. They didn’t send it hack to me to do all kinds of fancy were [sic] creative things, they just said fix it, but it is a resentencing so, Mr. Zolotoff, you have the right to be here and here you are.”

(Emphasis added.)

The court then asked defendant if he had anything to say. Defendant responded,

“Just that I’m asking for leniency on the sentencing. I’ve been good. I realize that I’ve done some wrong along the way. I think some of it was perhaps on the fact I was on antidepressants the time, as I understand with counseling that I have imprisoned now Prozac has a bad effect some people and I might have fallen victim to that. Anyway, I’m at the mercy of the Court and I hope that we can get a fair sentencing. I would like to see a major reduction in to get on with my life. I’ve got four years to go to retirement age and I’m not getting any younger and I’d like to be able to get out and be able to do some good in the world again.”

[389]*389The court responded to defendant’s request by stating, “This was reversed just for the purposes of entering this judgment.” The court then asked if the new judgment would reduce defendant’s sentence in any way. Defendant’s counsel replied, “It does not, Your Honor.”

The court then told defendant,

“Well, you know, Mr. Zolotoff, I think that the only way that it would really likely be able to reduce your sentence in any way is if there was an authorization for you to the considered for earned good time. And, you know, as, you know, obviously a very contested trial, you were acquitted on one count and the sentencing was likewise quite contested.”

The court and the two attorneys then discussed how to properly structure the judgment. Specifically, the court wondered whether the judgment should simply vacate the conviction on Count 4 or whether the judgment should state that Count 4 merges with Count 2. After that discussion, the court returned to the issue of defendant’s request for a reduced sentence:

“[THE COURT:] So anyway, we’ll try to get it all straightened out. But I would say, Mr. Zolotoff, it would require a resentencing, that, you know, people write to us all the time, that if you wrote a letter supported by your counselor there at the institution, with some records that showed how well you’re doing and if the District Attorney stipulated to it, it might be that a judgment that authorized some good time.

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Cite This Page — Counsel Stack

Bluebook (online)
365 P.3d 131, 275 Or. App. 384, 2015 Ore. App. LEXIS 1484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zolotoff-orctapp-2015.