Oregon Supreme Ct - Nov. 13, 2015

by: Abassos • November 13, 2015 • no comments

A Finding of Separate Criminal Episodes (For Criminal History Scoring and Consecutive Sentencing) Is Not Subject To the Apprendi Rule

Whether multiple crimes arise from separate criminal episodes (and therefore may be used to reconstitute defendant's criminal history score or impose consecutive sentences), is not a finding subject to the Apprendi rule and, therefore, not a finding that requires a jury:

As a matter of state law, a finding that a previously sentenced conviction and the conviction currently being sentenced arose out of a single criminal episode does not increase a defendant’s criminal history. Rather, it is a factual finding that reduces a defendant’s criminal history and the resulting sentence by not counting a conviction that otherwise would be included in the defendant’s criminal history.

For consecutive sentencing purposes, the court finds that the relevant OAR merely provides a limit on the aggregate sentence that may be imposed. That is, it potentially reduces a sentence; it does not serve as a basis for increasing a person's sentence. J. Walter dissents, joined by J. Landau and J. Brewer, would overturn State v Buchholz and find, under state law, that the OARs do not allow for reconstitution based on convictions from the same sentencing hearing:

This court was wrong in Bucholz. Its characterization of the commentary and legislative history does not fairly represent those sources, which spoke directly to the issue presented in that case. Further, the court ignored the rule’s reference to “crimes” (plural) of conviction. This case requires that we reconsider Bucholz and correct that error. . . I write not to speak definitively about federal law, but because, in reaching the federal issues presented in this case, the majority is required to construe state law. In my view, the majority’s interpretation of state law is flawed. I respectfully dissent."

State v Cuevas, 358 Or 147 (2015).

From Jess Barton, the appellate attorney in Cuevas:

[Defense attorneys should] keep insisting that separate-episode findings are subject to the Apprendi rule. [For more information about those objections, see Felony Sentencing in Oregon, § 1-7.9).] But also in cases where the state seeks criminal-history reconstitution, cite Justice Walters's dissent to claim that the guidelines prohibit reconstitution, and that they allow "only those convictions that preceded the hearing at which a defendant’s 'current crime or crimes' are sentenced" to be included in the criminal-history-score calculus.