A Sentencing Argument for DCS- Super-Substantial Quantity (and Super-Super-Substantial Quantity)
When you think of the limits that the proportionality clause places on potential sentences, you might think of the Buck/Rodriguez-type arguments that potentially remove a sentence from Measure 11. But there is another type of proportionality argument that now can play a big role in the sentencing of DCS-SSQ cases and DCS-SSSQ cases.
This type of proportionality -- known as vertical proportionality -- is pretty straightforward. The state can't impose a sentence on a crime that is more severe than a greater version of that same crime. In other words, the state can't impose -- without violating the Oregon Constitution -- more time on a single count of a lesser-included offense of felony Theft in the First Degree than it could impose on the greater offense of Aggravated Theft in the First Degree. A useful discussion can be found in State v. Koch.
Whether a crime is a lesser-included offense is also pretty-straightforward. See State v. Blake, 348 Or 95, 99, 228 P3d 560 (2010) ("[I]f one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense. In that situation, under ORS 161.067(1), there is only one separately punishable offense.").
Which brings us to Delivery of a Controlled Substance. An unadorned DCS is a level-4 on the crime seriousness scale, but it is elevated to a line-8 or -9 or -10, depending on the sentencing enhancements which apply. However, none of those sentencing enhancements are considered elements. State v. Scott ("Because subcategory factors that are required to be pleaded for sentencing purposes are not elements of the charged offense, and because possession and delivery do not merge as a matter of law, the guilty verdicts on Counts 1 and 2 do not merge into a single conviction.")
Consequently, the only elements in a crime of DCS-SQ, -SSQ, or -SSSQ are "delivery" and "controlled substance."
However, in a charge of DCS w/in 1000 feet of a school, the allegation of "w/in 1000 feet of a school" is an element. Therefore, if a defendant is charged with both DCS-SQ and DCS w/in 1000 feet of a school from the same incident, the two counts merge into a single conviction because all the elements of DCS-SQ are contained in DCS w/in 1000 feet of a school. Therefore, DCS-SQ is a lesser-included of DCS w/in 1000 feet of a school. If the SQ isn't an element, and DCS-SQ is a lesser-included, then merger automatically follows. State v. Mickley:
- We accept the state's concession that the trial court erred in failing to merge the guilty verdicts. See State v. Rodriguez-Gomez, 242 Or App 567, 568, 256 P3d 169 (2011) (concluding that delivery of methamphetamine within 1,000 feet of a school merges with delivery of methamphetamine); State v. Unger, 276 Or App 445, 450-51, 368 P3d 37 (2016) (explaining that the substantial-quantity subcategory factor is not an element of a crime). Furthermore, we agree that the error is plain. See Unger, 276 Or App at 449-52 (concluding that the trial court plainly erred in failing to merge the guilty verdicts for manufacture of cocaine and manufacture of cocaine involving a substantial quantity); State v. Villarreal, 266 Or App 699, 700, 338 P3d 801 (2014) (concluding that the trial court plainly erred in failing to merge convictions for delivery of cocaine within 1,000 feet of a school and delivery of cocaine). Finally, for the reasons stated in Unger, we conclude that it is appropriate to exercise our discretion to correct the error. 276 Or App at 451-52.
The thing is, if it's true -- as the court holds -- that DCS-SQ is a lesser-included version of DCS w/in 1000 feet of a school, then logically, the same is true for DCS-SSQ and DCS-SSSQ. However, proportionality then kicks in, because DCS-SSQ is a level-9, DCS-SSSQ is a level-10, and the greater offense of DCS w/in 1000 feet of a school is a level-8.
Therefore, it violates proportionality to sentence DCS-SSQ or DCS-SSSQ as anything higher than a level-8. See also State v. Simonson
The reduction from a level-9 or -10 to a level-8 is enormous.