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Blakely Factors You May Not Know Are Blakely Factors, Part 2

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by: Ryan • May 19, 2012 • no comments

In Blakely Factors You May Not Know Are Blakely Factors, Part 1 , I pointed out that juvenile adjudications are Blakely facts, and I cited case law that says so.

In this post, I want to remind everyone that, in some cases, a finding of separate criminal episodes is also a Blakely fact that must be proven to a jury if not admitted to (nor the right to a jury waived).

Take the following scenario. The defendant is charged with 5 counts of ID Theft, based on stealing a credit card and going on a shopping spree over the weekend. Each count is alleged to have occurred "on or between May 3, 2012, and May 5, 2012."

5 counts because the card was submitted to 5 different stores.

Defendant has no criminal history, and I'm going to ignore any theft charges for this hypothetical. I'm also going to ignore the argument that as a matter of law the defendant is only guilty of one ID Theft, because he possessed the credit card continuously, and uninterrupted possession is a continuous act and single criminal episode, even if it lasts for days or weeks.

Instead, let's assume the prosecutor hopes to convince the judge that there are 5 criminal episodes, and that your client is facing a Repeat Property Offender sentence on the fifth count, because the first four serve as predicates.

You go to trial, you have a jury trial, you lose. The prosecutor argues that your client should go to prison on count 5.

You say, "judge, I don't think factually there are five criminal episodes, and I'm happy to explain why. But we don't even get to that point. Since a finding of separate criminal episodes would increase my client's sentence from probation to prison, a finding of separate criminal episodes is a Blakely finding. Ergo, it must be proven to a jury. The jury wasn't asked and didn't make that finding. Consequently, it is one criminal episode as a matter of law. Your Honor can't find to the contrary without violating my client's right to a jury trial under the United States Constitution."

You will rely on State v. Mallory for this argument.

The state's counter-argument is this:

Judge, the defendant has it backwards. We start from the presumption that each crime of conviction is from a separate criminal episode, even if the crimes are alleged to have occurred during the same date range. It is the burden of the defendant to prove they are from the same criminal episode. Therefore, rather than being a fact that increases the defendant's sentence, the finding of the "same criminal episode" actually shortens the presumptive sentence. As long as the default is the greater sentence, then there is no finding that increases the sentence.

Creative argument, but it's wrong. The burden is on the state to prove separate criminal episodes, not the defendant. And the proof is:

213-004-0013(3) Except to the extent any disputed part is thereafter changed by agreement of the district attorney and the defendant with the approval of the sentencing judge, the state shall have the burden of producing further evidence to satisfy its burden of proof as to any disputed part or parts of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.

Here's a little more detail. The criminal history score is based on defendant's criminal history other than his "current crime or crimes of conviction." ORS-213-004-006(2). The burden is on the state to prove his criminal history, which necessarily includes proving that a conviction is not a "current crime" of conviction. State v. Allen, 151 Or App 281, 283 (1997)("Defendant argues that the trial court erred in doing so, because the applicable sentencing rule, OAR 253-04-006(2), does not permit the "current crime or crimes of conviction" to be considered part of his criminal history. We agree and remand for resentencing.")

In my hypothetical, the jury was never asked to find separate criminal episodes. Moreover, the state never gave notice within the statutory deadline of an intent to prove separate criminal episodes. Consequently, the five charges of ID Theft constitute one criminal episode as a matter of law, and this imaginary client isn't going to prison.

Remember that under current law, the dates in the indictment must overlap for this to be a Blakely issue. I could make an argument to the contrary for some crimes, like possession, that continue for as many days as the possession is uninterrupted, but for the now, that might be a bridge too far.

As I have said before, if there's a predominant reason for unlawful and unconstitutional prison sentences in the state of Oregon, it's the fact that defense attorneys don't understand this issue, much less argue and preserve it.