COA Largely Affirms Mallory Principal. Now Here's How You Avoid Harmless Error.
by: Ryan • May 21, 2014 • no comments
Today, the COA issued St v Cuevas, an opinion covering a broad number of legal issues. I want to focus on the sentencing issue, specifically the Court's impressive discussion of State v Mallory.
During the first few years of this blog, I wrote many times on Mallory, which has stood for an extension, under Oregon law, of Blakely and Apprendi. Though the Mallory opinion is seven years-old, it was only cited by the COA for the first time a few weeks ago, and even then in an opinion that didn't reach the merits. The fact that Mallory isn't one of the most familiar opinions to Oregon defense lawyers can be traced to a number of reasons. First, the Mallory principle impacts rules related to the sentencing guidelines (specifically, criminal history reconstitution, shift-to-I and the 200% and 400% rules), which means you have to be a felony lawyer to even care. Secondly, Measure 11, among other rules, has made the aforementioned guideline rules less relevant, since they trump the guidelines. Third, the opinion in Oregon v. Ice seemed quite close in terms of effect to Mallory, and many people (erroneously) believed Ice foreclosed Mallory. And lastly, while the language in Mallory was quite favorable to defendants, technically the defendant lost.
In Cuevas, the defendant lost again (harmless error), but the court did a thoughtful and careful analysis that is well worth reading. First, note this part:
- As noted above, defendant does not argue that Apprendi and Blakely precluded the trial court from imposing consecutive sentences on the basis of the court's finding of separate criminal episodes. Such an argument would have been foreclosed by Ice. Defendant argues, rather, that the finding of separate criminal episodes by the trial court could not be used to enhance the penalties for particular crimes through the court's calculation of defendant's criminal history score and the avoidance of the shift-to-I rule.
- We agree with defendant in part.
There are complexities to the facts of the case and the way they play out in the analysis that I will discuss in later posts. But here is essential reading:
- We reach a different conclusion, however, for the crimes that occurred within the same time period and at the same location. As to those crimes, the only way that the trial court could have concluded that they arose from separate criminal episodes was to conduct additional "factfinding beyond a determination of what is in the court records." Mallory teaches that that was error under Apprendi and Blakely.
However, as noted above, the defendant lost because of a finding of harmless error. Some findings of separate criminal episodes were, in fact, made by the jury, albeit in a slight roundabout fashion. For questions of separate criminal episodes that weren't in any way submitted to the jury, the court analyzed the facts, and it found that had the trial court -- as required by the federal constitution -- submitted the question of separate criminal episodes to the jury, the jury no doubt would have found separate criminal episodes.
I accept the court's reasoning at face value. That analysis is missing an important point, however. And it's the point the court misses that will protect your clients from a similar fate. Under an Oregon statute, if a fact is a Blakely fact, as the court unambiguously says a finding of separate criminal episodes is, then the state must give notice of that fact within 60 days of arraignment on the indictment. If they don't, the question cannot be submitted to the jury. Thus, while a jury may have found separate criminal episodes if the issue was submitted to them, because the issue is a Blakely/Apprendi issue, it could not have been submitted to the jury at all absent sufficient notice. In my experience, prosecutors -- except those in Marion County -- rarely give satisfactory notice of an intent to prove separate criminal episodes.
In sum, if you have a sex case that alleges ten Sex Abuse IIs involving the same victim over the same ten month period, and the state hasn't given notice of an intent to prove separate criminal episodes to the jury, then not only should you object to the trial court making such a finding (under the US Constitution), but you should note that no one gets to make that finding because of the relevant Oregon statute. When you win that argument, your hypothetical client -- who started as an I on the grid -- stays an I for all counts, and therefore does not face prison. Not a bad result for just understanding sentencing issues better than anyone else in the courtroom.
