Chance to get Miller and Bucholz overruled?
by: Jessbarton • December 29, 2014 • no comments
On January 13, 2015, I'll be submitting oral arguments in State v. Cuevas, 263 Or App 94, rev allowed, 356 Or 163 (2014). Initially set to address a pair of narrow claims, the case now presents a pair of related but much broader claims. Information about the claims is provided below, but the questions the claims present are:
- 1. In State v. Miller, 317 Or 297 (1993), did the Supreme Court erroneously construe former OAR 253-12-020 (now OAR 213-012-0020), which limits the length of consecutive sentences (via the shift-to-I, 200%, and 400% rules), as inapplicable when sentencing crimes stemming from separate criminal episodes?
- 2. In State v. Bucholz, 317 Or 309 (1993), did the court erroneously construe former OAR 253-04-006(2) (now OAR 213-004-0006(2)) as allowing the “reconstitution” of criminal-history scores when sentencing crimes stemming from separate criminal episodes?
Admittedly, prevailing Oregon Supreme Court case law will prohibit lower courts from accepting the claims. But because the Supreme Court may accept one or both of the claims, it is crucially important to preserve them starting now.[1]
Those are the broader claims that Cuevas presents. Only if the court first rejects or declines to consider them will it address the narrow claims. The narrow ones address the question of whether separate-criminal-episode findings, for purposes of criminal-history-score “reconstitution” and for avoiding application of the guidelines‟ “shift-to-I” rule's limitation on the length of consecutive sentences, are subject to the Apprendi rule.
In Cuevas, the Court of Appeals agreed that these types of findings are subject to the Apprendi rule. The Court of Appeals also held that the trial court erred in relying on non-juried findings to reconstitute Cuevas‟s criminal-history scores and to decline to apply the shift-to-I rule. But then, the Court of Appeals finally ruled, the errors were harmless.
The Supreme Court denied Cuevas's petition for review of, among other things, the Court of Appeals's harmless-error ruling. But the court simultaneously allowed the state's petition of the Court of Appeals's ruling that the trial court (harmlessly) violated Cuevas's Sixth Amendment rights. If the Supreme Court addresses only the narrow claims, not only would the litigation not help Cuevas, but it would hurt him by making him postpone petitioning for post-conviction relief for however it long it takes the court to issue its decision.
On the other hand, if the Supreme Court addresses the broader claims, its decision could benefit Cuevas. This is because a favorable decision would end in his resentencing. Ideally, the Supreme Court will see this as a reason to address the broader claims, but there are other reasons it should do so. The main one is that by addressing the broader claims, the court could decide the case on sub-constitutional state law grounds, rather than under federal constitutional (Sixth Amendment) grounds.
I address the claim that Miller was wrongly decided in part B.1 of my Brief on the Merits. I address the claim that Bucholz was wrongly decided in part C.1 of my brief. Kyle Krohn of the Office of Public Defense Services‟s Appellate Division addresses the claim that Miller was wrongly decided in part II.a of his Brief of Amicus Curiae. Persons interested in seeing these briefs may contact me at jwmb@jessbartonlaw.com. I will forward copies in a reply.
But to preserve the claims, the essentials are as follows:
- 1. The text OAR 213-012-0020 says nothing about a separate-criminal-episode exception to its application. The exception exists solely because of the Supreme Court's decision in Miller. That decision is extra-constitutional, for it inserted into the rule an exception it omits. See ORS 174.010. The rule's context also supports a construction that there is no such exception. For example, the “single judicial proceeding” rule of former OAR 253-04-006(3); see also former OAR 253-03-001(18), which existed when the Supreme Court decided Miller, supports a construction that the rule applies when counts are permissively joined under ORS 132.560(1)(b)(A) and (C), not just when, as Miller held, they are mandatorily joined under ORS 132.560(1)(b)(B). Other context includes the guidelines‟ economy principle and related laws. See Felony Sentencing in Oregon: Guidelines, Statutes, Cases § 1-1.4.1 (Jesse Wm. Barton ed. OCDLA 3d ed. 2012). This is because abandoning the exception would “comport[] with the policy underlying the guidelines to allocate punishment 'within the limits of correctional resources[.]'” State v. Davis, 113 Or App 118, 121 (1992) (quoting former OAR 253-02-001(1) (now OAR 213-002-0001(1)), aff’d, 315 Or 484 (1993). Moreover, legislative history—guidelines commentary, see Sentencing Guidelines Implementation Manual 126-28 (1989)—further supports the construction that the rule applies whenever counts are permissively joined, not just when they are mandatorily joined. Miller should be reconsidered and overruled.
- 2. The text of OAR 213-004-0006(2) does not explicitly authorize criminal-history reconstitution. Moreover, the rule's context—again, the former single judicial proceeding, and the economy principle and related laws—and the rule's legislative history—again, guidelines commentary, see Implementation Manual at 50-51; see also Supplement Sentencing Guidelines Implementation Manual 8 (1992)[2] — militate against allowing reconstitution. Bucholz should be reconsidered and overruled.
Finally, the fact that in Cuevas the Supreme Court might decline to consider these claims should not dissuade anyone from preserving them in the lower courts. The defendant's and the amicus briefs in Cuevas put the court on notice about the flaws in Miller and Bucholz (Miller especially). If in Cuevas the court declines to consider the claims, having them preserved in countless cases in the appellate “pipeline” might persuade the court to address the claims in later, post-Cuevas cases.
- ↑ Making the claims also would avoid a repeat of what happened after Apprendi v. New Jersey, 530 US 466 (2000), but before Blakely v. Washington, 542 US 296 (2004). Post-Apprendi, a few of us urged trial counsel to argue that Apprendi applies to aggravating factors used in departure sentencing. Most others insisted that Apprendi applies only to dangerous-offender findings. Blakely clarified Apprendi in favor of the minority view(although the majority view was not wrong by much; after all, Blakely was a 5-4 decision). Because so few defense attorneys acted on the minority view, when the Court decided Blakely fewer than 10 cases were pending on appeal with preserved Apprendi claims. The Court of Appeals ordered resentencings for all of those defendants. It also ordered resentencings for the handful of other defendants with unpreserved Apprendi claims who were convicted by jury trials. But ultimately, the court ordered no relief for the hundreds of other defendants with unpreserved Apprendi claims who were convicted by bench trials or by guilty or no-contest pleas.
- ↑ Owing to its date of issuance, the Supplement Implementation Manual's commentary may not qualify as legislative history. But even then, it should be given deference. See Don’t Waste Oregon Comm. v. Energy Facility Siting Council, 320 Or 132, 142 (1994).
