This post is going to seem highly technical and trivial, but I ask for your patience. Once I highlight what may seem like a very unimportant rule about sentencing, I'll be able to show why it has an outsized constitutional impact.
Let's start with a sentencing question for all of you who handle felonies. It's actually fairly simple.
Assume the following facts. Defendant is convicted of two counts of Assault III, both having occurred the same night. Prior to this, defendant had no criminal history. You don't know anything about the facts surrounding the charges. You don't even know if they occurred simultaneously or hours apart. Defendant is a 6I for count 1.
Here's the question: what is the defendant's grid score for count 2? Is he 6I or is he 6D?
I can hear your complaints now. You don't know. And the reason you don't know is that you don't know if the two Assault IIIs arise out of the same criminal episode. If the same criminal episode, he's a 6I on count 2. If separate criminal episodes, he's a 6D. And if you don't know how many criminal episodes, how can you answer the question?
I submit you do know the answer. He's a 6I. The reason is, it is the state's burden to prove criminal history for the purpose of sentencing guidelines.
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.")
If the burden is on the state, and the state cannot show that these crimes are from separate criminal episodes, then the state has not met its burden to show that the first assault III is part of the defendant's criminal history for the purpose of calculating defendant's criminal history.
Okay, you might be thinking this is trivial, because convincing a judge whether two or more crimes arose from separate criminal episodes never hinged on whose burden it was. But the allocation of burden makes a big difference in one very important way: if it's the state's burden to prove that the crimes are from separate criminal episodes, then the finding of separate criminal episodes is a Blakely factor. This is because such a finding increases the defendant's sentence, and therefore, it must be proven to the jury if it can't be determined from the indictment or the plea petition. If the jury was never asked whether the crimes arose from separate criminal episodes, then the judge is powerless to make that finding himself.
On the other hand, if it's the defendant's burden to prove the crimes are from the same criminal episode, then such a finding would reduce the defendant's sentence, and it is not a Blakely factor.
And here's the kicker. I've now read two briefs from the Oregon AG's office which contest the defendant's argument that a finding of separate criminal episodes is a Blakely factor. Those two briefs make the same legal argument in opposition. And it's the only legal argument the state makes: the burden is on the defendant to show the crimes arise from one criminal episode.
Again, that's it. That's the only argument that the state -- at the appellate level -- has mustered against what I have long called the Mallory rule, based on State v. Mallory. If I am correct -- as I lay out in the first half of this post -- that the burden is on the state to prove separate criminal episodes, then the state has no other objection to the claim that such a finding is a Blakely fact.
And if it's a Blakely fact (assuming that the dates in the indictment overlap), that means the state has to give written notice within 60 days of arraignment or 15 days before trial (whichever is earlier) of an intent to prove separate criminal episodes. It means that if they don't give notice, and they don't prove the fact to a jury, the defendant's criminal history score won't reconstitute, and he won't become REPO for subsequent counts if he's not REPO for the first count. Lots and lots of good stuff. (Plenty of Mallory posts on this website that discuss other aspects of this rule.)