Another Subtle Hint from the Court of Appeals?
by: Ryan • September 20, 2011 • no comments
I have written almost a dozen posts about the meaning of "criminal episode." Not bad, I think, for a topic that can be pretty dry. But there's an inverse correlation between the sexiness of the issue and its impact on our clients' lives. As I've mentioned before, I think there are a high percentage of unlawful prison sentences that are imposed because too often no one in the court room - defense attorney, prosecutor or judge - fully understands how to identify separate criminal episodes and the impact of a single criminal episode on sentencing.
In a case out today from the Court of Appeals, it's quite fortunate that the defense attorney did understand the issue. In State v. Bryant, the trial court had reconstituted the defendant's criminal history after two convictions, thereby imposing a greater sentence on the 3rd. But all three counts were obviously from the same criminal episode, and the AG's office rightly conceded that the criminal history score should not have been reconstituted.
It was in this opinion that Judge Brewer made the following comment:
As we recently observed, the term "criminal episode" appears in many different contexts, and its meaning can vary with the context in which it is used. State v. Potter, 245 Or App 1, 4, ___ P3d ___ (2011).
As I mentioned when Potter came out, I think the COA is signaling an awareness that the criminal episode case law is all over the map. The Court hasn't even settled on a consistent analysis that it should be using. But the Court can only clean up the case law if the issues are properly preserved, and I think these two comments - which are arguably superfluous to the opinions themselves - are invitations from the Court for defense attorneys to start doing so.
One additional observation about today's opinion. Two counts involved one victim, a third count involved a separate victim. The fact that there were two separate victims didn't stop the AG conceding that these charges arose from one criminal episode and that the criminal history score shouldn't be reconstituted. I mention this for those of you who may remember my rant on this topic.
