Still Relevant to Sentencing
by: Ryan • October 18, 2013 • no comments
Although the Campbell case, recently dismissed by the Oregon Supreme Court, was a double jeopardy case, the focus -- whether a PCS and a DUII were from two criminal episodes or just one -- implicates a number of sentencing issues.
The importance of "criminal episodes" has diminished since the guidelines were first promulgated. Laws such a M11 and REPO, and various changes reflecting "victim's rights" have, in many cases, made a finding of one criminal episode pretty irrelevant.
But there are still times it's a big deal. Assume Felon in Possession and Failure to Register from the same traffic stop. Assume the defendant is an A on the grid. Without upward departures, and a finding of separate criminal episodes, the defendant faces 41 months in prison. If one criminal episode, only 32 months. The difference is substantially greater if upward departures are in play. Even before you get to sentencing, this difference should impact negotiations. Yet defense attorneys, not dealing with the issue on a regular basis, are likely to miss the significance or feel powerless to do anything about it.
As many of you know, my original motivation for drafting the improper joinder demurrer was not to get the case dismissed. Rather, it was to get the prosecution to commit to a single criminal episode pre-trial (in order to justify joinder) so that the defendant could take advantage at sentencing. That is, if the state -- to defeat the demurrer -- tells the court that the Felon in Possession and the Failure to Register are from the same criminal episode, then you've just saved your client 9 months (or more) in prison just by losing the demurrer. If you've ever sacrificed a piece playing checkers, the strategy is not alien to you.
It so happens that -- with the help of attorneys throughout the state -- the demurrer has gotten stronger, so that it applies to far more indictments than I originally envisioned.
But back to sentencing. As I mentioned in an earlier post, the defense has been losing the argument for decades on criminal episodes. That is, the state has been highly successful in narrowing the scope of criminal episodes in order to get those longer sentencings. They've been so successful that, just one example, the hit (i.e., assault) in a felony hit and run has been deemed a different criminal episode than the run (i.e., failure to perform the duties of a driver.) Orchard v Mills.
Justice Walters apparently believes the appellate courts have gotten it wrong. Or perhaps more accurately, she believes there's enough ambiguity in the law to justify a plea to the legislature to explain exactly what it wants in this regard. See the last sentence of her Campbell concurrence.
But here's perhaps the most important takeaway from her concurrence. If she is right (or more precisely, if she can get at least 3 other justices to agree with her), then much of the COA case law from the last twenty years is wrong.
- "What I take from those examples is that, to be directed to the accomplishment of a single criminal objective, the two offenses need not be similar, need not have the same elements, need not be proved by the same evidence, and need not share the same statutory intent. Rather, they may be as dissimilar as robbery and murder or as robbery and rape. It also appears that a "single criminal objective" is not a narrow concept: Two or more offenses may be directed toward more than one criminal objective and still be part of the same criminal episode, as long as they reasonably can be seen to be directed toward a single overarching criminal objective." [Emphasis mine.]
Right now, the COA case law is controlling, and it will take losing the argument down below to get a chance to quote Justice Walters to the entire court. But the opportunity will arise from most of you, and if you need help figuring it out, I am -- as always -- happy to help out.
