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Guilty Pleas, Open Sentencing and Criminal Episodes

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This wikilog article is a draft, it was not published yet.

by: Ryan • June 1, 2011 • no comments

Assume a defendant pleads to all the counts in the indictment and "goes open sentencing." If there is a dispute over whether or not there are separate criminal episodes or whether a sufficient pause exists, what can the trial court rely on to make that determination?

First and foremost, the trial court can rely on any admissions by the defendant, either contained in the plea petition or made orally. This is one reason the defense attorney needs to take great care in crafting the "admissions" regarding what the defendant did - a defense attorney who goes beyond what he needs to while filling out the plea petition is risking an admission that could be used against his client

In St v. McConville, the defendant plead to Burglary and two counts of Theft. The defendant argued that the two thefts merged into a single conviction, because they (1) occurred during the same criminal episode, (2) involved the same victim, and (3) were the same crime. However, the state argued that there should be two separate convictions, under ORS 161.067(3). To satisfy the requirements of ORS 161.067(3), the state had to show a sufficient pause between the two thefts. The burden - as the COA would subsequently note - was on the state.

The McConville court described what in fact the state must prove in order to prevent merger in this situation:

As we have recently explained, a "sufficient pause" is a "temporary or brief cessation of a defendant's criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his * * * criminal intent." State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010). Further, in State v. Barnum, 333 Or 297, 303, 39 P3d 178 (2002), overruled in part on other grounds by State v. White, 341 Or 624, 147 P3d 313 (2006), the Oregon Supreme Court noted that, for there to be "'a sufficient pause in the defendant's criminal conduct[,]' * * * one crime must end before another begins."

Although the paragraph is clear, I am afraid that judges and prosecutors will consider it sufficient to show that "one crime must end before another begins." Reading the full paragraph, it should be evident that in addition to one crime starting after the other must end, the state must also show - and the judge must find - a "cessation" of the criminal conduct that is long enough that it "affords the defendant an opportunity to renounce his intent." In other words, one punch would necessarily begin only after the previous punch ends, but there often won't be an opportunity between the two to pause and reflect.

So, getting back to the facts of McConville, was there enough evidence to support a finding of a sufficient pause? Remember, it was a guilty plea, and even though the record was supplemented with witness testimony, the record was "deficient."

The McConville court described the situation as follows, relying not just on the plea petition but also the testimony of one of the victims and the police:

Here, defendant pleaded guilty to two counts of first-degree theft-one predicated on the taking of the laptop computer, and the other predicated on the taking of the jewelry. In order to conclude that there was a "sufficient pause" between the two thefts, the trial court must have implicitly found, at minimum, that defendant's theft of the jewelry (Count 3) had "ended" before his theft of the laptop computer (Count 2) "began." See Huffman, 234 Or App at 187. However, there is no evidence in the record supporting such an inference. That is so because (a) as noted, Count 3 pertained to, and encompassed, the taking of at least four pieces of jewelry-viz., the two wedding rings and the bracelet from S's person in her bedroom and the piece of jewelry from the microwave on the first floor; and (b) there is no basis in this record for the court, as trier of fact with respect to merger, to determine whether the taking of the piece of jewelry from the top of the microwave occurred before or after the taking of the laptop, which is the object of Count 2. In concrete terms, if defendant first took the piece of jewelry from the microwave and then proceeded to S's bedroom, where he took the jewelry from her person before taking the laptop, there might have been the requisite "sufficient pause" between the completed theft of the jewelry and the theft of the laptop to preclude merger; conversely, if defendant took the jewelry from S's person and then took the laptop and then proceeded downstairs to where he took the piece of jewelry from the top of the microwave, thus completing the first-degree theft charged in Count 3 at that point, the theft of the jewelry would not have been completed before he took the laptop. On this record, it is impossible to know which of those two scenarios is correct. Here, as in Huffman, any "factual inference in favor of the state" in that regard would partake of sheer speculation. Huffman, 234 Or App at 187 n 6.

Would the court's conclusion have been different if there was only one piece of jewelry taken and that it was stored on a different floor than the laptop (inevitably requiring time between the taking one item and moving to the location of the other)? Probably. But how would such facts have gotten into evidence in a guilty plea? You need a witness. There were witnesses who testified at the McConville sentencing hearing (and were presumably subject to cross-examination, although one could see how a defense attorney might decline the invitation). But some facts simply won't be knowable, as was the case here.

Such a mini-trial, post-plea, might be enough in the right case to support a finding of a sufficient pause, which no court has yet said is a jury question under Blakely. (But see this post.) But what about a finding of "separate criminal episodes," which, in fact, is sometimes a jury question?

Let's look at the analogous issue of juvenile adjudications. The existence of juvenile adjudications is always a jury question if not admitted to by the defendant (and no jury waiver). In State v. Lafferty, the defendant plead guilty, and it was open-sentencing, but he did not admit to juvenile priors. The following is taken from Greg Rapkoch's summary of the opinion:

Even though the state provided adequate notice of its intent to rely on juvenile adjudication as an "enhancement fact," the trial court correctly concluded that State v. Harris, 339 Or. 157 (2002) precluded the use of that adjudication at sentencing. In so ruling, the COA rejected the State's argument that guilty pleas entered following the State's compliance with the notice provisions of ORS 136.765 create an "implied waiver" of the right to a jury trial on enhancement factors. In order for a defendant's consent to waiver of a jury trial on enhancement facts to be valid, the trial court must obtain a written waiver specifically addressing that right; however, the trial court's failure to obtain such a waiver does not warrant remand to allow the State a second opportunity to prove enhancement facts.

Therefore, in those situations where a finding of separate criminal episodes is a jury question (i.e., when the dates in the indictment overlap), the defendant has not admitted to separate criminal episodes in the plea petition or in a colloquy with the trial court, and there has been no express waiver by the defendant to a jury trial on that issue, the judge is foreclosed from making the finding of separate criminal episodes herself.

What about those situations where a finding of separate criminal episodes is not a jury question, e.g., when the dates in the indictment do not overlap? Arguably, the trial court could simply base a finding of separate criminal episodes on the fact that the crimes were alleged to have been committed on different dates. Where this gets tricky, however, is when the crimes are not date-specific. For example, possession is a continuing crime that can last weeks or months. State v. Cantrell. While this post generally has been about taking advantage of a deficient record, there may be situations where it would have been better to get the facts into evidence, because the different dates in the indictment do not tell the whole story. You could of course subpoena witnesses, as in McConville, or subpoena witnesses, but why not just have a bench trial?

Similarly, if you are arguing that, say, an unemployment-insurance scam that lasted years, and has been broken down into different counts but nevertheless involved numerous allegations that cross-relate , the trial court might have been convinced that it was one criminal episode if the facts were in evidence and the proper arguments made. But a plea might foreclose some of those arguments, absent some effort - and perhaps substantial effort - to supplement the record.

In sum, there are many situations where it's better to minimize the number of facts in evidence, and a creative lawyer might recognize the opportunity to take advantage of a boilerplate indictment. Given the public nature of this post, I have not been entirely forthcoming with strategic ideas that I have percolating in the back of my brain on this topic, but if you're a defense lawyer, and you've got the kind of situation where pleading to the indictment could offer some of the advantages above, then e-mail me the indictment and let's talk. Ryan@ScottHugginsLaw.com.