ID Theft, Aggravated ID Theft and Proportionality
by: Ryan • March 26, 2011 • no comments
Assume your client has already obtained enough convictions to be subject - upon his next property crime conviction - to a repeat property offender (REPO) sentence. And further assume that he commits 10 counts of ID Theft over a four month period. Further assume that each count is from a separate criminal episode. (An example of how they could be from one criminal episode can be found here.)
If he is charged with the B-felony of aggravated ID Theft (10 or more counts of ID Theft in a 6 month period), he is looking at 19 months in prison on a REPO sentence, assuming no upward departure.
But if he is charged with 10 individual counts of c-felony ID Theft, he is looking at 13 months on each count, for a total of 130 months, assuming no upward departures.
In other word, we dealing with the exact same crime(s), but one sentence is presumptively 7 times the other, based solely on the way the prosecutor has broken down the charges.
Think of it this way. Burglary in the First Degree (an A felony) is usually a combination of Criminal Trespass I and Theft. Imagine if prosecutors stopped charging Burg I, because they could get a sentence 7 times greater by just charging the misdemeanors of Criminal Trespass and Theft II.
Article I, section 16, of the Oregon Constitution provides, in relevant part, that "all penalties shall be proportioned to the offense." Does the prosecutor violate this provision by charging 10 counts of the less-serious ID Theft counts than the greater offense of Aggravated ID Theft that the legislature appeared to intend for exactly this situation.
You'd want to look first at State v. Koch, 169 Ore. App. 223 (2000). The sentence in Koch was reversed for the following reason: Because the sentences imposed exceeded the maximum sentence that defendant lawfully could have received had he been convicted of a more serious level of forgery, the sentences violated the constitutional disproportionality provision.
Here, the sentence that could be imposed on ten (or nine or 5) counts of identity theft is substantially greater than he could receive on one count of aggravated identity theft. Because aggravated identity theft requires ten counts of identity theft, a defendant who commits 5 counts of ID Theft is better off if his criminal behavior is twice as bad, so he could be charged with aggravated ID Theft. This is the very heart of the proportionality restrictions within the Oregon Constitution.
In State v. Wheeler, 343 Or 652 (2007) (en banc), prior to the Rodriguez/Buck opinions, the Oregon Supreme Court conducted a review of the history and meaning of the proportionality clause set forth in Article I, section 16, of the Oregon Constitution. Wheeler held that "the framers' concern was that the penalty imposed on a criminal defendant be 'proportioned' to the specific offense for which the defendant was convicted-that it bear the appropriate 'comparative relation' to the severity of that crime." Id. at 667.
The Court went on to note that only twice had the Court found proportionality violations, and "[b]oth cases involved situations in which the penalty for a lesser-included offense was greater than the penalty for the greater-inclusive offense." Id. at 674. The Court concluded that "the proportionality provision bars the legislature from punishing a lesser-included offense . . . more severely than the greater-inclusive offense . . . ." Id. at 677.
In Cannon v. Gladden, 281 P2d 233, 203 OR 629 (1955), the Oregon Supreme Court held that "[it] is unthinkable, and shocking to the moral sense of all reasonable men as to what is right and proper, that in this enlightened age, jurisprudence would countenance a situation where an offender . . . could be sentenced to the penitentiary for a period of not more than 20 years, whereas if he were found guilty of the lesser offense of assault with intent to commit rape he could spend the rest of his days in the bastile."
In State v. Shumway, 630 P2d 796, 291 OR 153 (1981), the Court concluded that under a statutory scheme, a defendant receives a lesser minimum sentence . . . for aggravated intentional homicide than he does for an unaggravated intentional homicide. This is in violation of Art. I, s 16 of the Oregon Constitution and [the statute ORS 163.115(5)] is invalid and cannot be applied to the defendant. . . ."
In this case, had our hypothetical defendant been accused of 10 incidents of identity theft, he would be facing a presumptive sentence of 19 months prison for a single count of aggravated identity theft. An upward departure would increase his maximum to 38 months. Instead, the presumptive sentence for each count of identity theft is 13 months, with a maximum of 26. It takes just two individual ID Thefts for the court to impose a greater sentence than one count of Aggravated ID Theft, which is defined as 10 counts of ID Theft.
This squarely violates Article I, section 16, of the Oregon Constitution, as interpreted by the cases above, because it would allow a greater sentence for the lesser-included offenses than could be obtained by a conviction of the greater offense.
