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Mallory, Witherspoon and Separate Criminal Episodes

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by: Ryan • June 6, 2012 • no comments

Today's COA opinion in St v. Witherspoon constitutes an excellent and useful discussion of separate criminal episodes. It is highly recommended, and it comes as no surprise it was written by Judge Armstrong, whom I have previously praised for his pragmatic and thorough analysis of criminal episode law.

I would note a footnote in the dissent, however. This footnote doesn't reflect anything new or novel, and it's not an issue in dispute (in this case). But it repeats a principle that could have a big impact on future appellate decisions.

The legal determination that convictions for crimes arise out of separate criminal episodes is based on a factual finding that the acts that give rise to the convictions are not part of continuous and uninterrupted conduct that is so joined in time, place, and circumstance that it is directed to the accomplishment of a single criminal episode. State v. Yashin, 199 Or App 511, 514, 112 P3d 331, rev den, 339 Or 407 (2005).

Note the very simple principle that the court must make findings to support separate criminal episodes. This is entirely consistent with the Oregon Administrative Rules.

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.

So why is the Attorney General's office arguing the opposite? Why, in a number of briefs, has the AG argued that the judge must make findings that crimes from the same proceeding are from the same criminal episode in order to shorten the defendant's sentence?

Because if the trial court must make findings of separate criminal episodes in order to impose a greater sentence, then such a finding is a Blakely fact which must be submitted to a jury in some circumstances.

If this is not an argument with which you are familiar, and you're defending people accused of felonies, you can learn more about the issue here. I think proper application of the legal principle discussed in that post or this one can save a number of defendants a lot of time in prison, but it is not -- sadly -- well understood by prosecutors, judges or defense attorneys.