Two Post-Poston Opportunities
AMENDED: See below
Situation #1: the state alleges in the indictment a bullshit reason why the counts should be joined. But since a demurrer only looks at the face of the indictment, not the facts of the case, a demurrer would certainly fail. What to do? Answer: motion for mistrial after the state rests. And yes, there's a case on point.
Situation #2: the prosecutor, over-learning the lesson of State v. Poston, lazily alleges all three bases for joinder in the indictment. And then at sentencing, it tries to claim that, contrary to the boilerplate language in the indictment, the counts aren't from the same criminal episode. Answer: equitable estoppel. State can't take opposing legal positions simply because it advances their interest to do so at the time.
It was brought to my attention that the equitable estoppel argument lost in 2011 in a case called State v. Bush. The opinion lays out the Oregon analysis:
- The doctrine of equitable estoppel is "employed to prevent one from proving an important fact to be something other than what by act or omission he has led another party justifiably to believe." Stovall v. Sally Salmon Seafood, 306 Or. 25, 33, 757, *376 P.2d 410 (1988) (quoting Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 689, 669 P.2d 1132 (1983)). In order to establish equitable estoppel, a party must offer evidence from which the trier of fact could find that:
- "(1) a false representation (albeit an innocent one) was made (2) by someone having knowledge of the facts to (3) one who was ignorant of the truth, (4) that the statement was made with the intention that it be acted upon by the [ignorant party] and (5) that [the ignorant party] acted upon it." Paulson v. Western Life Insurance Co., 292 Or. 38, 52-53, 636 P.2d 935 (1981).
The Bush court then held that the requirements were not met:
- Assuming without deciding that the doctrine might apply in some circumstances, defendant has not proved it here. Defendant does not contend that he was ignorant of the truth as to whether and which of the charged offenses arose from the same criminal episode(s). Nor has defendant made a convincing argument that he was prejudiced by the representation that the offenses arose from the same act or transaction, if it was false. If he had believed that he was prejudiced by improperly joined charges, defendant was free to move to sever the charges under ORS 132.560(3) ("If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."). Instead, for whatever reason, he did not complain until sentencing. In short, defendant has not shown that he was ignorant of the truth or that he was prejudiced by the state's representation. He has not proved equitable estoppel.
Does this foreclose the argument now? Perhaps not. The opinion was written pre-Poston, of course, and therefore the defendant would not have made the argument that the claim within the indictment of one criminal episode stopped him from filing a demurrer. (And in fact it would have stopped him, because regardless of the facts, that claim on the face of the indictment would have made the indictment immune to a Poston demurrer.)
Now perhaps a defendant could file a motion to sever, if the defendant believes it's not in fact one criminal episode. But this sets up a serious dilemma. If the prosecutor believes it's one criminal episode, then why get a court to convince her otherwise and thus subject the defendant to a greater sentence.
Compounding the problem is that the current state of the law on criminal episodes is a mess. Here is a quote from a draft of a PFR I'll be filing within a couple of weeks:
- Determining whether multiple crimes arise out of one or more criminal episodes is arguably the most difficult analysis that the criminal bar and trial courts must grapple with. It can also be one of the most consequential. The finding of a separate criminal episode will frequently remove the last limitation on consecutive sentences, as well as increasing the presumptive sentence every time the criminal history score is reconstituted. This case is a good example. Had the same images been found in the defendant’s closet, in the form of photographs, videotape or 8mm film (the kind of facts which would have likely existed at the time the sentencing guidelines were adopted), he would have likely faced probation. But the vast improvements in the capacity of individuals to anonymously download a near-infinite number of images, in combination with the legal analysis adopted by the Court of Appeals, that same defendant can now face lifetime imprisonment. While a defendant might never face a thousand charges based on a thousand images, the current scheme allows prosecutors to pick and choose among images, to make sure they were downloaded on different dates, in order to achieve – in this case – a fifteen -year sentence on just fifteen different images.
- The existence of one or more criminal episodes can carry a significance even greater than life imprisonment. When a defendant is charged with aggravated murder based on the murder of two people during one criminal episode, it can mean the difference between a life sentence and a capital one.
- The complexity – and the inconsistency in the case law – inherent in identifying one or more criminal episodes places a particularly onerous burden on defense attorneys. It is common – far more common than this court might appreciate, because the burden leads to cases resolving long before they ascend the appellate ladder – that defense attorneys simply cannot tell their clients with a reasonable degree of certainty what the maximum sentence the defendant would face if he went to trial, given that the sentence may depend on the application of principles that are sufficiently broad and vague to permit any conclusion. Consequently, defendants must often go into plea negotiations assuming a maximum sentence decades longer than a fair application of the law would require. For two reasons, this is a dilemma qualitatively different than the usual unknowns, such as whether the trial judge might impose consecutive sentences, for example, or whether counts merge, that are a typical part of negotiations. First, the legal analysis in determining separate criminal episodes is, in many cases, impossible for even an experienced defense attorney to predict with confidence and, secondly, the consequence of being wrong is substantially greater.
- It is self-evident that a defendant is more likely – innocent or not -- to forego trial and/or agree to an unlawful sentence if he cannot tell whether, after trial, he could get five years in prison or thirty.
- If this court is inclined to view the description above as hyperbole, one only needs to look at the wide range of opinions from the Court of Appeals in just the past few years.
- In Orchard v. Mills, 247 Or App 355 (2011)_, the Court of Appeals relied heavily on an interpretation of “single criminal objective” that the Court of Appeals set forth in State v. Sparks, ___ Or App ___ (20xx). The Orchard Court described the holding in Sparks as follows:
- As discussed, ORS 131.505(4) defines a "criminal episode" as "continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective." (Emphasis added.) In Sparks, where the defendant unlawfully entered and committed crimes in three separate motel rooms, we also focused on the defendant's criminal objective:
- "In [Sparks], the circumstances of defendant's conduct demonstrate that he had to have formed a discrete criminal objective each time he made an unlawful entry into one of the motel rooms."
- 150 Or App at 297 (emphasis added in Orchard).
- The Orchard Court relied on Sparks to find that a vehicular assault and the hit-and-run from that assault were from two separate criminal episodes, because each had a distinct criminal objective. But the Orchard Court also found that the possession of firearms obtained on different days constituted separate criminal episodes. While it did not explicitly mention Sparks in this portion of its opinion, it implicitly referenced the Sparks analysis when it rejected the defendant’s argument that simultaneous possession constituted one criminal episode:
- Again, however, under ORS 131.505(4), the ultimate consideration is whether the conduct in question was directed to the accomplishment of a single criminal objective.
- Orchard at ____. [Emphasis added.]
- In contrast to Orchard, in State v. Tooley, ___ Or App ___ (2015), the Court of Appeals explicitly rejected the single criminal objective analysis from Sparks that the Orchard court relied on.
- However, we have already rejected similar efforts to utilize those cases [Sparks and Hathaway] to circumscribe the scope of the definition of “single criminal objective” in ORS 131.505(4). See Burns, 259 Or App at 428-29. In Burns, we specifically rejected the same argument that defendant advances here as “not consonant with * * * the definition of ‘criminal episode.’ ” Id. at 429. It is also at odds with the import of Witherspoon and the legislative history, neither of which defendant attempts to distinguish.
- Tooley at ___.
- One could interpret the above quote from Tooley as a clear and compelling indication that the Court of Appeals had overruled Sparks and, by implication, Orchard v. Mills, which relied entirely on the Sparks analysis. Nevertheless, in the case at bar, the lower court relied heavily on Orchard v. Mills for its conclusion that there were multiple criminal episodes.
- Second, a recent decision of this court dictates the outcome in this case. In Orchard v. Mills, 247 Or App 355, 270 P3d 309 (2011), rev den, 352 Or 33 (2012), a post-conviction petitioner who had been convicted of seven counts of felon in possession of a firearm (FIP) argued that his trial counsel should have objected to the trial court’s calculation of his criminal history score. In the petitioner’s view, because he possessed the weapons simultaneously—and they “were found in the same place at the same time”—it followed that the crimes were part of a single criminal episode. Id. at 360. We rejected that argument, holding that the “key consideration [was] whether the guns were acquired by separate acts.” Id. at 361.
- Dulfu at ____.
- In sum, a trial court would be equally justified – if relying exclusively on recent Court of Appeals precedent -- in following the Orchard/Sparks analysis on “single criminal objective” or relying on the Burns/Tooley analysis to reject it, leaving a defendant in many cases completely at sea in attempting to understand and calculate the worst that could happen if he were to exercise his right to trial.
- The reliance of the Dulfu court on a case that relied in turn on a Court of Appeals opinion that the lower court just disavowed last year demonstrates that the Court of Appeals is not slowly working toward a unified and consistent set of principles that would guide the bench and bar on a particularly complex issue. Rather, it demonstrates that the Court of Appeals is bouncing between inconsistent and inapposite principles . There is a desperate need for guidance from a higher court.