Cuevas, Prison Time, and Money

Revision as of 10:58, January 21, 2016

On November 13, 2015, the Oregon Supreme Court issued its fairly long-awaited decision in State v. Cuevas, 358 Or 147 (2015). By a bare, four-member majority, the court reversed the Court of Appeals rulings that separate-criminal-episode findings, which allow criminal-history reconstitution and avoidance of application of the Felony Sentencing Guidelines’s limitations on the lengths of consecutive sentences, are subject to the Sixth Amendment requirements of Apprendi v. New Jersey, 530 US 466 (2000).

However, the court’s three-member dissent—which mysteriously was posted on line about four hours after the majority opinion was posted—agreed that the infamous case authorizing criminal-history reconstitution, State v. Bucholz, 317 Or 309 (1993), was wrongly decided and should be overruled.

Justice Walters, joined by Justice Landau and Justice Brewer, wrote for the dissent. She said,

"This court was wrong in Bucholz. Its characterization of the commentary and legislative history does not fairly represent those sources, which spoke directly to the issue presented in that case. Further, the court ignored the rule’s reference to ‘crimes’ (plural) of conviction. This case requires that we reconsider Bucholz and correct that error.”

Cuevas, 358 Or at 172 (Walters, J., dissenting).

This is the most profound sentencing guidelines decision since September 2004 when, shortly after the Apprendi-clarification decision of Blakely v. Washington, 542 US 296 (2004), the Court of Appeals decided State v. Sawatzky, 195 Or App 159 (2004), and agreed that aggravating factors are subject to the Apprendi rule’s jury-trial requirements.

Making Cuevas particularly profound is the fact that one member of the bare-majority, Virginia Linder, recently retired, and Governor Brown appointed now former Court of Appeals Judge Lynn Nakamoto as former Justice Linder’s successor. This creates the possibility that in a new case, Justice Nakamoto might join the three Cuevas dissenters to overrule Bucholz. Such an overruling would save clients substantial incarceration time, and the state millions of dollars in largely pointless imprisonment.

Justice Nakamoto replacing former Justice Linder also creates the possibility that in a new case, the court may address the other issue raised in Cuevas: Whether Bucholz’s infamous companion, State v. Miller, 317 Or 297 (1993), also should be overruled. Such an overruling would eliminate the judicially created separate-episode exception to application of the guidelines’ limitations on the lengthy of consecutive sentences (the shift-to-I, 200%, and 400% rules). With or without an overruling of Bucholz (but especially with), an overruling of Miller also would save clients substantial incarceration time, and the state millions of dollars in largely pointless imprisonment.

The situation the defense bar now faces is similar to the one it faced in June 2000, after the United States Supreme Court decided Apprendi. Notwithstanding various OCDLA members’ efforts to persuade criminal-defense lawyers to raise Apprendi objections to non-juried aggravating factors, almost no one did. Consequently, instead of hundreds of cases being in the appellate “pipeline” when Blakely issued in June 2004, and which likely would have led to more cases being remanded for resentencing than prosecutors could have handled without making “sweet” plea offers, a relatively small number of cases were remanded. Consequently, the opportunity to save hundreds of clients substantial incarceration time, and the state tens or even hundreds of millions of dollars in largely pointless imprisonment, was lost.

There’s no more of a guarantee that the newly composed Oregon Supreme Court will overrule Bucholz or Miller than there was a guarantee that in June 2004, the Court would rule that with the single exception of the Kansas Supreme Court, every intervening state court decision interpreting Apprendi got it wrong. E.g., State v. Dilts I, 336 Or 158 (2003), vacated sub nom, Dilts v. Oregon, 542 US 934 (2004) (mem).

But the lack of a guarantee is beside the point. By making the right objections, the trial bar will create the opportunity to see Bucholz or Miller or both overruled. A February 25, 2016 webinar on the subject will provide OCDLA members the basic information they need to do just that, and thereby to save clients substantial incarceration time, and the state tens or even hundreds of millions of dollars in largely pointless imprisonment.

Meanwhile, attorneys wishing to get on top of the issues now should see Jesse Wm. Barton, Sentencing: Flaws in Miller/Bucholz, The Oregon Defense Attorney (Jan/Feb/Mar 2015), for the basic information they will need.