Chance to get Miller and Bucholz overruled?
From OCDLA Library of Defense
This wikilog article is a draft, it was not published yet.
by: Jessbarton • December 29, 2014 • no comments
On January 13, 2015, I‟ll be submitting oral arguments in State v. Cuevas, 263 Or App 94, 326 P3d 1242, rev allowed, 356 Or 163 (2014). Initially set to address a pair of narrow claims, the case now presents a pair of related but much broader claims. Information about the claims is provided below, but the questions the claims present are:
- 1. In State v. Miller, 317 Or 297, 855 P2d 1093 (1993), did the Supreme Court erroneously construe former OAR 253-12-020 (now OAR 213-012-0020), which limits the length of consecutive sentences (via the shift-to-I, 200%, and 400% rules), as inapplicable when sentencing crimes stemming from separate criminal episodes?
- 2. In State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), did the court erroneously construe former OAR 253-04-006(2) (now OAR 213-004-0006(2)) as allowing the “reconstitution” of criminal-history scores when sentencing crimes stemming from separate criminal episodes?
Admittedly, prevailing Oregon Supreme Court case law will prohibit lower courts from accepting the claims. But because the Supreme Court may accept one or both of the claims, it is crucially important to preserve them starting now.[1]
- ↑ Making the claims also would avoid a repeat of what happened after Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), but before Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Post-Apprendi, a few of us urged trial counsel to argue that Apprendi applies to aggravating factors used in departure sentencing. Most others insisted that Apprendi applies only to dangerous-offender findings. Blakely clarified Apprendi in favor of the minority view(although the majority view was not wrong by much; after all, Blakely was a 5-4 decision). Because so few defense attorneys acted on the minority view, when the Court decided Blakely fewer than 10 cases were pending on appeal with preserved Apprendi claims. The Court of Appeals ordered resentencings for all of those defendants. It also ordered resentencings for the handful of other defendants with unpreserved Apprendi claims who were convicted by jury trials. But ultimately, the court ordered no relief for the hundreds of other defendants with unpreserved Apprendi claims who were convicted by bench trials or by guilty or no-contest pleas.
