Chance to get Miller and Bucholz overruled?
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]
Those are the broader claims that Cuevas presents. Only if the court first rejects or declines to consider them will it address the narrow claims. The narrow ones address the question of whether separate-criminal-episode findings, for purposes of criminal-history-score “reconstitution” and for avoiding application of the guidelines‟ “shift-to-I” rule‟s limitation on the length of consecutive sentences, are subject to the Apprendi rule.
In Cuevas, the Court of Appeals agreed that these types of findings are subject to the Apprendi rule. The Court of Appeals also held that the trial court erred in relying on non-juried findings to reconstitute Cuevas‟s criminal-history scores and to decline to apply the shift-to-I rule. But then, the Court of Appeals finally ruled, the errors were harmless.
The Supreme Court denied Cuevas‟s petition for review of, among other things, the Court of Appeals‟s harmless-error ruling. But the court simultaneously allowed the state‟s petition of the Court of Appeals‟s ruling that the trial court (harmlessly) violated Cuevas‟s Sixth Amendment rights. If the Supreme Court addresses only the narrow claims, not only would the litigation not help Cuevas, but it would hurt him by making him postpone petitioning for post-conviction relief for however it long it takes the court to issue its decision.
On the other hand, if the Supreme Court addresses the broader claims, its decision could benefit Cuevas. This is because a favorable decision would end in his resentencing. Ideally, the Supreme Court will see this as a reason to address the broader claims, but there are other reasons it should do so. The main one is that by addressing the broader claims, the court could decide the case on sub-constitutional state law grounds, rather than under federal constitutional (Sixth Amendment) grounds.
I address the claim that Miller was wrongly decided in part B.1 of my Brief on the Merits. I address the claim that Bucholz was wrongly decided in part C.1 of my brief. Kyle Krohn of the Office of Public Defense Services‟s Appellate Division addresses the claim that Miller was wrongly decided in part II.a of his Brief of Amicus Curiae. Persons interested in seeing these briefs may contact me at jwmb@jessbartonlaw.com. I will forward copies in a reply.
- ↑ 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.
