Huge, Huge Sentencing Win at Court of Appeals!

This wikilog article is a draft, it was not published yet.

by: Ryan • November 4, 2015 • no comments

Today, the Court of Appeals issued an incredibly important decision in St v Nesbit.

Although I had nothing to do with the argument at trial or the appeal, I take great pleasure in this opinion, separate and apart from the satisfaction that arises when the COA gets it right. My first five posts for Library of Defense were all on criminal episodes. I felt -- and still feel -- that proper argument and application of the law of criminal episodes could greatly reduce our clients' exposure, especially if they have no prior criminal history. But the issue was -- and is -- poorly understood by most participants in the criminal justice system. This new opinion -- at least for now -- clears up one significant area of confusion, and it does so in a way that will benefit a lot of defendants.

The facts of Nesbit:

Here, the historical facts presented by the record are not in dispute. Defendant was charged with three counts of aggravated theft in the first degree. For each count, the indictment alleged that defendant stole at least $10,000 from 21st Century Pacific Insurance Company (21st Century) during a distinct date range: for Count 1, between June 8, 2010 and September 20, 2010; for Count 2, between October 21, 2010 and January 18, 2011; and for Count 3, between February 4, 2011 and June 10, 2011. Defendant pleaded no contest and stipulated that the state could put on evidence to prove each of the charges beyond a reasonable

doubt.

At defendant’s sentencing hearing, the state explained, as background for the charges, that defendant filed a false claim for benefits with 21st Century for wage loss caused by an injury and that, as a result of the false claim, defendant received checks between June 8, 2010 and

June 10, 2011. The state explained that it elected to charge defendant with separate counts for the thefts based on his depositing of the checks, rather than with the single count of filing a false insurance claim. The state also chose to aggregate the thefts by date ranges during which the total value of stolen property exceeded $10,000, thus producing three separate counts of aggravated theft. Once the court pronounced the sentence on Count 1, it applied that “previous conviction” to enhance defendant’s sentence for the other convictions because of its determination that the later convictions did not arise out of the same “criminal episode” as the first.

The court's analysis and holding:

The first step in the analytical sequence by which we determine whether crimes arise from the same criminal episode requires us to consider “whether ‘a complete account of one [crime] necessarily includes details of the other’ or, framed another way, whether the crimes are ‘cross-related.’” Witherspoon, 250 Or App at 322 (quoting Potter, 236 Or App at 82-83;

State v. Boyd, 271 Or 558, 566, 533 P2d 795 (1975)) (emphasis in Potter).

It is at this step that the record prevents us from determining that the state proved that the conviction on Count 1 was a “previous conviction.” Beyond the state’s explanation that 21st Century made payments “pursuant to” defendant’s initial filing of “a single claim,” the record included the presentence investigation (PSI) report that provides no meaningful additional detail.

Although the indictment does not specify the legal theory of theft on which the charges are based, the factual basis described by the state would appear to constitute “theft by receiving,” which can be committed when a person obtains property of another by “[f]ail[ing] to correct a false impression that the person previously created or confirmed.” ORS 164.085(1)(b). If that were the theory of theft, then a complete account of why defendant committed theft each time he deposited one of the insurance checks issued to him would

necessarily include the detail that 21st Century issued the check pursuant to defendant’s initial false claim for benefits.

There is actually nothing new in the individual pieces of the court's analysis. Everything they quote is well-established (although one rule upon which they rest their analysis is being challenged by the AG's office at the Supreme Court). But the court puts them all together in a way that, I think, trial judge's often resist.

Takeaways:

(1) Crimes on different days -- even weeks apart -- can be part of one criminal episode.

(2) You need to look at whether one crime is necessary to proving the other. For example, is the defendant charged with multiple ID Thefts from multiple uses of someone else's credit card? If yes, can the state only prove it because they can prove he/she stole the credit card or wwas found with the credit card? Is the video from one uttering of the card needed to prove a subsequent uttering where there was no video?

(3) The crimes most commonly impacted by this rule are property crimes, and the benefit will most often accrue to defendants who have no prior criminal history. ID Theft, Computer Crime, UUV, Theft, are all crimes that will often be proven only be reference to related crimes on different days. But with the right facts, it's not impossible that other crimes will fall into this category, including Promoting Prostitution and Compelling Prostitution.