Updated Argument on Gun Minimum

by: Ryan Scott • September 24, 2023 • no comments

Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.

I have also added a constitutional argument.

Here is the substance of the argument:

The parties are presumably in agreement that this court can only impose a single gun minimum sentence, that this is Mr. XXXXXX’s first gun minimum conviction, and that the charges arise from a single criminal episode. There can be no dispute that murder in this case is the primary offense. 213-003-0001(17) (“’Primary offense’ means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.”) As the name suggests, the primary offense is to be sentenced first. In fact, the entire sentencing guidelines is premised on the idea of the primary offense being sentenced first. When imposing sentencing on the charge of murder in the second degree with a firearm, the court must either impose the firearm minimum under ORS 161.610(4) or suspend the sentence under ORS 161.610(5)(b): If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may: . . . (b) For felonies committed on or after November 1, 1989, impose a lesser sentence in accordance with the rules of the Oregon Criminal Justice Commission.

First, self-evidently, this court cannot impose a guidelines sentence on murder, so ORS 161.610(5)(b) may not even be applicable. But even if this court were to find that ORS 161.610(5)(b) authorized the non-imposition of the 60 month sentence, even though the defendant would still serve more than 60 months, there is still a legal footprint. That is to say, by exercising this court’s discretion under ORS 161.610(5)(b), there is a still a legal effect, regardless of whether the 60 months of the defendant’s life sentence is counted towards the gun minimum. Specifically, ORS 161.610(4)(b) imposes a 10 year minimum on a subsequent firearm conviction. A court’s decision to suspend the 60-month sentence is still an application of the statute, because it still has legal effect under 161.610(4)(b:

(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:

• * *

(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.

The state asks this court to defer the gun minimum from the primary count to count 3, so that the 60-month sentence is then run consecutively to the murder. This would not be a lawful sentence.

First, of all, there is no authority for the State’s position that a sentencing court can “defer” the gun minimum on the primary count and then impose it on a subsequent count. On a first conviction for a gun minimum charge, the court can either impose the gun minimum or impose a lesser-sentence after finding mitigating factors. It does not say it can be deferred.

Furthermore, as demonstrated by the citations above, even if this court were not to count 60 months of the defendant’s murder sentence to the firearm minimum, the statute – ORS 161.640 – continues to have operational effect, since it would result in a mandatory ten-year minimum on the second gun minimum conviction. It still leaves a legal footprint. Since that footprint remains, the subsequent imposition of a gun minimum sentence on count 3 would violate the prohibition against multiple gun minimum sentences per case.

State v. Pouncey, 303 Or App 365 (2020), is not to the contrary. Defendant in that case made an argument that the case law from the Court of Appeals stated that the firearm minimum had to be imposed on the count sentenced first. That was inaccurate. Case law had not previously addressed this issue at all. Because the defendant misstated the court’s case law, the Pouncey court – somewhat curtly – dismissed the argument without addressing the merits. (“We also reject defendant's assignment of error on the firearm-minimum-sentence issue, because his argument misstates our case law regarding ORS 161.610(4).” [Emphasis added.])

In other words, it is still an open question as far as the appellate courts are concerned because the court has never been squarely presented with the issue, especially not in the way articulated this memorandum. Nevertheless, the administrative rules, statutes, case law and analysis presented above are not reasonably in dispute.

B. Article I, Section 16

Mr. Smith makes the obvious point that the exception to the firearm minimum sentence for first-time offenders under ORS 161.610(5)(b) was intended to benefit defendants. Manipulating the sentence in order to impose a longer sentence would not only violate the intent of the legislature but would violate the proportionality clause of the Oregon Constitution contained in Article I, section 16.

If this court imposes the gun minimum on the felon in possession count, it would increase the presumptive sentence from 15-18 months (6C gridblock) to 60 months. Yet the bulk of that 60 months arises out of the use of the firearm in the commission of the manslaughter, thereby enhancing his punishment with behavior already captured by the manslaughter with a firearm conviction. Viewed in the aggregate, the additional sentence would violate Article I, section 16.

In State v. Horner, 306 Or App 402, 403-04, 474 P3d 394 (2020), the Court of Appeals addressed the disproportionality of aggregate sentences. The court rejected the defendant’s argument that a sentencing court should consider the aggregate sentence in its disproportionality analysis. In doing so, the court relied on the holdings in State v. Parker, 259 Or App 547, 549, 314 P3d 980 (2013), rev den, 355 Or 380 (2014) and Real v. Nooth, 268 Or App 747, 756, 344 P3d 33, rev den, 357 Or 550, (2015). In those cases, the court “deemed it ‘not appropriate’ to consider the defendant’s disproportionality challenge to an aggregate sentence.” Horner, 306 Or App at 403. In so holding, the Horner court noted that its holding in Parker and Real, “that disproportionality challenges with respect to aggregate sentences imposed on convictions for multiple counts are not cognizable under Article I, section 16,” was supported by “little published analysis.” Id. at 404. Nonetheless, the Horner court affirmed the trial court under Parker and Real but noted that the question remains open in the Supreme Court.

The Horner court erred. The text of Oregon’s Proportionality Clause provides that “all penalties shall be proportioned to the offense.” Or Const, Art I, § 16. A “penalty” includes “the amount of time that the wrongdoer must spend in prison,” State v. Rodriguez/Buck, 347 Or 46, 60, 217 P3d 659 (2009), and the Proportionality Clause refers to “all penalties,” in the plural. Or Const, Art I, § 16. According to the text, then, courts must consider “all” of the time a defendant is required to spend in prison. Or Const, Art I, § 16

Of course, the text also refers to “the offense,” in the singular, which suggests that proportionality review might focus only “on each individual crime . . . and on the corresponding sentence imposed for that crime.” Carey-Martin, 293 Or App at 622. But the Supreme Court has already rejected that narrow reading of the text. Under the Proportionality Clause, “the offense” is limited neither to the conduct prohibited by statute, Rodriguez/Buck, 347 Or at 61–62, nor to the underlying facts of a single criminal offense. State v. Althouse, 359 Or 668, 375 P3d 475 (2016). It includes “the specific circumstances of the charged and uncharged offenses that make up [a defendant’s] criminal history.” Id. at 686; see also Rodriguez/Buck, 347 Or at 58; Carey-Martin, 293 Or App at 685–88 (Garrett, J., dissenting). Notwithstanding Horner, the state’s sentencing scheme violates the proportionality caluse of the Oregon Constitution, because reliance on a statute that was intended to give defendant’s sentencing relief in order to increase their sentence in an excessively creative way should disturb the conscious. Whatever the goals of Measure 11 and the sentencing guidelines and the sentencing statute, using any part of it in a way that was not intended in order to enhance a sentence undermines both legislative intent and the cause of justice.