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Message to a Particular Prosecutor

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by: Ryan • March 31, 2011 • no comments

Dear Prosecutor,

On my page, I have a series of posts on criminal episodes and why I think that ignorance of the rules surrounding criminal episodes has lead to some defendants serving more time than the law allows. This ignorance isn't limited to one side. Defense lawyers, prosecutors, judges, it seems like almost everyone misunderstands at least some of the rules surrounding criminal episodes.

Part of this is simply a result of how complicated sentencing law has become in the past twenty years. It's not just criminal law. Every aspect of life is more complicated, even TV. In the 70s, we had Starsky and Hutch. This decade, we had The Wire. We live in a world where even the vast wasteland requires attention, concentration and focus. Otherwise, you won't know what's going on.

But sometimes it's not just laziness. Sometimes, my dear prosecutor, you are being willfully ignorant. You pretend that the law says X, even though I proved to you and the court the last time we had this argument, that the law does NOT say X. Are you just in the habit sneaking illegal sentences past defense attorneys who don't know any better?

In my experience, the most common example of this willful ignorance occurs when we are sentencing on multiple felonies from the same criminal episode. You persist in claiming that the defendant's criminal history score reconstitutes on the second, third and fourth offense, even though all the crimes, as I said, arise from just one criminal episode. You say it's because there are separate victims. Or you may subtly re-phrase your argument to claim that different victims equals different criminal episodes.

It's not true. You know it's not true. It's never been true.

If you want to increase a defendant's presumptive sentence, the burden is on you. Show me a single piece of authority that says it's true. Show me an OAR, a statue, a case. You can't.

But I can.

The law in Oregon is this: criminal history only reconstitutes if there is more than one criminal episode. And the number of victims has NO impact on the number of criminal episodes.

See State v. Allen. In Allen, the defendant caused a car accident. He was convicted of numerous counts, including multiple assaults. Why multiple assaults? More than one person was injured in the car accident. Ergo, more than one victim. The trial judge reconstituted the defendant's criminal history after each felony. The Court of Appeals decision addresses a number of the state's arguments in support of the trial court, but by the end of the opinion it finally gets around to the state's final argument.

"We turn, then, to the state's alternative argument that, even under Bucholz and Miller, the trial court did not err in this case, because the crimes in this case arose out of separate criminal episodes. ORS 131.505(4) defines 'criminal episode' as 'continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.' n this case, the trial court found that the several charges arose out of a single criminal episode. The state does not cross-assign error to the trial court's finding. In any event, we conclude that the several counts at issue on appeal, each of which arose out of a single automobile accident, clearly arose out of a single criminal episode."

State v. Allen, 151 Or App 281, 291-292 (1997)

The Court of Appeals reversed the trial judge and ordered that, when the case goes back for re-sentencing, the criminal history should not reconstitute with each sentence. Period. End of discussion.

If things have changed since 1997, show me the authority. Until then, send me plea offers that reflect what the law is, not what you think it should be.


Ryan Scott

P.S. As long as we are on the subject, your offers on major property cases tend to ignore that ORS 137.717(5) exists. I'm not sure why this is, since you've been prosecuting property crimes for years now, and Repeat Property Offender Sentences are your bread and butter. There's no way you don't know about this provision.

"(5)(a) For a crime committed on or after November 1, 1989, a conviction is considered to have occurred upon the pronouncement of sentence in open court. However, when sentences are imposed for two or more convictions arising out of the same conduct or criminal episode, none of the convictions is considered to have occurred prior to any of the other convictions arising out of the same conduct or criminal episode."

So please stop sending me prison plea offers, based on the REPO statute, when my client isn't subject to REPO already and all the new crimes arise from the same criminal episode. The rule has not changed: if she isn't subject to REPO in count 1, and it's one criminal episode, then she isn't subject to REPO on any subsequent counts. You know this.