State v. Ice

• Decision Date: 11 October 2007
• Docket Number: CA A111668.,CC 99C49779.,SC S52248.
• Citation: 343 Or. 248,170 P.3d 1049
• Parties: STATE of Oregon, Respondent on Review, v. Thomas Eugene ICE, Petitioner on Review.
• Court: Oregon Supreme Court

170 P.3d 1049

343 Or. 248

STATE of Oregon, Respondent on Review, v. Thomas Eugene ICE, Petitioner on Review.

CC 99C49779.

CA A111668.

SC S52248.

Supreme Court of Oregon.

Argued and Submitted November 1, 2006.

Decided October 11, 2007.

On review from the Court of Appeals.^*

Ernest G. Lannet, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before DE MUNIZ, Chief Justice, and CARSON, GILLETTE, DURHAM, BALMER, KISTLER, and WALTERS, Justices.^**

GILLETTE, J.

The question in this criminal case is whether the state or federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences. Over defendant's objection, the trial court in the present case imposed consecutive sentences based on its own factual findings. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Ice, 178 Or.App. 415, 39 P.3d 291 (2001). We allowed defendant's petition for review and now reverse the decision of the Court of Appeals and the judgment of the trial court.

Defendant managed an apartment complex where the 11-year-old victim, her mother, and younger brother lived. On two occasions, defendant entered into the family's apartment at night. On each occasion, defendant went into the victim's bedroom and touched her breasts and then her vagina.

Based on those acts, a grand jury indicted defendant for committing six crimes. The indictment alleged that defendant twice committed first-degree burglary by entering the victim's apartment with the intent to commit sexual abuse. The indictment also alleged that, during each burglary, defendant committed two acts of first-degree sexual abuse; specifically, the indictment alleged that, on each occasion, defendant touched the victim's breasts and then her vagina. Defendant pleaded not guilty. The case was tried to a jury. After considering the evidence, the jury convicted defendant of all six charges.

Before the sentencing hearing, the parties submitted sentencing memoranda. Regarding the length of the sentences, the state recommended that the trial court impose enhanced or upward departure sentences on the two burglary convictions and also on the two sexual abuse convictions based on touching the victim's vagina. It did not argue that the court should impose departure sentences on the two sexual abuse convictions based on touching the victim's breasts. With respect to the separate question of whether the sentences should run concurrently or consecutively, the state contended that there were two separate criminal episodes based on the two burglaries and that the sentences arising out of each of those criminal episodes should run consecutively to each other. The state also argued that, within each of the two criminal episodes, the sentence for sexual abuse based on touching the victim's vagina should run consecutively to the sentence for burglary. It recommended, however, that the sentences for sexual abuse based on touching the victim's breasts should run concurrently with the sentences for sexual abuse based on touching the victim's vagina.

In his sentencing memorandum, defendant did not address whether the court should impose departure sentences. Regarding consecutive sentences, defendant agreed that there were two criminal episodes and that ORS 137.123(2) would permit the trial court to impose the sentences arising out of the second episode consecutively to the sentences arising out of the first episode. Defendant noted, however (and the state agreed), that the trial court could impose consecutive sentences within each episode only if it made certain factual findings set out in ORS 137.123(5). Defendant did not argue, in his sentencing memorandum, that either the state or federal constitution required a jury to make those findings. Defendant did argue, however, that the two sexual abuse convictions that occurred within each criminal episode should merge and that, to the extent that there might be a factual basis for finding that merger was not appropriate, the state constitution required a jury to make that factual finding.

After defendant filed his sentencing memorandum but before the sentencing hearing, the United States Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant then filed a supplemental memorandum bringing that decision to the trial court's attention. The memorandum recited the holding in that case and then stated, "Accordingly, it is the province of the jury to determine which facts constitute a crime, and the jury must also consider any factors which may result in a sentence more severe than contemplated by statute." Defendant's memorandum did not purport to explain precisely how Apprendi applied to the various sentencing decisions before the trial court. More specifically, defendant did not argue that Apprendi applied to departure sentences; that is, he did not argue that, as the United States Supreme Court held four years later in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the rule in Apprendi applied not only to sentences that exceeded the statutory maximum, but also to departure sentences that exceeded guidelines sentences but stayed within the statutory maximum.

At the sentencing hearing, the trial court noted that it had received extensive sentencing memoranda from the parties and asked whether either had anything to add. Defendant clarified one point. He argued that, contrary to his statement in the sentencing memorandum, the question whether the two convictions for burglary (and the attendant sexual abuse convictions) arose out of separate criminal episodes turned on a factual finding that, under the state constitution, the jury had to make.

Having considered the parties' arguments, the trial court rejected defendant's arguments. The court then followed the state's recommendations. It imposed upward departure sentences on the two burglary convictions and the two sexual abuse convictions based on touching the victim's vagina. It did not impose upward departure sentences on the remaining two sexual abuse convictions. It found that the first burglary charge and the two related sexual abuse charges occurred within a single criminal episode, which ordinarily would require that the sentences on those convictions be concurrent unless the court made certain factual findings. See ORS 137.123(5) (stating findings necessary to impose consecutive sentences for convictions arising out of a continuous and uninterrupted course of conduct). On that point, the court reasoned:

"[The c]ourt can impose consecutive sentences [for offenses that occur within a continuous and uninterrupted course of conduct] if the court finds [under ORS 137.123(5)] that the criminal offense for which consecutive sentence was contemplated was not merely an incidental violation of a separate statutory provision. I do make that finding in this case, that it was an indication of your willingness to commit more than one criminal offense.

"In addition, I find that in committing sexual abuse in the first degree that you caused or created a risk of causing greater, qualitatively different loss, injury or harm to the victim than you did in count 1. So, as I said, your sentence on count 2 [sexual abuse for touching the victim's vagina] will be consecutive to the sentence [o]n count 1 [burglary]."

The court ordered that the sentence on the remaining sexual abuse conviction run concurrently with the sentence on the sexual abuse conviction for touching the victim's vagina.

The court then found that the second burglary was a "second separate incident" and ordered that the sentence on that conviction run consecutively to the other sentences. Regarding the sexual abuse convictions for touching the victim's vagina and breasts during that second burglary, the court, applying the same reasoning that it had used in connection with the first burglary, ordered that the sentence on the conviction for sexual abuse based on touching the victim's vagina run consecutively to the sentence for the second burglary, but that the conviction for sexual abuse based on touching the victim's breasts run concurrently with the other sentences.

Defendant appealed. Among other things, he argued that the trial court violated his state and federal constitutional rights both when it imposed departure sentences and when it ordered that the sentences for four of his six convictions run consecutively rather than concurrently. He further contended that, even if he had failed to preserve those issues, the Court of Appeals should reach them under the plain error doctrine. As noted, the Court of Appeals affirmed the trial court's judgment without opinion, and we allowed defendant's petition for review to consider whether either the state or federal constitution requires that a jury rather than a judge find the facts necessary to impose consecutive sentences.

On review, defendant begins by challenging the upward departure sentences that the trial court imposed. Relying on Apprendi and Blakely, he argues that a jury rather than a judge should have found the facts necessary to impose those sentences. Defendant failed to preserve that objection. He never objected on any ground, either in his sentencing memorandum or at the sentencing hearing, to imposing an upward departure sentence on any of his convictions.

To be sure, defendant did argue in his sentencing memorandum that the state constitution precluded the trial court from refusing...