State v. Bradley
| Decision Date | 19 October 2016 |
| Docket Number | A155858 |
| Citation | 383 P.3d 937,281 Or.App. 696 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Ronald Edwin Bradley, II, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
281 Or.App. 696
383 P.3d 937
State of Oregon, Plaintiff–Respondent,
v.
Ronald Edwin Bradley, II, Defendant–Appellant.
A155858
Court of Appeals of Oregon.
Argued and submitted September 28, 2015.
October 19, 2016
Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With her on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Tookey, Judge, and Flynn, Judge.*
TOOKEY, J.
Defendant was convicted of nine counts of sexual abuse in the first degree (Counts 1–7, 12, and 13), two counts of unlawful sexual penetration in the first degree (Counts 10 and 11), and one count of sodomy in the first degree (Count 14). Following a successful appeal, in which we overturned defendant's convictions on Counts 1 to 7, 10, and 11, State v. Bradley, 253 Or.App. 277, 290 P.3d 827 (2012), the trial court resentenced defendant on the affirmed counts (Counts 12, 13, and 14). Defendant appeals the resulting judgment of conviction on Counts 12, 13, and 14, raising three assignments of error. For the reasons that follow, we remand for resentencing and otherwise affirm.
The following facts are undisputed. Defendant was originally sentenced to a total of 215 months' imprisonment based on his conduct with two victims, C and Z. For the conduct with Z, the trial court imposed prison terms of 34 months each on Counts 12 and 13, 115 months on Count 14, and ordered all of the prison terms to be served concurrently. On appeal, we reversed and remanded the convictions with respect to C because of evidentiary error (Counts 1–7, 10, and 11) and affirmed the convictions with respect to Z (Counts 12, 13, and 14). Bradley , 253 Or.App. at 287, 290 P.3d 827.
Pursuant to ORS 138.222(5)(b), the trial court held a resentencing hearing on the affirmed counts.1 Defendant raised three arguments at resentencing. He argued that the trial court could not impose a longer sentence than it had originally imposed on the affirmed counts, that the guilty verdicts on Counts 12 and 13 should merge under ORS 161.067(3), and that his sentences on Counts 12 and 13 should run concurrently under ORS 137.123(5).
Citing State v. Partain , 349 Or. 10, 239 P.3d 232 (2010), defendant argued that the sentencing court could not impose a longer sentence on the three affirmed counts than had been originally imposed:
“I believe the holding in that case is that the court can do so * * * for a non-vindictive reason. * * * So if you find out something more or something worse or perhaps even if there was a crime committed in prison or bad behavior in prison, the Court could essentially impose a harsher sentence.
“Interestingly in this case, the other case that was reversed, they have not been
retried and essentially he is receiving a harsher sentence now. * * * He has essentially done nothing other than serve his sentence * * * and appeal his sentence, part of which was reversed and he is now facing the possibility of receiving a harsher sentence and we object to that.”
The court ruled:
“Okay, so let me first put on the record that the sentence that I am about to impose is not a vindictive sentence. There is nothing vindictive about this case. * * * I am not being vindictive. In fact, the sentence I am going to impose is a lesser sentence than he originally got and it's a lesser sentence for several reasons.
“One, well he wasn't convicted of the charges against him on the other victim [and they] were reversed so he doesn't stand convicted of those counts. That is partially why he is receiving a lesser sentence. Another reason is that he has done well while he is in jail. He has completed some programs, so that also calls for a lesser sentence. But at the same time, the Court is entitled to consider—now this is interesting—the Court is entitled to consider the sexual abuse of the child whose cases were reversed and remanded.
“The reason why I say that is because those were reversed and remanded, so he can stand trial for those again and when a Court sentences a defendant, the Court often hears from victims of crimes who were never convicted or never prosecuted, but the Court can consider that other abuse.
“I think that it hasn't been put on the record and I know [the state] doesn't want to go there, but as far as the record goes there is a strong possibility in this case that he may not even have to be re-prosecuted for those cases. The State might elect not to prosecute him on the other child's case. They might consider this sentence sufficient. But it doesn't
mean I can't also consider that in making my sentence. So there is a lot of stuff that goes into making this decision and so it's just not a sentence that—I mean a lot of thought has gone into this.
“But I think that it is real clear that it should be stated once again that there is nothing vindictive about this sentence and he is getting a lesser sentence than he originally served and it was for those reasons I have already previously stated.”
Additionally, the court denied defendant's request to merge the guilty verdicts on Counts 12 and 13, concluding that the counts encompassed “separate criminal acts,” and sentenced Counts 12 and 13 consecutively because of “defendant's willingness to commit more than one criminal offense.” The trial court imposed a total sentence of 183 months' imprisonment on the three affirmed counts, 68 months longer than the 115 months that it had originally imposed for those counts when they ran concurrently. Following entry of the judgment on the affirmed counts, on the state's motion, the court dismissed the remaining counts that had been reversed.
In his first assignment, defendant contends that the trial court erred by imposing a longer sentence on Counts 12, 13, and 14 at resentencing. Specifically, defendant argues that the resentencing court violated his due process rights when it imposed “consecutive sentences on affirmed counts that previously carried concurrent sentences, while the reversed counts [were] still pending for trial, without any new information” to justify imposing a longer sentence. The state responds, asserting that the “trial court did not engage in vindictive sentencing in retaliation for defendant's successful appeal.”
We review for legal error. See ORS 138.222(4)(a) (“In any appeal, the appellate court may review a claim that * * * [t]he sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence[.]”). “[W]hen a criminal case is before a court for resentencing pursuant to ORS 138.222(5), the court must impose a sentence that is constitutional at the time of resentencing[.]” State v. Hollingquest , 241 Or.App. 1, 6, 250 P.3d 366 (2011). The Due Process Clause of the Fourteenth Amendment to
the United States Constitution provides that “[n]o state shall * * * deprive any person of life,...
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