DeAngelo v. Schiedler, C-10516

• Decision Date: 30 August 1988
• Docket Number: C-10516
• Parties: Sondra DeANGELO, Petitioner on review, v. Robert SCHIEDLER, Superintendent, Oregon Women's Correctional Center, Respondent on review. CC 86-; CA A42588; SC S34863.
• Court: Oregon Supreme Court

Page 1355

757 P.2d 1355

306 Or. 91

Sondra DeANGELO, Petitioner on review, v. Robert SCHIEDLER, Superintendent, Oregon Women's

Correctional Center, Respondent on review.

CC 86-C-10516; CA A42588; SC S34863.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 4, 1988.

Decided June 21, 1988.

Reconsideration Denied Aug. 30, 1988.

Wayne Mackeson of Des Connall and Dan Lorenz, P.C., Portland, argued the cause and filed the petition for petitioner on review.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

JONES, Judge.

This is a post-conviction appeal. We review the judgment of the post-conviction court for the constitutionality of the sentence. ORS 138.530(1)(c).

Petitioner pled no contest to three counts of theft in the first degree and three counts of forgery in the first degree. All of the charges arose from her misappropriation of money, in various forms, from an elderly woman for whom she acted as companion. Petitioner was found guilty and sentenced to five years on each count. The sentences for the forgery counts were to run concurrently with those for the theft counts, but the sentences for the theft counts were to run consecutively. Petitioner sought post-conviction relief on several grounds, particularly that she was not given an adequate opportunity to be heard on her own behalf at the time of sentencing. The post-conviction court found that petitioner had not been denied that right. The Court of Appeals affirmed without opinion. DeAngelo v. Schiedler, 89 Or.App. 87, 747 P.2d 415 (1987). We reverse the decision of the Court of Appeals.

Petitioner's sole complaint to this court is that her right of allocution ¹ was denied by the trial court. She claims that the right of allocution is of constitutional magnitude, asserting that right under both the state and federal constitutions.

Article I, section 11, of the Oregon Constitution states that "[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel." In construing this provision, this court in State ex rel. Russell v. Jones, 293 Or. 312, 315, 647 P.2d 904 (1982), stated that "[t]he term 'criminal prosecution' includes sentencing, a stage at which a judicial decision affecting a defendant's future liberty is made. Obviously, then, a defendant is entitled 'to be heard by himself and counsel' at sentencing."

There appears to be no disagreement that a "criminal prosecution" for the purposes of Article I, section 11, includes an ordinary sentencing hearing. See State ex rel. Russell v. Jones, supra, 293 Or. at 331, 647 P.2d 904 (Peterson, J., dissenting on other grounds); cf. Perry v. Williard, 247 Or. 145, 147, 427 P.2d 1020 (1967); Gebhart v. Gladden, 243 Or. 145, 149, 412 P.2d 29 (1966) (without mentioning Article I, section 11, stating that sentencing proceedings are part of the criminal prosecution). Once that has been established, it requires almost no interpretive work on our part to decide that defendant has the right, not only procedural, but constitutional, to be heard at sentencing, since the Oregon Constitution unambiguously grants the accused the right to be heard during the entire criminal prosecution.

We are not alone in concluding that the "right to be heard" under a state constitution includes the right of allocution. The Rhode Island Supreme Court in Robalewski v. Superior Court, 97 R.I. 357, 197 A.2d 751, 753 (1964), held that the language of Article I, section 10, of the Constitution of Rhode Island that a defendant in a criminal prosecution has the "liberty to speak for himself" included the common-law right of allocution. The Rhode Island court recognized that this guarantee did not originate with the state's constitution but stemmed from long-settled common-law rights of criminal defendants. In Robalewski the court held that one of the "precious fruits" of the right of an accused to be at "liberty to speak for himself" was the ancient common-law right of allocution. Ibid. The Rhode Island court did not cite any potential federal constitution violation, nor do we.

Because the Oregon Constitution affords defendant a right to speak at sentencing, the claim under the United States Constitution disappears. As explained by Justice Lent in State ex rel. Russell v. Jones,

"The Sixth Amendment is not by its terms applicable to the states. It is applicable only so far as its protection is necessary under the Fourteenth Amendment to the United States Constitution to ensure that a defendant not be deprived by the state of his 'life, liberty, or property, without due process of law.' * * * [Once the court has recognized that the Oregon Constitution grants the right a petitioner argues for,] can there be any cognizable claim that the state is depriving him of life, liberty or property without due process? That claim has become irrelevant because the state is affording him due process under state law. There is no need, in either logic or law, to reach his Sixth Amendment contention." 293 Or. at 320-21, 647 P.2d 904 (Lent, J., concurring).

The only remaining issue, therefore, is whether defendant was able effectively to exercise her right to be heard or if instead the sentencing judge violated that right by cutting her statement off in mid-sentence. The right to be heard is not unlimited. Even at trial, if the defendant decides to speak on her own behalf, the evidence introduced through that testimony is subject to the ordinary requirements that it not be irrelevant.

The right to speak at a sentencing hearing should logically include the right to make any statements relevant to existing sentencing and parole practices. For instance, Oregon's current "modified just deserts" approach to incarcerating individuals requires the sentencing judge to be fully informed of the defendant's criminal history, the crime severity, and aggravating and mitigating matters before imposing sentence. See, e.g., ORS 137.077, 137.080, 144.185. Many courts addressing the right of a defendant to speak at sentencing recognize that a prime reason for allowing such a right is to provide the defendant an opportunity to plead for mitigation of the sentence. See, e.g., Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961); State v. Allie, 147 Ariz. 320, 710 P.2d 430 (1985); People ex rel. McKevitt v. District Court, 167 Colo. 221, 447 P.2d 205 (1968); State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988). We agree with the Arizona court in State v. Allie that a defendant should be able to state any reason why he or she feels sentence should not be pronounced and, in addition to presenting mitigating evidence, be given an opportunity to make any relevant personal comments to the court. This includes, but is not limited to, statements of remorse, apology, chagrin, or plans and hopes for the future. Some defendants might even wish to plead for maximum punishment in an attempt to achieve some purported good. ²

Turning to the present case, after defense counsel's statement to the court on behalf of petitioner, the court asked petitioner if she had anything to say before the court pronounced sentence. The following colloquy took place:

"[PETITIONER'S TRIAL COUNSEL]: Your Honor, prior to sentencing, [petitioner] would like to make a comment or two. Would that be permitted?

"THE COURT: Proceed.

"[PETITIONER]: Your Honor, I did not say [the complaining witness] intended to commit fraud. [The government agency] wouldn't talk to her. She called to ask about things because she was used to having a lot of money and she wanted to keep us employed and be able to maintain the manner in which she lived.

"THE COURT: That's why you ran up $4,000 worth of jewelry bills?

"[PETITIONER]: She was with me.

"THE COURT: Personal items for yourself on credit cards for which you're not even--in this proceeding--going to be held responsible.

"[PETITIONER]: I should be held responsible for those. I took the responsibility.

"THE COURT: Too late, [petitioner].

"[PETITIONER]: She got involved in my wedding. In fact, she planned it; she took me shopping; I had it at her house.

"THE COURT: Uh-huh.

"[PETITIONER]: My husband was not with me when we got the rings.

"THE COURT: That's because she thought you were her friend when you were really one of her worst enemies.

"[PETITIONER]: She told me before I even got--

"THE COURT: That's enough. I don't want to listen to you anymore.

"You're going to the State Penitentiary. You're going five years on each of the three cases, with two-and-a-half-year minimums as recommended by the District Attorney's office."

We cannot tell from this record what petitioner would have said to the court, although we deduce that no matter what she had said the sentencing judge would have remained unpersuaded. The judge should not impatiently have jumped to judgment, especially a judgment that potentially would lock up petitioner for seven and one-half years in maximum security for committing a nonviolent property crime. There is no indication that the judge was interrupting her statement because he found it irrelevant--rather it appears he stopped her because he was annoyed and disgusted.

In hindsight, petitioner should have attempted to make an "offer of proof" of what she was going to say to the court. The judge, however, cut off all further communication. He said in no uncertain terms, "I don't want to listen to you anymore." If she had attempted to say more, she might have been held in contempt by the obviously impatient judge. ³ Under these circumstances, petitioner can be excused for not making a more complete record. Petitioner was allowed only nine and one-half sentences to speak on her own behalf. Perhaps what she would have expressed would not have impressed the sentencing judge, but it might have influenced a...