State ex rel. Huddleston v. Sawyer

• Decision Date: 21 February 1997
• Citation: 932 P.2d 1145,324 Or. 597
• Parties: STATE of Oregon ex rel Mark HUDDLESTON, District Attorney for Jackson County, Plaintiff-Relator, v. Honorable L.L. SAWYER, Judge of the Circuit Court of the State of Oregon for Jackson County, Defendant. SC S42938. *
• Court: Oregon Supreme Court

Page 1145

932 P.2d 1145

324 Or. 597

STATE of Oregon ex rel Mark HUDDLESTON, District Attorney for Jackson County, Plaintiff-Relator, v. Honorable L.L. SAWYER, Judge of the Circuit Court of the

State of Oregon for Jackson County, Defendant.

SC S42938. ^*

Supreme Court of Oregon.

Argued and Submitted Sept. 9, 1996.

Decided Feb. 21, 1997.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for relator. With him on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Eleanor E. Wallace, Assistant Attorney General.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for defendant. With him on the brief was Sally L. Avera, Public Defender.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ.

GRABER, Justice.

The facts pertinent to this original mandamus proceeding are not in dispute.

Relator is the District Attorney for Jackson County. Defendant is a judge of the Circuit Court for Jackson County.

Relator represents the State of Oregon in State v. Bobby Ron Vanzant, Jackson County Circuit Court Case No. 952538CC2. In that case, Vanzant was charged by indictment with first-degree manslaughter, based on an act that he had committed on June 18, 1995. On October 9, 1995, a jury convicted Vanzant of the lesser-included offense of second-degree manslaughter, in violation of ORS 163.125(1)(a). ¹ Defendant was the trial judge and sentencing judge.

ORS 137.700(2)(e) provides that a judge imposing sentence on a person convicted of second-degree manslaughter must order the person to serve at least 75 months in prison. ² ORS 137.700 is the codification of Measure 11, which was adopted by the people in 1994. ³ Before being sentenced, Vanzant filed a memorandum in which he argued that ORS 137.700 is facially unconstitutional for several reasons. Relator filed a response, contending that ORS 137.700 is valid. After a hearing, defendant rejected Vanzant's various challenges to ORS 137.700, but he went on to rule sua sponte that the statute is facially unconstitutional under the Equal Protection Clause of the United States Constitution and that the statute is, therefore, unenforceable.

Thereafter, at sentencing, defendant placed Vanzant's conviction into grid block 8-H and imposed a 20-month presumptive sentence under the sentencing guidelines. Over relator's objection, defendant refused to impose the 75-month minimum sentence prescribed by ORS 137.700(2)(e). On December 22, 1995, judgment was entered on the conviction and sentence.

On January 12, 1996, relator filed a petition for an alternative writ of mandamus. This court issued an alternative writ, and the present proceeding ensued. ⁴ For the reasons that follow, we now direct the issuance of a peremptory writ of mandamus, requiring defendant to enter a corrected judgment in State v. Bobby Ron Vanzant, Jackson County Case No. 952538CC2, that imposes sentence for the crime of second-degree manslaughter in accordance with ORS 137.700(2)(e).

I. APPROPRIATENESS OF MANDAMUS AS A REMEDY

Defendant asserts that mandamus is not an appropriate remedy, because the state can appeal from the judgment in the underlying case and thereby has a plain, speedy, and adequate remedy in the ordinary course of the law. See State ex rel. LeVasseur v. Merten, 297 Or. 577, 579-80, 686 P.2d 366 (1984) (ordinarily mandamus will not lie if there is a plain, speedy, and adequate remedy in the course of the law). ⁵

Appellate review is governed by statute. Henry and Henry, 301 Or. 185, 188, 721 P.2d 430 (1986). Under ORS 138.060(5), the state has a right to appeal a sentence "as provided in ORS 138.222."

ORS 138.222 provides that appellate courts may not review certain sentences. ORS 138.222(2) provides in part:

"On appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court shall not review:

(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission."

Relator argues that ORS 138.222(2)(a) applies and that it precludes appellate review of the issues presented.

ORS 138.222(2) further provides that "the appellate court shall not review:"

"(e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing."

Subsection (3) relates to departure sentences, which are not involved here. Subsection (4)(a) states that "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." Defendant argues that ORS 138.222(4)(a) authorizes review of the state's claims on appeal in State v. Vanzant.

The parties' arguments require us to engage in a two-step inquiry. The first step is to determine whether the court is being asked to "review" "[a]ny sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission"--that is, whether ORS 138.222(2)(a) applies. If the answer is "yes," the second step is to determine whether review under ORS 138.222(4)(a) is available nonetheless.

We turn first to the meaning of ORS 138.222(2)(a). ORS 137.651 to 137.671 provide for the establishment and functioning of the Oregon Criminal Justice Commission (Commission), which is referred to in the statute that we are interpreting. The Commission's authority includes rule-making. ORS 137.673. ORS 137.669 provides that the felony sentencing guidelines adopted by the Commission and approved by the legislature

"shall control the sentences for all crimes committed after the effective date of such guidelines. Except as provided in ORS 137.671, the incarcerative guidelines and any other guidelines so designated by the commission shall be mandatory and constitute presumptive sentences." (Emphasis added.)

ORS 137.671 provides:

"(1) The court may impose a sentence outside the presumptive sentence or sentence range made presumptive under ORS 137.669 for a specific offense if it finds there are substantial and compelling reasons justifying a deviation from the presumptive sentence.

(2) Whenever the court imposes a sentence outside the presumptive sentence it shall set forth the reasons for its decision in the manner required by rules of the Oregon Criminal Justice Commission." (Emphasis added.)

The statutes do not define the term "presumptive sentence." The Commission has, however, defined that term by rule:

" 'Presumptive Sentence' means the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime seriousness ranking of the current crime of conviction and the offender's criminal history." OAR 253-03-001(16).

" 'Grid Block' means a box on the grid formed by the intersection of the crime seriousness ranking of a current crime of conviction and an offender's criminal history classification." OAR 253-03-001(10).

" 'Grid' means the Sentencing Guidelines Grid set forth [as an appendix to the Commission's rules.]" OAR 253-003-001(9).

From the relevant statutes and from the Commission's rules, it is clear that a "presumptive sentence" does not mean a statutorily mandated term of imprisonment that does or may apply to a particular conviction. ORS 137.637 provides:

"When a determinate sentence of imprisonment is required or authorized by statute, the sentence imposed shall be the determinate sentence or the sentence as provided by the rules of the Oregon Criminal Justice Commission, whichever is longer." (Emphasis added.)

As explained above, it is only the latter type of sentence, not the former, that can be "the presumptive sentence" as that term is used in the statute. ORS 137.669, ORS 137.671. Echoing the provisions of ORS 137.637, OAR 253-09-001 provides in part:

"(1) If a mandatory prison sentence is required or authorized by statute, the sentence imposed shall be that determinate sentence or the sentence under these rules whichever is longer.

"(2) If the provisions of ORS 137.635 [providing mandatory determinate sentences for certain specified felony convictions], require the imprisonment of an offender for whom the grid provides presumptive probation, the offender shall be imprisoned for a duration determined as follows:

"[listing months of imprisonment for offenses classified in various grid blocks.]"

See also State v. Jones, 315 Or. 225, 231, 844 P.2d 188 (1992) ("a sentence is a 'mandatory minimum sentence' if it is statutorily required").

The felony sentencing guidelines thus contain a means to harmonize potential conflicts between "the presumptive sentence" and a longer, statutorily mandated term of imprisonment. That being so, the enactment or operation of a statutorily mandated term of imprisonment does not erase the applicability of the felony sentencing guidelines as a whole and does not alter the meaning of the term "presumptive sentence," which is expressly defined by rule.

Nothing in Measure 11 interferes with that reconciliation of "the presumptive sentence," prescribed by the felony sentencing guidelines, with a statutorily mandated term of imprisonment. For example, ORS 137.700(1) provides that "[t]he court may impose a greater sentence [than the specified minimum] if otherwise permitted by law." With respect to each offense listed in ORS 137.700(2), except murder, the minimum sentence prescribed by ORS 137.700 is significantly less than the maximum sentence already prescribed for that offense by ORS 161.605. ⁶ Here, for example, the minimum prison sentence prescribed by ORS 137.700(2)(e) for Vanzant's conviction is 75 months, while the maximum prison sentence allowed by law for that conviction is 10 years (120 months), ORS 161.605(2). Although the statutorily mandated term of imprisonment likely will exceed "the presumptive sentence" prescribed by the felony sentencing guidelines in most cases, (1) that will not necessarily be...