State Of Or. v. Davilla

• Citation: 230 P.3d 22,234 Or.App. 637
• Decision Date: 14 April 2010
• Docket Number: CR9200004,A136800.
• Parties: STATE of Oregon, Plaintiff-Appellant,v.Todd Daniel DAVILLA, Defendant-Respondent.
• Court: Court of Appeals of Oregon

234 Or.App. 637
230 P.3d 22

STATE of Oregon, Plaintiff-Appellant,
v.
Todd Daniel DAVILLA, Defendant-Respondent.

CR9200004; A136800.

Court of Appeals of Oregon.

Argued and Submitted May 13, 2009.
Decided April 14, 2010.

230 P.3d 23

Timothy A. Sylwester, Salem, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Kendra Matthews, Portland, argued the cause for respondent. With her on the brief were Marc D. Blackman, and Ransom Blackman LLP.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.^*

WOLLHEIM, P.J.

The state appeals a judgment imposing a sentence on defendant on his conviction for murder, ORS 163.115, for an offense committed in 1991. The trial court imposed a sentence of life imprisonment with immediate eligibility for parole pursuant to ORS 163.115(3)(a) (1989), amended by Or. Laws 1995, ch. 421, § 3, after the court determined that the sentencing guidelines were invalid on constitutional grounds. We review to determine, as a matter of law, whether the “sentencing court failed to comply with the requirements of law in imposing or failing to impose a sentence.” ORS 138.222(4)(a). We reverse and remand.

I. PROCEDURAL HISTORY

This case has a long history; this is the sixth time that this court has considered defendant's sentence for murder. In 1991, when defendant was 16 years old, he forcibly entered a home, attempted to rape a woman, and then murdered her.

After the state filed a motion to remand the case from juvenile court to circuit court, defendant and the state reached a plea agreement. The case was remanded to circuit court. The state agreed not to prosecute defendant for aggravated murder, and defendant entered, pursuant to the plea agreement, guilty pleas to murder, ORS 163.115, burglary in the first degree, ORS 164.225, and attempted rape in the first degree, ORS 161.405, ORS 163.375.¹ Defendant and the state also agreed that the “Uniform Sentencing Guidelines Grid Blocks apply” and that, pursuant to those guidelines, his murder conviction had a crime seriousness level of 11 and he had a criminal history score of I. Under those circumstances, the sentencing guidelines provide a presumptive term of incarceration of 120 to 121 months.

The trial court, however, did not proceed to impose sentence under the guidelines. Rather, the trial court proceeded under ORS 163.115(3)(a) (1989) and sentenced defendant to life imprisonment. On appeal, we affirmed. State v. Davilla, 121 Or.App. 583, 855 P.2d 1160, adh'd to on recons., 124 Or.App. 87, 860 P.2d 894 (1993), rev. den., 318 Or. 351, 870 P.2d 220 (1994) ( Davilla I ).

Defendant then petitioned for post-conviction relief, relying on State v. Morgan, 316 Or. 553, 856 P.2d 612 (1993), for the proposition that the indeterminate life sentence imposed on him was invalid because ORS 163.115(3)(a) (1989) had been superseded by enactment of the sentencing guidelines. The

230 P.3d 24

post-conviction court granted his petition on that basis and vacated his sentence. We affirmed without opinion Davilla v. Zenon, 147 Or.App. 241, 932 P.2d 1217 rev. den., 325 Or. 403, 939 P.2d 621 (1997) ( Davilla II ).

On remand, in 1995, the sentencing court proceeded under the guidelines in accordance with the parties' original plea agreement as to the relevant crime seriousness and criminal history classifications noted in the plea agreement. However, the court found multiple aggravating factors under the sentencing guidelines and imposed a departure sentence of 1,394 months (approximately 116 years).

Defendant appealed from that sentence, arguing that the guidelines could not be applied to him under ORS 161.620 (1989), amended by Or. Laws 1995, ch. 422, § 131y. ORS 161.620 (1989) prevented a circuit court from imposing on a juvenile (1) “any sentence of death or life imprisonment without the possibility of release or parole” or (2) “any mandatory minimum sentence except that a mandatory minimum sentence under ORS 163.105(1)(c) [for aggravated murder] shall be imposed where the person was 17 years of age at the time of the offense.” We concluded that determinate sentences under the guidelines are not mandatory minimum sentences. State v. Davilla, 157 Or.App. 639, 645, 972 P.2d 902 (1998), rev. den., 334 Or. 76, 45 P.3d 450 (2002) ( Davilla III ). However, we vacated the sentence imposed, on the basis that a sentence that included a prison term of 116 years was equivalent to a prison term of life without the possibility of release or parole. Id. at 643, 972 P.2d 902. Accordingly, we remanded for resentencing with the instruction that “the trial court is to impose sentence under the guidelines.” Id. at 645-47, 972 P.2d 902.

On remand, in 2002, the sentencing court proceeded in accordance with the 1995 court's findings and imposed a departure sentence of 684 months (57 years) on the murder conviction. Although, on appeal, we initially affirmed without opinion, State v. Davilla, 193 Or.App. 484, 93 P.3d 845 (2004) ( Davilla IV ), defendant sought reconsideration based on the then-recent United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We granted reconsideration, withdrew our opinion, and remanded for resentencing under State v. Gornick, 196 Or.App. 397, 102 P.3d 734 (2004), rev'd on other grounds, 340 Or. 160, 130 P.3d 780 (2006) (waiver of the defendant's Sixth Amendment right to a jury trial implicit in the guilty plea did not also waive the defendant's right to have a jury determine aggravating factors that would support a departure sentence). State v. Davilla, 196 Or.App. 783, 103 P.3d 671 (2004) ( Davilla V ).²

II. SENTENCING COURT'S RULING

On remand after our 2004 decision, the state provided notice to defendant of its intent to prove specific aggravating factors to support an upward departure sentence under the sentencing guidelines. See Senate Bill (SB) 528 §§ 2(2), 21(3) (2005) (now codified at ORS 136.765(2)); see also State v. Upton, 339 Or. 673, 681-82, 125 P.3d 713 (2005) (SB 528 provides a procedural mechanism to comply with the constitutional issues addressed in Blakely ). The state's notice alleged four aggravating facts:

“1) The defendant demonstrated deliberate cruelty toward the victim * * *.

“2) The defendant used a dangerous weapon in the commission of this crime.

“3) The conduct of the defendant that caused the death of [victim] was committed deliberately and with the reasonable expectation that the death * * * would result.

“4) The defendant committed this murder in an effort to conceal his commission of the crimes of Attempted Rape I and Burglary I.”

Defendant filed a demurrer challenging the state's notice on the basis that, among other things, the notice was not constitutionally adequate and that the aggravating factors provided in the sentencing guidelines

230 P.3d 25

were the result of an unconstitutional delegation of legislative authority.

The sentencing court granted the demurrer based on defendant's unconstitutional delegation argument. The court concluded that aggravating factors for sentencing are elements of an offense, that elements of an offense must be enacted by statute, and that because the aggravating factors were not enacted by statute, the establishment of those aggravating factors resulted from an improper delegation of legislative authority. The court then determined that the legislature would not have enacted the remainder of the sentencing guidelines without the aggravating factors and that the sentencing guidelines, therefore, had no continuing legal effect. Consequently, the court relied on the sentencing framework that existed before the enactment of the guidelines-that is, ORS 163.115 (1989), the same statutory basis under which defendant was initially sentenced-and imposed a sentence of an indeterminate life term with immediate eligibility for parole.

On appeal, the state assigns as error the trial court's allowance of defendant's demurrer and its imposition of a sentence of a life term with immediate eligibility for parole. The state argues that, even if enhancement factors are elements of an offense, the legislature expressly approved those aggravating factors and did not impermissibly delegate their establishment. Alternatively, the state argues that enhancement factors are not elements of an offense.

Defendant presents four separate arguments why the trial court properly rejected the sentencing guidelines and relied on ORS 163.115 (1989) in imposing sentence on defendant. Three of those arguments assert that the sentencing guidelines are invalid on constitutional grounds and that ORS 163.115 (1989) provides the statutory authority for imposing sentence on defendant's murder conviction. First, defendant argues that the trial court was correct in concluding that the guidelines are invalid because the legislative branch unconstitutionally delegated the definition of aggravating factors under the guidelines to the executive branch. Second, defendant argues that the guidelines are unconstitutional as the product of an unconstitutional delegation of authority from the legislative branch to the judicial branch. Third, defendant argues that the sentence guidelines are unconstitutional on grounds of vagueness. Defendant's fourth argument asserts that ORS 163.115(3)(a) (1989) properly controls sentencing despite the Supreme Court's decision in Morgan, 316 Or. at 560, 856 P.2d 612, that ORS 163.115(3)(a) (1989) was superseded by the legislature's enactment of the guidelines. Defendant argues that the legislature's 1995 enactment of amendments to ORS 163.115, Or. Laws 1995, ch. 421, § 3, statutorily overruled Morgan.

III. LEGAL ANALYSIS

We proceed by first considering the trial court's determination that the sentencing guidelines are the product of an unconstitutional delegation of authority by the legislative branch to the executive branch. As explained below,...