State v. Allred

• Decision Date: 26 January 2000
• Parties: STATE of Oregon, Respondent, v. Clifford Scott ALLRED, Appellant.
• Court: Oregon Court of Appeals

995 P.2d 1210

165 Or. App. 226

STATE of Oregon, Respondent, v. Clifford Scott ALLRED, Appellant.

(98CR1564FE; CA A103666)

Court of Appeals of Oregon.

Argued and Submitted May 26, 1999.

Decided January 26, 2000.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Defendant appeals his sentence for hindering prosecution. The sole issue on appeal is whether the trial court erred in imposing a 36-month durational departure sentence. We conclude that the trial court erroneously interpreted and applied OAR 213-008-0002(1)(b)(J), the particular sentencing guideline on which the court relied in imposing defendant's sentence. Consequently, we vacate the sentence for hindering prosecution and remand for resentencing.

Defendant pleaded guilty in connection with hindering the prosecution of Jesse Fanus, an individual who was suspected of murder. Defendant is a long-time friend of Fanus's father and has known Fanus since he was an infant. Fanus was a fugitive from the police and a suspect in the murder of retired Marine Corps General Marion Carl and in the shooting of Carl's wife in the course of a home invasion robbery. On June 29, 1998, defendant was driving through Roseburg and by chance saw Fanus on the street at a time that Fanus was in the vicinity of police officers, but apparently was not noticed by them. Defendant stopped his car, told Fanus he should get in, and drove him to Medford. Defendant did not know if Fanus had committed the crime. He suspected Fanus might have done so, however, because he knew that Fanus and Fanus's brother had acquired a shotgun and he was concerned that they would get themselves into trouble with it. En route to Medford, Fanus told defendant that he had shot Carl with a shotgun and that he had disposed of the weapon. Defendant suggested that Fanus go to Los Angeles because it is a big city where "a person could get lost." Once in Medford, defendant provided Fanus with some clothing and put him on a bus to California. One week later, California police arrested Fanus in suburban Los Angeles. While Fanus was on the run, defendant did not disclose Fanus's whereabouts to anyone. When the police questioned defendant after apprehending Fanus, defendant initially denied any knowledge of the matter. He admitted his involvement only after learning that Fanus had told police that defendant had driven him to Medford.

Defendant was charged with and convicted of hindering prosecution. ORS 162.325.¹ The sentencing court imposed an upward durational departure of 36-months imprisonment from the presumptive sentence of 15 to 18 months. In departing, the trial court relied on OAR 213-008-0002(1)(b)(J) (Factor J), which authorizes an upward departure if "[t]he degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense."

In arguing for a durational departure under Factor J, the state pointed to four facts or circumstances justifying the departure. First, the state urged that the crime committed by Fanus—aggravated murder—was a more serious felony offense than others that would support a hindering prosecution charge. Next, the state emphasized that defendant did not just provide Fanus with a ride away from the crime scene, but he took Fanus out of the county and "out of the net" where he might have been caught earlier. Third, the state contended that Fanus posed a graver risk to public safety than typically might be the case because he was an aggravated murder suspect and, according to the information available to police, he possessed a firearm. Finally, the state observed that, due to defendant's offense, the search was expanded from a local to a state-wide search and finally to a national search that involved California and federal law enforcement authorities.

The trial court relied only on the third concern cited by the state—that is, the risk to the public created by the possibility that Fanus, while at large, would commit another murder:

"[Y]ou were giving [Fanus] a second breath to go down and potentially commit a similar crime or the same type of crime, and so you did put the public at great risk and you simply didn't need to do it.

"* * * * *

"So I think that the harm or loss caused by your actions were significantly greater than typical and that there will be a durational departure to 36 months * * *."

Defendant challenges the trial court's departure under Factor J, arguing that Factor J authorizes a departure only if defendant's crime actually caused harm significantly greater than typical for that crime, not if it only created a risk of such harm. The state responds that a risk of harm to the public, in the form of the potential for Fanus to commit more crimes, satisfies the language of the relevant departure factor. So framed, the issue turns on the meaning of the relevant sentencing guideline (Factor J), which presents us with a legal question that we decide without deference to its resolution below. See State v. Lark, 316 Or. 317, 322, 851 P.2d 1114 (1993)

.

The starting point for interpreting the guideline is, of course, its plain language. Factor J authorizes a departure if "[t]he degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense." (Emphasis added.) The text is phrased in the past tense. The guideline refers to a degree of harm or loss "attributed" to the current crime of conviction. It further refers to whether the harm or loss "was" significantly greater than typical for the crime. In that respect, the terms have a distinctly retrospective and completed-act focus. The same is true of the provision's surrounding context. The other aggravating factors contained in the same rule are all directed to actual and completed harms that are a consequence of the crime committed, not to risk of harm in the form of prospective and theoretical future crimes.² It may be that the legislature, had it considered the possibility, would have chosen to encompass risk of future harms in the equation.³ But, unlike other statutes and guidelines where the legislature expressly has referred to future or potential dangerousness, it plainly did not do so here. Compare ORS 163.150(1)(b)(B) (death sentence for aggravated murder authorized where "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"); OAR 213-008-0002(1)(b)(B) (departure sentence for person crime involving vulnerable victim authorized if the crime involved increased harm or "threat of harm"); OAR 213-008-0002(1)(b)(C) (same if person crime involving vulnerable victim involved "threat of or actual violence").⁴

Moreover, Factor J refers to harm that is greater in "degree" than is typical for a particular crime. That language suggests quantitatively greater harm, not harm different in kind.⁵ A risk to public safety—which is the harm that the sentencing court identified—is not the harm that the crime of hindering prosecution seeks to prevent.

Hindering prosecution is a descendant of the common-law crime of accessory after the fact, which was an offense based on accessorial liability. At common law, accessorial liability "rested on the notion that one who helps an offender avoid justice becomes in some sense an accomplice in the original crime." Model Penal Code and Commentaries § 242.3, 224 (Official Draft and Revised Comments 1985). One guilty of accessory after the fact was, in effect, derivatively liable for the underlying crime. Consistent with the notion of derivative liability, the accessory had to have knowledge that the principal committed the crime, the principal had to be tried first or jointly with the accessory, the principal's conviction was a prerequisite to punishment of the accessory, and the accessory was subject to the same sentence as the principal. Id.

The Model Penal Code (MPC) broke "decisively" from the common-law view of the offense by rejecting its tradition of accessorial liability and adopting instead "the alternative theory of prosecution for obstruction of justice." Id. at 224-25. The MPC therefore reformulated the crime as that of hindering apprehension or prosecution. It aimed the prohibition at the "purposeful efforts to aid another to evade justice" and did so "without regard to whether the person assisted in fact committed a crime and with penalties not invariably tied to those prescribed for the underlying offense." Id. at 225.

In revising the Oregon Criminal Code in 1971, the legislature substantially adopted the MPC's approach.⁶ The legislature repealed the former accessory statute (former ORS 161.230) and replaced it with hindering prosecution, codified as ORS 162.325. Although borrowing in part from the MPC, Oregon did not abandon accessorial liability altogether. Rather, it retained the requirement that the person aided be one "who has committed a crime punishable as a felony." See ORS 162.325(1). Significantly, however, Oregon shifted the emphasis to the public's interest in preventing the obstruction of justice. The legislature changed the mental state required for hindering prosecution by deleting the requirement that a defendant know that the person he or she aided in fact had committed a felony. Instead, the mental state required is the intent to hinder apprehension or prosecution, thus aiding the offender in "escaping justice." See generally Commentary to Oregon Criminal Code of 1971, § 162.325, 106 (1975).

As that history reflects, hindering prosecution in Oregon is still based in part on accessorial liability for the crime...