State v. Crain

• Decision Date: 31 October 2001
• Parties: STATE of Oregon, Respondent, v. Lester CRAIN, Appellant.
• Court: Oregon Court of Appeals

33 P.3d 1050

177 Or. App. 627

STATE of Oregon, Respondent, v. Lester CRAIN, Appellant.

9804-33425; A108785

Court of Appeals of Oregon.

Argued and Submitted May 31, 2001.

Decided October 31, 2001.

Rankin Johnson IV, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.

Timothy A. Sylwester, 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 HASELTON and BREWER, Judges.

BREWER, J.

Defendant appeals from his conviction for, among other crimes, rape in the first degree, ORS 163.375. His sole assignment of error on appeal is that, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial court erred in sentencing him as a dangerous offender under ORS 161.725(1)(a)¹ based on facts not pleaded in the indictment or proved to the jury beyond a reasonable doubt. The state responds that defendant failed to preserve that claim of error and that, in any event, neither the Oregon nor the United States Constitution required that the state allege, or that the jury determine beyond a reasonable doubt, the facts supporting defendant's dangerous offender sentence. We conclude that defendant failed to preserve his claimed error and, therefore, affirm.

In December 1997, defendant offered a ride to a woman waiting at a bus stop. The woman got into defendant's car. Defendant drove the woman to a deserted parking lot, asked her to fellate him and, after she refused, forcibly raped her.

Defendant was charged with rape in the first degree, kidnapping in the second degree, and attempted sodomy in the first degree. None of the counts in the indictment alleged that defendant was "suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another," ORS 161.725(1)(a), or otherwise alleged that defendant was a dangerous offender subject to sentencing under ORS 161.725 to ORS 161.737. Defendant was convicted by a jury. After the jury returned its verdict, the court ordered an evaluation pursuant to ORS 161.735 to determine whether defendant is a dangerous offender; defendant did not object. At sentencing, the trial court found that defendant met the criteria in ORS 161.725(1)(a) for a dangerous offender and, on defendant's rape conviction, sentenced him to a maximum indeterminate term of 30 year's imprisonment, with a 100-month minimum. ORS 161.725(1); ORS 161.737.

On appeal, defendant challenges the imposition of the dangerous offender sentence. Defendant concedes that he did not raise that issue in the trial court. He argues, however, that he was not required to do so because, consistent with Apprendi, factors such as those on which his dangerous offender sentence was based constitute, in effect, elements of an aggravated offense, and the state's failure to plead those elements in the charging instrument deprived the trial court of jurisdiction to enter a conviction for that aggravated offense. In the alternative, defendant argues that the trial court's imposition of a dangerous offender sentence is reviewable as an error of law apparent on the face of the record. ORAP 5.45(4)(b). On the merits, defendant again argues that, under Apprendi, the facts comprising the criteria for imposition of a dangerous offender sentence constitute elements of, in effect, an aggravated offense, because they increase the range of punishment to which a defendant is exposed. Defendant argues that, as in Apprendi, the state was required to allege the dangerous offender factors in the indictment, and the jury was required to find those factors beyond a reasonable doubt. Defendant argues that this court therefore must vacate his dangerous offender sentence and remand his case for resentencing.

The state responds that the trial court did not lack jurisdiction to sentence defendant because defendant was validly indicted and convicted for rape and contests only the sentence imposed for that crime. The state argues that, under that circumstance, his claim that his sentence is invalid is reviewable only if he preserved it for appeal, which he concededly did not, or if it meets the requirements for a claim of plain error. As to the latter, the state argues that defendant's claim of error does not meet those requirements, because the legal question presented by the claimed error—whether a dangerous offender sentence that is imposed as provided in ORS 161.725 to ORS 161.737 is inconsistent with the due process requirements established by the United States Supreme Court in Apprendi—is as yet unresolved and therefore is reasonably open to dispute.

On the merits, the state contends that, under State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), and State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982), defendant was entitled under Article I, section 11, of the Oregon Constitution, to a jury determination regarding any fact that related to the commission of his crime—that is, any fact that described the manner or circumstances in which defendant committed the crime—and that required or authorized an enhanced sentence for that crime. The state argues that, conversely, defendant was not entitled to a jury determination of a fact that served merely to characterize him, such as the existence and validity of prior convictions. According to the state, a determination that defendant met the criteria in ORS 161.725(1)(a)—that he was "suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another"—was a determination of the latter type, and defendant therefore was not entitled, under Article I, section 11, to a jury determination of that fact.

As to defendant's right to due process, the state contends that, although the dangerous offender statute authorizes the imposition of an enhanced sentence, Apprendi nevertheless does not require the state to allege the dangerous offender factors set out in ORS 161.725(1)(a) in the indictment and does not require the jury to find those factors beyond a reasonable doubt because, unlike the factor at issue in Apprendi—relating to the defendant's motivation in committing his crime— the factors in ORS 161.725(1)(a) relate only to defendant's character and not to commission of his crime.

As explained below, we conclude that we need not decide whether, under the Due Process Clause as elucidated and applied in Apprendi, the state was required to allege in the indictment and the jury was required to find beyond a reasonable doubt that defendant was dangerous by reason of "suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another," ORS 161.725(1)(a), because defendant failed to preserve his claim of error, and it is not otherwise reviewable.

We begin with defendant's contention that the alleged error was "jurisdictional" and therefore can be raised for the first time on appeal. Defendant appears to make two arguments in that regard. First, as noted above, relying on Apprendi, on State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992), and on State v. Guzman, 140 Or.App. 347, 914 P.2d 1120 (1996), defendant argues that the dangerous offender factors set out in ORS 161.725(1)(a) are, in effect, elements of an aggravated offense; that the indictment in this case failed to allege those purported elements and therefore did not validly charge the aggravated offense; and that the trial court therefore lacked jurisdiction to enter a conviction or sentence him for the aggravated offense. Relying on State v. Webb, 324 Or. 380, 927 P.2d 79 (1996), he also appears to argue that the trial court lacked subject-matter jurisdiction, that is, it lacked statutory authority to try his case. We reject both contentions.

We first consider defendant's argument that the trial court lacked jurisdiction to enter a conviction against him by reason of the indictment's failure to allege the relevant dangerous offender factors. See Wimber, 315 Or. at 109-10,

843 P.2d 424; see also State v. Crampton, 176 Or.App. 62, 66, 31 P.3d 430 (2001) (A defendant "may raise for the first time on appeal a demurrer to an indictment on the ground of failure to state facts constituting an offense, as provided in ORS 135.630(4)."). In order to determine the merits of that argument, we turn to the Supreme Court's decision in Apprendi.

In Apprendi, the defendant fired a gun into the home of an African-American family that had recently moved into a predominantly white neighborhood. 530 U.S. at 469, 120 S.Ct. 2348. Based on that conduct, the defendant pleaded guilty to, as pertinent here, possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. 2348. He subsequently was sentenced under a New Jersey statute providing for an extended term of imprisonment if, in committing a crime, a defendant "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 469, 120 S.Ct. 2348. The question thus presented was whether the Due Process Clause required the quoted factual determination to be made "by a jury on the basis of proof beyond a reasonable doubt." Id.

The Court began its analysis by noting that, under the applicable New Jersey statutes, the state was authorized to impose a particular punishment on the defendant if he unlawfully possessed a weapon and was authorized to impose additional punishment if he selected his victims with a purpose to intimidate them because of, among other possible reasons, their race. Id. at 476, 120 S.Ct. 2348. The Court stated that, consistent with due process, it was "a matter of simple...