State v. Cuevas

• Citation: 361 P.3d 581,358 Or. 147
• Decision Date: 13 November 2015
• Docket Number: CA A149668,CC 09082394C,SC S062464.
• Parties: STATE of Oregon, Petitioner on Review, v. Santos CUEVAS, Respondent on Review.
• Court: Supreme Court of Oregon

358 Or. 147

361 P.3d 581

STATE of Oregon, Petitioner on Review,

v.Santos CUEVAS, Respondent on Review.

CC 09082394C

CA A149668

SC S062464.

Supreme Court of Oregon, En Banc.

Argued and Submitted Feb. 3, 2015.

Decided Nov. 13, 2015.

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for respondent on review.

Kyle Krohn, Deputy Public Defender, Salem, filed the brief for amicus curiae Office of Public Defense Services. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Opinion

KISTLER, J.

This case involves two sentencing guidelines rules. One rule directs trial courts to count a defendant's convictions at the time of sentencing in calculating the defendant's criminal history. OAR 213–004–0006(2). The other rule limits the length of a consecutive sentence that a trial court can impose.

OAR 213–012–0020(2). On appeal, the Court of Appeals concluded that both rules increased defendant's sentence based on facts that, under Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a jury must find beyond a reasonable doubt. State v. Cuevas,263 Or.App. 94, 114, 326 P.3d 1242 (2014). Although the Court of Appeals concluded that the trial court should have submitted those facts to the jury, it held that the failure to do so was harmless error. Id.On review, we hold that the two sentencing guidelines rules do not implicate Apprendiand affirm the Court of Appeals decision on that ground.

A jury convicted defendant of 10 counts of rape, sodomy, and sexual abuse.¹When a jury finds a defendant guilty of multiple offenses, a trial court must make two related but separate sentencing decisions. One decision involves the length of the sentence for each conviction. The other involves whether the convictions should run concurrently or consecutively. Oregon has adopted statutes and sentencing guidelines rules to assist trial courts in making those decisions.

For most felony convictions, Oregon's sentencing guidelines prescribe a presumptive sentence based on the seriousness of the offense and the defendant's criminal history.²See State v. Speedis,350 Or. 424, 427, 256 P.3d 1061 (2011)(describing the sentencing guidelines). The guidelines also instruct trial courts on how to calculate a defendant's criminal history. As discussed below, the guidelines provide that, when a court sentences a defendant for multiple convictions in a single sentencing proceeding, the sentence imposed on the first conviction counts as part of the defendant's criminal history in determining the sentence for the second conviction unless the convictions arose out of a single criminal episode. OAR 213–004–0006(2); State v. Bucholz,317 Or. 309, 314–15, 855 P.2d 1100 (1993)(interpreting an earlier version of that rule).

Once a trial court has determined the sentence for each individual conviction, the remaining question is whether the sentences for those convictions should be imposed consecutively or concurrently. Under ORS 137.123, multiple convictions will be sentenced concurrently unless the trial court finds (1) that the offenses that gave rise to those convictions did not occur as part of the same course of conduct or (2) even if the offenses occurred as part of the same course of conduct, one offense was not incidental to the other or the two offenses resulted in separate harms. If the court makes one of those findings, it may impose consecutive sentences.

That is not the end of the analysis, however. If a trial court decides to sentence convictions consecutively, the sentencing guidelines limit the length of the aggregate consecutive sentence that the trial court may impose if the convictions that resulted in the aggregate consecutive sentence arose out of a single criminal episode. OAR 213–012–0020(2)(a); State v. Miller,317 Or. 297, 306, 855 P.2d 1093 (1993)(interpreting an earlier version of that rule). As discussed in greater detail below, if the convictions that the court sentenced consecutively arose out of a single criminal episode, the sentencing guidelines limit the length of the aggregate consecutive sentence by assigning the lowest possible criminal history score (and thus the lowest sentencing range) to each sentence that is imposed consecutively. OAR 213–012–0020(2)(a).

In this case, the trial court merged two of defendant's 10 convictions into two other convictions.³The court then imposed a presumptive sentence on each of defendant's remaining eight convictions based on the seriousness of each offense and defendant's criminal history.⁴After the trial court determined the sentence on defendant's first conviction, it counted that conviction as part of his criminal history in determining the presumptive sentence for defendant's second conviction. Including the first conviction as part of defendant's criminal history increased his criminal history score and, for that reason, resulted in a higher presumptive sentence for the second conviction. The court followed the same course in determining the presumptive sentences for the remainder of defendant's convictions.⁵

The court found that each of defendant's eight convictions arose out of a separate criminal episode. Given that finding, the court exercised its discretion to sentence each of those convictions consecutively. ORS 137.123. Finally, the trial court found that the limits that the sentencing guidelines place on the length of the aggregate consecutive sentence did not apply because the convictions did not arise out of a single criminal episode.

Throughout this litigation, defendant has argued that the trial court did not apply the two sentencing guidelines rules consistently with the federal constitution. The Court of Appeals agreed with defendant. Specifically, it agreed that each rule increased defendant's sentence on the basis of a factual issue—whether defendant's convictions arose out of the same or separate criminal episodes. See Cuevas,263 Or.App. at 113–15, 326 P.3d 1242. It also agreed that defendant had a right under the Sixth and Fourteenth Amendments to have the jury decide that fact before the trial court applied those two sentencing rules to calculate defendant's sentence. Id.The Court of Appeals held, however, that the trial court's failure to submit that factual issue to the jury was harmless because the only conclusion that a reasonable juror could have reached on this record was that defendant's eight convictions arose out of separate criminal episodes. Id.

The state petitioned for review, even though the Court of Appeals had affirmed the trial court's judgment on harmless error grounds. The state argued that the Court of Appeals had misconstrued both the sentencing guidelines rules and Apprendi.The state contended that the Court of Appeals' ruling, if left uncorrected, would result in unnecessary jury determinations in similar cases in the future. We allowed the state's petition for review to consider whether the Court of Appeals erred in applying Apprendito the two sentencing guidelines rules. See State v. Snyder,337 Or. 410, 97 P.3d 1181 (2004)(allowing review in a similar procedural posture).

On review, defendant argues initially that we should overrule this court's decisions in Millerand Bucholz.He contends that this court erred in limiting the sentencing guidelines rules at issue in those cases (and this one) to instances in which a defendant's convictions arose out of the same criminal episode. In defendant's view, each of those rules applies without regard to whether the convictions arose out of the same or separate criminal episodes. Defendant argues alternatively that, even if we do not overrule Millerand Bucholz,the question whether his convictions arose out of separate criminal episodes was a necessary factual predicate to increasing his sentence under both sentencing guideline rules. It follows, he contends, that he has a federal constitutional right under Apprendito require that a jury find that fact beyond a reasonable doubt.

We begin with defendant's argument that Millerand Bucholzshould be overruled. If we were to agree with defendant on that issue, we would not need to reach the federal constitutional issues that he pressed below and that the Court of Appeals decided. As we read this court's decisions in Millerand Bucholz,they start from a proposition that the court identified in Miller.The court explained that, when the Criminal Justice Sentencing Commission drafted the sentencing guidelines rules, “only single-episode criminal acts could have been joined in one indictment or criminal case” and sentenced in a single judicial proceeding. Miller,317 Or. at 303, 855 P.2d 1093. The court noted that the sentencing guidelines rules were consistent with that assumption. Id.at 304–05, 855 P.2d 1093. That is, they limited the length of consecutive sentences imposed in a single judicial proceeding on the assumption that the offenses being sentenced in that proceeding arose out of a single criminal episode. Id.However, the sentencing guidelines did not place that limit on sentences imposed in separate proceedings, which would have arisen out of separate criminal episodes. Id.

In 1989, the legislature changed the statutes to permit offenses that arose out of separate criminal episodes to be joined in the same indictment. See id.at 303, 855 P.2d 1093; Or. Laws 1989, ch. 842, § 1. As a result of that statutory change, offenses sentenced in a single criminal proceeding could arise out of separate criminal episodes. The court gave effect to that statutory change by interpreting the sentencing guidelines rule that limits the aggregate length of consecutive sentences to apply only to offenses arising out of a single criminal episode. Miller,317 Or. at 306, 855 P.2d 1093. The court reasoned that, if it...