State v. Dilts

• Decision Date: 16 December 2004
• Citation: 103 P.3d 95,337 Or. 645,337 Ore. 645
• Parties: STATE of Oregon, Respondent on Review, v. Randy Everett DILTS, Petitioner on Review.
• Court: Oregon Supreme Court

103 P.3d 95

337 Or. 645

337 Ore. 645

STATE of Oregon, Respondent on Review, v. Randy Everett DILTS, Petitioner on Review.

99CR-0172; CA A106034; SC S49525; USSC 03-9412

Supreme Court of Oregon, En Banc.

Submitted September 7, 2004.

Decided December 16, 2004.

Eric M. Cumfer, Senior Deputy Public Defender, Salem, filed the briefs for petitioner on review. With him on the briefs were Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Peter Gartlan, Chief Defender.

Jennifer S. Lloyd, Assistant Attorney General, Salem, filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

BALMER, J.

This case is before us on remand from the United States Supreme Court. In our prior decision, we affirmed defendant's conviction and sentence for assault. State v. Dilts, 336 Or. 158, 82 P.3d 593 (2003) (Dilts I). Defendant petitioned for a writ of certiorari from the United States Supreme Court, and the Court vacated the judgment in Dilts I and remanded the case to us for further consideration in light of the Court's decision in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Dilts v. Oregon, 542 U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 809 (2004). For the reasons that follow, we now reverse the decision of the Court of Appeals and the judgment of the trial court, and remand the case to the trial court for further proceedings.

We begin by briefly reviewing the facts, the parties' arguments, and the decision in Dilts I. This court summarized the procedural background of the case in Dilts I:

"Defendant pleaded guilty to assault in the third degree. ORS 163.165. The trial court found that the crime was racially motivated and imposed an upward departure sentence under the Oregon Felony Sentencing Guidelines (sentencing guidelines). The trial court sentenced defendant to 36 months' imprisonment and an additional 36-month period of post-prison supervision. Defendant appealed from that sentence, and the Court of Appeals affirmed. State v. Dilts, 179 Or.App. 238, 39 P.3d 276 (2002). Defendant sought review, arguing that the trial court violated his state and federal jury trial rights and his federal due process rights by imposing a departure sentence based on a fact not pleaded in the indictment or proved beyond a reasonable doubt."

336 Or. at 160, 82 P.3d 593.

On review in this court, defendant argued that, based on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), federal constitutional requirements for jury trial and due process prohibited the trial court from imposing a sentence greater than the "presumptive sentence" established in the sentencing guidelines and determined by the seriousness of the crime and defendant's criminal history.¹ The presumptive sentence for defendant's crime was 15 to 18 months' imprisonment, but, as noted, the trial court had found that the crime had been racially motivated and, as the sentencing guidelines permitted, had imposed a sentence of 36 months' imprisonment and an additional 36 months of post-prison supervision. Dilts I, 336 Or. at 163-64,82 P.3d 593.

In this court, defendant maintained that, under Apprendi, the trial court could not increase his sentence for assault above the presumptive range based on the allegedly racial motivation for the assault unless the state alleged racial motivation in the indictment and proved it to a jury beyond a reasonable doubt. The state responded that Apprendi did not bar the upward departure in defendant's sentence as long as defendant's sentence was not greater than the statutory maximum sentence for the crime that defendant had committed.² Because third-degree assault is a Class C felony, ORS 163.165(2), for which the statutory maximum sentence is five years' imprisonment, ORS 161.605(3), the state argued that defendant's federal due process and jury trial rights had not been violated by the upward departure from the guidelines' presumptive sentence, as long as the sentence was not more than five years' imprisonment.³

In Dilts I, this court affirmed defendant's sentence, holding that ORS 161.605 established the maximum penalty for the crime that defendant had committed and that defendant's sentence therefore was constitutional under Apprendi because it had not exceeded that prescribed statutory maximum.⁴ Dilts I, 336 Or. at 175-76, 82 P.3d 593. In doing so, this court noted that its decision was consistent with decisions from state courts in Minnesota and Washington, including State v. Blakely, 111 Wash.App. 851, 47 P.3d 149 (2002), and further noted that the United States Supreme Court had granted the defendant's petition for certiorari in Blakely. Dilts I, 336 Or. at 169 n. 11, 82 P.3d 593. Subsequent to this court's decision in Dilts I, the Court reversed the decision of the Washington Court of Appeals in Blakely. As noted, defendant also petitioned for a writ of certiorari, and, following its decision in Blakely, the Court vacated and remanded this court's judgment in Dilts I for further proceedings in light of Blakely.

On remand, defendant argues that, under Blakely, the sentence that the trial court imposed and that this court affirmed in Dilts I violates his federal jury trial and due process rights and that this court should remand to the trial court for resentencing to a sentence within the presumptive range.

The state agrees that this court's decision in Dilts I "cannot be reconciled with the constitutional requirements set forth in Blakely." Specifically, the state concedes that Blakely rejected the proposition, upon which this court based its holding in Dilts I, that the statutory maximum sentence for Apprendi purposes is the statutory indeterminate maximum sentence, rather than the guidelines' presumptive sentence. The state argues, however, that this court should sever the requirement in OAR 213-008-0001 that makes the presumptive sentence mandatory. According to the state, if this court treats the presumptive sentence merely as a "recommended" sentence and permits the trial court either to impose that sentence or a departure sentence based on the factors in the guidelines, then the presumptive sentence no longer will be the "statutory maximum," and the Oregon sentencing scheme will be consistent with Blakely and Apprendi. By applying the sentencing guidelines in that way, the state argues, this court can and should affirm defendant's sentence. Alternatively, the state argues that, to comply with Blakely, this court should remand the case to the trial court to permit a jury to consider aggravating facts that could permit a sentence greater than the guidelines' presumptive sentence.⁵

We now turn to the Supreme Court's decision in Blakely and the effect of that decision on defendant's sentence here. The defendant in Blakely pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm. Blakely, ___ U.S. at ___-___, 124 S.Ct. at 2534-35. Washington's sentencing guidelines, like Oregon's, establish a presumptive sentence — known as the "standard range" — for a particular crime. Id. at 2535. They also permit the sentencing court to impose a sentence above the standard range — an "exceptional" sentence — if the court finds "substantial and compelling reasons" to justify such a sentence. Id. (former Revised Code of Washington (RCW) Section 9.94A.120(2), RCW Section 9.94A.505). Under the Washington sentencing guidelines, the standard range for the crime to which defendant pleaded guilty was 49 to 53 months. Id. The trial court, however, found that the defendant had acted with "deliberate cruelty," one of several statutorily enumerated grounds for departure in a domestic violence case, and, on that basis, it imposed an exceptional sentence of 90 months. Id. The defendant argued that imposing a sentence in excess of the standard-range maximum, based on aggravating facts that neither were admitted by him nor found by a jury, violated his jury trial and due process rights as articulated in Apprendi. Washington responded that the relevant statutory maximum for Apprendi purposes was the 10-year maximum for Class B felonies, including second-degree kidnapping, rather than the 53-month standard-range maximum under the sentencing guidelines. Blakely, ___ U.S. at ___, 124 S. Ct. at 2537.

The Court rejected Washington's argument:

"Our precedents make clear * * * that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

Id. (citations omitted; emphasis in original). The Court noted that, if the trial court had imposed the 90-month sentence solely on the basis of the plea — that is, without making the additional finding regarding deliberate cruelty — then the trial court would have been reversed. Id. at 2538. Because the trial court had imposed a sentence that exceeded the statutory maximum and did so because it had found additional facts that had not been admitted by the defendant or proved to a jury, the "sentencing procedure did not comply with the Sixth Amendment." Accordingly, the defendant's sentence was invalid. Id.

The Court's decision in Blakely compels us to reverse our decision in Dilts I. As relevant to the Court's holding in Blakely, Oregon's sentencing scheme is not materially different from Washington's. The Washington sentencing guidelines establish a "standard range," and the trial court may impose a sentence that exceeds the standard range maximum only if the court makes additional findings. Under that sentencing scheme, the Court held that a defendant has a constitutional right to...