State v. Dilts

• Citation: 39 P.3d 276,179 Or. App. 238
• Parties: STATE of Oregon, Respondent, v. Randy Everett DILTS, Appellant.
• Decision Date: 30 January 2002
• Court: Court of Appeals of Oregon

39 P.3d 276

179 Or. App. 238

STATE of Oregon, Respondent, v. Randy Everett DILTS, Appellant.

99CR0172; A106034

Court of Appeals of Oregon.

Argued and Submitted August 29, 2001.

Decided January 30, 2002.

Daniel M. Carroll, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.

Robert M. Atkinson, 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 BREWER, Judge, and COLLINS, Judge pro tempore.

BREWER, J.

Defendant pleaded guilty to assault in the third degree, ORS 163.165. The trial court found that the assault was motivated in part by the victim's color and imposed an upward durational departure sentence of 36 months' imprisonment. Defendant appeals from that sentence, asserting that evidence in the record does not support the trial court's finding supporting the departure. ORS 138.222(3)(a). Defendant also asserts that imposition of the departure sentence based on a fact not pleaded in the accusatory instrument or proved beyond a reasonable doubt or admitted by him violated his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We affirm.

We take the undisputed facts from the record. On approximately January 24, 1999, while incarcerated in the Coos County Jail, defendant struck another inmate with a plastic toilet brush. Defendant later wrote a letter to a friend in which he referred to the victim by use of a racial epithet.

At sentencing, the prosecutor sought an upward durational departure based on defendant's use of the toilet brush as a weapon and on the ground that the offense was motivated by the victim's "race or color." As pertinent to the latter factor, the prosecutor read into the record portions of defendant's letter described above and also represented to the court that, according to the victim, defendant had addressed him by use of a racial epithet before the assault.

In objecting to imposition of a departure sentence, defendant asserted that the assault

"wasn't racially motivated. It had nothing to do with color. * * *

"* * * * *

"* * * when you're in the heat of an argument and you've got somebody telling you that—you know, in other words you're a piece of shit and all this other stuff, you kind of think of other words to tell him what he is.

"* * * * *

"And this incident was not racially motivated or nothing. My mom dates a black guy. I'm not—I'm not into this racial crap. It had nothing to do with racial."

Defendant's counsel argued that defendant's letter did not accurately reflect his motivation for committing the crime. Counsel also argued that defendant's use of a weapon was "not charged. It's not accused. And [defendant] didn't admit that as part of the—of his plea in this case." Counsel then summarized, stating that "I would ask the Court to take that into account and respectfully object to the Court considering matters that weren't alleged in the Indictment or admitted in Court as part of the plea."

The trial court found:

"[Defendant], you wrote the letter afterwards. You described the nature of the conduct, and the conduct you engaged in with another individual. You know, the words you choose describe your thought processes, and those are exactly what occurred in this process as far as I'm concerned.

"So, on that basis, I do find that there's an aggravating factor * * * and that it was motivated in part by the color of this individual."

As previously noted, defendant challenges the imposition of a departure sentence on evidentiary grounds and on the ground that it violated Due Process Clause guarantees relating to pleading and proof of his crime. We first consider whether evidence in the record supports the trial court's factual finding that defendant's offense was motivated in part by the victim's color.

ORS 137.080(1) provides that, "in a case where discretion is conferred upon the court as to the extent of the punishment to be inflicted," the court may hear evidence of aggravating or mitigating circumstances. "[T]he consideration of aggravating and mitigating circumstances as to felonies committed on or after November 1, 1989, including the maximum sentence that may be imposed because of aggravating circumstances, shall be in accordance with rules of the Oregon Criminal Justice Commission." ORS 137.080(2). Under ORS 137.090(1), evidence supporting the existence of an aggravating or mitigating factor includes:

"(a) Any evidence received during the proceeding;

"(b) The presentence report, where one is available; and

"(c) Any other evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable."

Applicable rules include OAR 213-008-0001, under which a sentencing court may depart from a presumptive sentence when it has substantial and compelling reasons to do so. In addition, OAR 213-008-0002 provides a nonexclusive list of mitigating and aggravating factors that a trial court may consider when determining whether to depart from a presumptive sentence. Under OAR 213-008-0002(1)(b)(K), the trial court may determine that substantial and compelling reasons for a departure sentence exist when the offense "was motivated entirely or in part by the race[or] color * * * of the victim." Finally, "[i]f the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure." OAR 213-008-0001. Appellate review of a departure sentence is limited to whether the sentencing court's findings of facts and reasons justifying a departure are supported by evidence in the record and whether, as a matter of law, they constitute substantial and compelling reasons for departure. ORS 138.222(3); State v. Wolff, 174 Or.App. 367, 27 P.3d 145 (2001).

As noted, the fact that commission of an offense was motivated in part by the victim's race or color is established in OAR 213-008-0002(1)(b)(K) as a substantial and compelling reason for a departure. In addition, and contrary to defendant's assertion, the record supports the trial court's finding relating to that factor. The contents of defendant's letter to his friend and the prosecutor's representations regarding defendant's earlier comments to the victim indicate that defendant had referred to the victim, both before and after the assault, by use of a racial slur. That is enough to demonstrate that, as the trial court found, defendant's conduct toward the victim was motivated, at least in part, by the victim's color. We turn to defendant's federal constitutional challenge.¹ Defendant argues that imposition on him of a departure sentence contravened the Due Process Clause as interpreted and applied in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." According to defendant, under the sentencing guidelines, in the absence of substantial and compelling reasons to depart from a presumptive sentence, the prescribed statutory maximum for a crime is the presumptive sentence. Relatedly, defendant argues that, in effect, the departure factor in his case constituted an "essential element" of a different, aggravated offense, which was required to be pleaded and proved.

The state initially responds that defendant failed to preserve his argument relating to pleading or proof of the applicable departure factor; that, because the trial court had jurisdiction to enter a conviction for assault in the third degree, any error was not jurisdictional; and that it was not plain error. The state therefore urges us not to consider the asserted error. On the merits, the state responds that defendant's departure sentence did not violate the Due Process Clause as applied in Apprendi, because the maximum possible sentencing guidelines sentence for an offense is established by ORS 161.605² and defendant's sentence was consistent with that statutory maximum.

We first consider whether defendant preserved his claimed constitutional error. As stated above, in objecting to imposition of a departure sentence, defendant's counsel argued that defendant's crime was not motivated by the victim's race or color and objected to the court's consideration of defendant's use of a weapon. Counsel summarized his arguments in opposition to a departure sentence by stating that defendant objected to the court "considering matters that weren't alleged in the Indictment or admitted in Court as part of the plea." (Emphasis added.) On that record, we conclude that defendant adequately presented to the trial court, and preserved for appeal, his claim of procedural error relating to imposition of a departure sentence based on the victim's color.

We turn to the merits. We review the constitutionality of defendant's departure sentence under ORS 138.050(1)(a) and ORS 138.222(4)(a). See State v. Jackson, 141 Or. App. 123, 125, 917 P.2d 34 (1996) (defendant pleaded guilty; on appeal, she challenged her sentence on statutory and constitutional grounds; court reviewed under ORS 138.050(1)(a) and ORS 138.222(4)(a)).³ 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. at 2351,147 L.Ed.2d at 442. Based on that conduct, defendant pleaded guilty to, among other crimes, possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. at 2352, 147 L.Ed.2d at 442-43. Under New Jersey law, that crime carried a penalty range of five to ten years. Id. at 470, 120 S.Ct. at 2352, 147 L.Ed.2d at 442. A...