State v. Febuary, 080982

• Decision Date: 12 November 2015
• Docket Number: A154662.,080982
• Citation: 274 Or.App. 820,361 P.3d 661
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Roger Robert FEBUARY, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 820

361 P.3d 661

STATE of Oregon, Plaintiff–Respondent,

v.Roger Robert FEBUARY, Defendant–Appellant.

080982

A154662.

Court of Appeals of Oregon.

Submitted May 19, 2015.

Decided Nov. 12, 2015.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and James Aaron, Assistant Attorney General, filed the brief for respondent.

Opinion

TOOKEY, J.

This case requires us to consider the contours of the prohibition against vindictive sentences for a defendant who is resentenced after a successful appeal. Defendant was originally convicted of five crimes, including providing alcohol to a person under 21 years of age (Count 2). The trial court imposed a total term of 170 months' imprisonment on the five convictions, with a term of 60 months' probation on Count 2. After a successful appeal, defendant pleaded guilty to two crimes, including providing alcohol to a person under 21 years of age (Count 2). When resentencing defendant, the trial court imposed a total term of 87 months' imprisonment on the two remaining convictions, with a term of 12 months' imprisonment on Count 2.

Defendant now appeals the resulting judgment of conviction as to his resentencing, arguing that the imposition of a term of 12 months' imprisonment on Count 2 denied him due process of law, in violation of his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, defendant argues that the court's resentencing on Count 2 violated the prohibition against presumptively vindictive sentences, as pronounced by the United States Supreme Court in North Carolina v. Pearce,395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and adopted by the Oregon Supreme Court in State v. Partain,349 Or. 10, 239 P.3d 232 (2010)(abandoning the per seprohibition on an increased sentence following a successful appeal in favor of a presumption against increased sentences, which can be overcome if the reasons for imposing an increased sentence are based on identified facts of which the original sentencing judge was unaware, appear in the record, and satisfy a reviewing court that the decision to impose an increased sentence was not a product of vindictiveness). We review for legal error. SeeORS 138.222(4)(a)(“In any appeal, the appellate court may review a claim that * * * [t]he sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence[.]”). Based on Partain,we conclude that the standard for measuring whether a new sentence triggers the presumption of vindictiveness is the aggregate approach; under that approach, the presumption of vindictiveness applies only when a trial court resentences a defendant to a longer or otherwise more severe total sentence. Because, in this case, the trial court did not resentence defendant to a longer or otherwise more severe total sentence, we conclude that the presumption of vindictiveness does not apply, and, in the absence of that presumption, that defendant failed to prove actual vindictiveness. Accordingly, we affirm.

The facts in this case are undisputed. Based on defendant's conduct with his 13–year–old stepdaughter, defendant was originally convicted of five crimes: two counts of sexual abuse in the first degree, ORS 163.427(Counts 1 and 4); one count of providing alcohol to a person under 21 years of age, ORS 471.410(2)(Count 2); one count of attempted sodomy in the second degree, ORS 163.395(Count 3); and one count of sexual harassment, ORS 166.065(4)(a)(Count 7). The trial court sentenced defendant as follows: 75 months' imprisonment on Count 1; 60 months' probation on Count 2; 20 months' imprisonment on Count 3; 75 months' imprisonment on Count 4; and 60 months' probation on Count 7. The trial court ordered the probationary terms to be served concurrently and the prison terms to be served consecutively, for a total of 170 months in prison. Defendant appealed, and, based on evidentiary error, we reversed and remanded the case for further proceedings. SeeState v. Febuary,253 Or.App. 658, 666, 292 P.3d 604 (2012)(concluding that evidence of defendant's prior bad acts with the victim's oldest sister was inadmissible and that the error in admitting that evidence was not harmless).

On remand, defendant agreed to plead guilty to two of the charged crimes in exchange for the prosecutor's agreement to dismiss three of the charged crimes. Pursuant to the resulting guilty plea, defendant was convicted of one count of sexual abuse in the first degree (Count 1) and one count of providing alcohol to a person under 21 years of age (Count 2). At the sentencing hearing, the prosecutor asked the court to impose a consecutive sentence of 12 months' imprisonment on Count 2. The prosecutor spoke at some length about the damage that defendant had inflicted on the victim and the victim's family and argued that the time should be served consecutively, in part, because defendant provided alcohol to the victim to facilitate the crime of first-degree sexual abuse. Defendant argued that the court lacked authority to sentence him to 12 months' imprisonment on Count 2 on the ground that such a sentence would violate the rule prohibiting presumptively vindictive sentences, which we discuss more fully below.

The trial court sentenced defendant to 75 months' imprisonment on Count 1 and 12 months' imprisonment on Count 2, and ordered those terms to be served consecutively, for a total of 87 months in prison. The court explained that, when imposing defendant's original sentence, the court could have sentenced defendant to jail time on Count 2, but “chose, with restraint, not to impose additional [jail] time then, because in the overall scheme, I thought the fourteen-plus years was sufficient punishment.” When deciding to impose additional jail time on Count 2 on remand, the court stated that it was “absolutely not [its] purpose” to punish defendant for appealing his original convictions. Indeed, after quoting extensively from Partain,the court stated:

“It's a non-vindictive reason to say, when I'm dealing with these two convictions, when, when the Providing Alcohol to a Minor wasn't just a matter of leaving a jug of whiskey on the coffee table for a child to use while they're watching television, this is a guy who offers his sick stepdaughter, who's home * * * from school sick, offers her vodka and wine, and then comes back later to touch her vagina.

“It is clearly * * * malicious. The provision of the alcohol to her. It was * * * with a very criminal intent. And that's what makes it way more than simply allowing an underage person to consume alcohol. This was done to facilitate the commission of the Sex Abuse in the First Degree, and it should be separately punishable.”

In addition, the court stated:

“And what I'm saying today is if, if this were all there were, if, if I hadn't done the first trial and if this came to me today for sentencing, would I give additional time for providing liquor to a stepdaughter when she's home sick? With, with the purpose in mind in providing that, to make it easier for him to commit Sex Abuse in the First Degree a little while later in the same home while the mother's gone and the sisters are gone? Absolutely.”

Defendant now appeals, renewing his argument that the trial court lacked authority to resentence him to a prison term of 12 months on Count 2. He contends that, because his new sentence on Count 2—12 months' imprisonment—is more severe than the sentence that he originally received on Count 2—60 months' probation—his new sentence on Count 2 is a presumptively vindictive sentence that was imposed in violation of his right to due process, under Pearceand Partain.Defendant acknowledges that the total sentence that he received after resentencing—87 months—is shorter than the total sentence that he originally received—170 months. However, defendant states, without development of any argument, that “the Partainrule should apply to the individual sentences imposed on each charge in a particular case.”

The state responds that the presumption of vindictiveness does not apply in this case, because defendant's new total sentence, which is “about half as long” as his original total sentence, is “less severe than the original total sentence.” Thus, according to the state, “[i]n the absence of evidence of actual vindictiveness, defendant's argument * * * fails.”

The Due Process Clause provides that “[n]o state shall * * * deprive any person of life, liberty, or property without due process of law.” “Due process of law * * * requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”

Pearce,395 U.S. at 725, 89 S.Ct. 2072. In addition, because “the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id.

To protect against vindictiveness and the apprehension of vindictiveness in resentencing, the United States Supreme Court announced, in Pearce,the following rule:

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

Id.at 726,...