State v. Gallegos

• Decision Date: 26 December 2007
• Docket Number: CF060154.,CF050603.,A132618 (control).,A132619.
• Citation: 174 P.3d 1086,217 Or. App. 248
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Michael Patrick GALLEGOS, Defendant-Appellant.
• Court: Oregon Court of Appeals

174 P.3d 1086

217 Or. App. 248

STATE of Oregon, Plaintiff-Respondent, v. Michael Patrick GALLEGOS, Defendant-Appellant.

CF050603.

CF060154.

A132618 (control).

A132619.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2007.

Decided December 26, 2007.

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

In these consolidated cases, defendant was convicted of multiple offenses. His only assignment of error on appeal pertains to the trial court's imposition of an upward departure sentence on a conviction for second-degree burglary in one of those cases. Specifically, defendant contends that the imposition of a departure sentence based on an aggravating factor — viz., that defendant was "on supervision" at the time he committed his crime — that is not specifically listed in the state sentencing guidelines violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.¹ For the reasons that follow, we reject that contention and, consequently, affirm.

The circumstances material to our review are undisputed. Defendant pleaded guilty to, among other crimes, second-degree burglary and waived his right to have a jury determine whether aggravating factors supported the imposition of departure sentences. The state presented evidence at sentencing that defendant was on post-prison supervision at the time he committed the burglary offense at issue on appeal and argued that that fact supported an upward departure sentence.

Defendant objected to the use of "any unenumerated aggravating factor," arguing that due process requires laws to be "sufficiently explicit to inform those who are subject to [the law] what conduct on their part will render them liable." When the trial court asked defense counsel to be more specific, counsel responded:

"My objection to this aggravating factor, Your Honor, is that it's not enumerated in the OARs. Therefore, the Defendant would not be on any notice that this factor could be used as an aggravating factor in this sort of sentencing hearing."

The court then asked if defendant was arguing that he lacked actual notice that the state intended to rely on the "on supervision" factor at sentencing, and defense counsel acknowledged that defendant knew that the state would rely on that factor before he entered into the plea agreement.

The court rejected defendant's due process argument and imposed a departure sentence of 19 months pursuant to ORS 137.717(3)(b), which permits the imposition of a "departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons." The court specifically found that defendant was on supervision at the time of the offense.

On appeal, defendant renews his arguments regarding lack of notice. In particular, defendant asserts:

"OAR 213-008-0002(1)(b)(A)-(K) establishes a list of `aggravating factors [that] may be considered in determining whether substantial and compelling reasons for a departure exist[.]' OAR 213-008-0002(1). The list is intended to be nonexclusive. Id. The `on supervision' factor is not among those enumerated in OAR 213-008-0002(1)(b). Therefore, it violates the federal proscription against ex post facto laws because it fails to `give fair warning of [its] effect and permit individuals to rely on [its] meaning until explicitly changed.' Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977))[.] * * *

"* * * * *

"* * * [D]efendant cannot be held to have known, when he allegedly committed his crimes that this court had created an aggravating factor that could double the penalty to which he could be exposed."²

(Brackets in original.)

The state responds, as an initial matter, that this court lacks jurisdiction over the appeal under ORS 138.050 or, in the alternative, that defendant's claim is unreviewable under ORS 138.222. We have addressed and rejected essentially the same arguments in State v. Stubbs, 193 Or.App. 595, 91 P.3d 774, rev. den., 337 Or. 669, 104 P.3d 601 (2004), and State v. Arnold, 214 Or.App. 201, 164 P.3d 334 (2007). We reject the state's appealability and reviewability arguments without further discussion, and turn to the merits of the due process question.

A law may violate the Due Process Clause if it "`fails to provide fair warning'" of what conduct is prohibited. State v. Hutchins, 214 Or.App. 260, 265, 164 P.3d 318 (2007) (quoting State v. Illig-Renn, 341 Or. 228, 238-39, 142 P.3d 62 (2006)). A term, however, need not be defined "with such exactitude that a person could determine in advance whether specific conduct in all possible factual circumstances will be found to be an offense." State v. Page, 129 Or.App. 558, 563, 879 P.2d 903 (1994). Nevertheless, the operative language of the provision must be such that a person "of common intelligence can understand what is prohibited." Id. Although that test is phrased in terms of "offenses," we have applied the same general type of analysis to challenges to various aspects of sentencing as well. See, e.g., State v. Moeller, 105 Or.App. 434, 806 P.2d 130, rev. dismissed, 312 Or. 76, 815 P.2d 701 (1991) (concluding that drug "scheme or network" crime seriousness enhancement factor was unconstitutionally vague); State v. Smith, 66 Or.App. 374, 675 P.2d 1060, rev. den., 297 Or. 339, 683 P.2d 1370 (1984) (considering due process vagueness challenge to dangerous offender sentencing factors).

The nature and scope of defendant's due process/lack of notice challenges are not entirely clear. However, we understand defendant to raise two overarching arguments. First, because the listing of "aggravating factors" in OAR 213-008-0002(1) is, by its terms, "nonexclusive," that provision does not afford fair notice as to the totality of the circumstances that can result in the imposition of enhanced punishment. Second, and more narrowly, because the "on supervision" factor is a nonenumerated factor-that is, a factor not specifically identified in OAR 213-008-0002(1)(b) — defendant was not afforded notice, before he committed the burglary, that his supervisory status could result in enhanced punishment. In broad terms, defendant's first argument is functionally akin to a "facial" challenge, and his second argument is an "as applied" challenge.³

In Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Court described the standards for evaluating facial vagueness challenges to provisions as failing to give fair warning of proscribed conduct and its potential consequences:

"`[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.' United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). See United States v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). `One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.' Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). The rationale is evident: to sustain such a challenge, the complainant must prove that the enactment is vague `"not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."' Coates v. City of Cincinnati, 402 U.S. 611, 614[, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971)]. Such a provision simply has no core.' Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)."

(Emphasis and brackets in original.) See also State v. Chakerian, 325 Or. 370, 380-81, 938 P.2d 756 (1997) (applying same standard). Thus, to successfully maintain his ostensibly "facial" challenge, defendant must demonstrate that "no standard of conduct is specified at all" in OAR 213-008-0002(1). Coates, 402 U.S. at 614, 91 S.Ct. 1686. Conversely, if that rule "requires a person to conform his conduct to an imprecise but comprehensible normative standard," it is not unconstitutionally vague. Id.

We turn to the text of the challenged rule. Because we read the challenged text in context, we quote the entire provision concerning aggravating factors, rather than just the "nonexclusivity" provision that defendant challenges. OAR 213-008-0002(1) provides:

"Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of * * * aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

"* * * * *

"(b) Aggravating factors:

"(A) Deliberate cruelty to victim.

"(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.

"(C) Threat of or actual violence toward a witness or victim.

"(D) Persistent involvement in similar offenses or repetitive assaults. This factor may be cited when consecutive sentences are imposed only if the persistent involvement in similar offenses or repetitive assaults is unrelated to the current offense.

"(E) Use of a weapon in the commission of the offense.

"(F) The offense involved a violation of public trust or professional responsibility.

"(G) The offense involved multiple victims or...