State v. Golden, A161340 (Control)
| Decision Date | 25 July 2018 |
| Docket Number | A161340 (Control),A161341 |
| Citation | 426 P.3d 172,293 Or.App. 14 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jacob Jerome GOLDEN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.
In this consolidated criminal appeal, defendant challenges the trial court’s entry of a second amended judgment in case number 15CR42641. That second amended judgment reflects the trial court’s restructuring of the sentencing package that the court had imposed in the original judgment and in a first amended judgment (which imposed the same sentence as the original judgment, with the addition of restitution). Defendant contends that the trial court lacked authority to enter the second amended judgment once his sentence had been executed because that judgment impermissibly modified the sentence that the court had initially imposed, with the result that defendant will serve a greater amount of time in prison. Defendant acknowledges that the argument he makes on appeal is unpreserved, but he contends that the trial court plainly erred and asks us to exercise our discretion to correct that error. For the reasons set out below, we agree with defendant that the trial court plainly erred. It is beyond dispute that the court lacked authority to change the terms of defendant’s sentence once that sentence had been executed; it also is plain from the record that the court did, in fact, change the terms of defendant’s sentence when it entered the second amendment judgment. Moreover, under the circumstances presented by this case, we conclude that justice is served by correcting the error. Accordingly, we reverse and remand in case number 15CR42641 with instructions to reinstate the first amended judgment.1
For purposes of this appeal, the facts are undisputed. At a November 2015 hearing, the trial court imposed sentences in three separate cases in which defendant had been convicted of multiple crimes. First, the court addressed a 2013 case, case number 201320015, in which defendant had pleaded guilty to two counts of identity theft and had received a downward departure sentence of probation instead of the presumptive sentence, which would have included a 30-month term of incarceration on each count. At the November 2015 hearing, the court revoked defendant’s probation and sentenced defendant to consecutive 30-month terms of incarceration on each of the two counts in the 2013 case.2 Defendant does not challenge that sentence in this appeal.
As the hearing continued, the court next announced sentence in case number 15CR42641, in which defendant had pleaded guilty to one count of identity theft (Count 1) and two counts of first-degree theft (Count 2 and Count 4). The court sentenced defendant to 30 months’ incarceration on each count and described how defendant would serve those 30-month terms: Next, the court announced sentence in case number 15CR47134, in which defendant had pleaded guilty to two counts of identity theft. Again, the court sentenced defendant to 30 months incarceration on each of the two counts. It then stated, "They [the two 30-month terms] are concurrent to each other; however, they are consecutive to both other cases." The court concluded, "That’s a total of 150 months in the Oregon Department of Corrections."
On November 5, 2015, the court entered judgments accurately reflecting the sentences that it had announced orally. In case number 15CR42641, the November 5 judgment described how the court had sentenced defendant on the three counts in that case. With respect to Count 1, the judgment stated:
For Count 2, the judgment stated:
Finally, for Count 4, the judgment stated:
"Defendant is sentenced to the custody of [ODOC], for a period of 30 month(s). * * *"
In contrast to how it described the sentences on Counts 1 and 2, the judgment did not state whether the sentence on Count 4 would be concurrent with, or consecutive to, defendant’s other sentences.3
On November 17, 2015, the trial court entered an amended judgment in case number 15CR42641. That first amended judgment added a requirement that defendant pay restitution on one of the theft convictions; it did not otherwise materially change the terms of defendant’s sentence.
In the meantime, an ODOC analyst had sent a letter to the prosecutor (copied to defense counsel and the trial court) expressing her opinion that the judgments in the three cases included "conflicting language" regarding consecutive and concurrent sentences. The letter explained how ODOC had interpreted the judgments, resulting in a total term of incarceration across the three cases of 120 months (not 150 months, as the trial court had stated at the sentencing hearing). The letter further stated that, if ODOC’s understanding of the sentence was incorrect, it "would require an amended judgment from the courts."
The record includes little indication of what process followed the parties’ receipt of that letter. However, on December 2, 2015, the trial court entered a second amended judgment in case number 15CR42641—the judgment that defendant challenges on appeal. The second amended judgment, like the two that came before it, imposed 30-month incarceration terms on each of the three counts. However, it differed in its identification of which terms would run concurrently and which would be consecutive. For Count 1, the second amended judgment states:
On Count 2, the second amended judgment states:
And on Count 4, the second amended judgment states:
"Defendant is sentenced to the custody of [ODOC], for a period of 30 month(s). * * * "
Thus, the second amended judgment in case number 15CR42641 differs from those that preceded it in two ways. First, the second amended judgment does not say (as did the other judgments) that the sentence on Count 1 would be concurrent to the sentence on Count 2. Second, the second amended judgment states that the sentence on Count 2 will run consecutively to the sentence on Count 1; the previous judgments had stated, instead, that the sentence on Count 2 would "be consecutive to * * * Count 4." The parties agree (as do we) that entry of the second amended judgment in case number 15CR42641—considered together with the sentences imposed in the other two cases—results in a total of 150 months incarceration across the three cases (60 months from the sentences in the 2013 case; 30 months’ consecutive on Count 1 in case number 15CR42641; 30 months consecutive on Count 2 in that case; and a total of 30 more months from the sentences in case number 15CR47134).
Defendant makes a single argument on appeal, assigning error to entry of the second amended judgment. Defendant contends that the trial court lacked authority to enter that judgment because it impermissibly increased the sentence that the trial court had previously imposed by ordering the sentence on Count 2 to run consecutively to the sentence on Count 1 (rather than concurrently, as stated in the original and first amended judgments). He asserts:
As noted, defendant acknowledges that he did not object to entry of the second amended judgment. However, he contends that the trial court plainly erred by increasing his sentence and he asks us to exercise our discretion to correct that error.
In response, the state acknowledges "the common-law rule that, once a valid sentence is executed—that is, once a defendant begins serving it—the trial court loses jurisdiction over the case and, thus, power to modify the sentence." State v. Johnson , 242 Or. App. 279, 285, 255 P.3d 547, rev. den. , 350 Or. 530, 257 P.3d 1020 (2011). Moreover, the state does not dispute that defendant’s sentence had been executed by the time the court entered the second amended judgment. Nonetheless, the state contends that, for reasons we discuss in detail below, the trial court did not plainly err by entering the second amended judgment.
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State v. Redmond
...provision to govern post-judgment motions that is now codified at ORS 137.172. Or. Laws 2017, ch. 529, § 20; see State v. Golden , 293 Or.App. 14, 21 n. 4, 426 P.3d 172 (2018) (discussing repeal of ORS 138.083 ). All references in this opinion are to former ORS 138.083 (2013), the operative......