State v. Gornick

• Decision Date: 08 December 2004
• Parties: STATE of Oregon, Respondent, v. Thomas J. GORNICK, Appellant.
• Court: Oregon Court of Appeals

102 P.3d 734

196 Or. App. 397

STATE of Oregon, Respondent, v. Thomas J. GORNICK, Appellant.

02C53376; A121042.

Court of Appeals of Oregon.

Argued and submitted September 21, 2004.

Decided December 8, 2004.

Monica L. Finch, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jonathan H. Fussner, 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 LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

BREWER, C. J.

Defendant pleaded guilty to assault in the third degree. ORS 163.165. After accepting defendant's guilty plea, the trial court found several aggravating factors that it deemed to be substantial and compelling reasons to impose an upward durational departure sentence.¹ Defendant appeals, arguing that, under Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the trial court lacked authority to impose a departure sentence based on facts that were neither admitted to by defendant nor pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Defendant concedes that he failed to preserve his argument at the sentencing hearing, but he argues that the error is apparent on the face of the record and that we should exercise our discretion to correct it. We agree and remand for resentencing.

Defendant was indicted for third-degree assault after spitting at a staff member at MacLaren Youth Correctional Facility, where defendant was incarcerated. He filed a petition to enter a guilty plea in the trial court. The petition included the following statements:

"I am the defendant in the above case and I wish to plead Guilty to the crime(s) of Assault 3. * * *

"I have read and reviewed the charging instrument in this case with my attorney and I understand that, unless I plead `guilty' or `no contest' to this crime, the State must prove beyond a reasonable doubt that I did each of the things charged against me in the charging instrument in order to convict me of this crime.

"My lawyer has explained to me, and I understand, that I have the following rights:

"1) I have a right against self-incrimination, which is my right not to admit that I committed this crime even if I did it, and not to say anything about the crime.

"2) I am presumed to be innocent of this crime, and I have a right to have the charge against me dismissed unless the State of Oregon proved, beyond a reasonable doubt, that I committed the crime.

"3) I have a right to a public trial by jury without delay, in which the jury, not the Judge, will decide whether or not the evidence proves beyond a reasonable doubt that I am guilty of this crime.

"* * * * *

"My lawyer has explained to me, and I understand, that by voluntarily pleading `guilty' or `no contest' to this crime, I will be giving up each of these rights, and I will immediately be convicted of this crime without a trial. By pleading `guilty,' I am admitting that the State's evidence proves beyond a reasonable doubt that I committed this crime. * * *.

"* * * * *

"* * * My lawyer also has explained to me, and I understand, that the sentence I receive for this crime is entirely up to the Court. Therefore, even if the District Attorney has agreed to recommend a certain sentence in return for my plea to this crime, the Court does not have to accept the District Attorney's recommendation, and the Court can impose a different sentence which the Court finds is appropriate[.]"

(Underscoring in original.) According to defendant's presentence investigation report (PSI), "defendant advised that he pleaded guilty at the advice of counsel, and also because he wanted to `get it over with.'"

Defendant's presumptive sentence under the sentencing guidelines grid was 13 to 14 months. At sentencing, the court addressed defendant:

"[B]ased upon the PSI, * * * I think you are appropriate for departure. According to the PSI, you've been resistive to treatment, you've been sanctioned on other occasions, and at this point I don't think it was a spitting incident. Yes, it was a spitting incident which included throwing a chair through a window and breaking it and lots of inappropriate statements and behavior, and when you put all that together and the fact that you've been at MacLaren for a while, I think it's appropriate to depart. I understand that counsel may differ, but it concerns me that they're not making progress. And for that reason I'm going to depart to 26 months, followed by two years post-prison supervision."

None of the factors mentioned by the court had been alleged in the indictment or admitted by defendant when he entered his plea.

As noted, on appeal, defendant argues that the trial court lacked authority to impose a departure sentence based on facts that he did not admit and that the state did not plead in the indictment and prove to a jury beyond a reasonable doubt. Defendant relies on the United States Supreme Court's decision in Blakely, which we discuss below. Because the Court decided Blakely after defendant was sentenced, we first describe the law as it existed when defendant was sentenced and explain its development into its current state.

Had defendant raised at trial the issue that he now advances on appeal, its resolution would have been controlled by our decision in State v. Dilts, 179 Or.App. 238, 39 P.3d 276 (2002) (Dilts I), aff'd, 336 Or. 158, 82 P.3d 593 (2003) (Dilts II), vac'd and rem'd, ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 809 (2004). In Dilts I, the defendant pleaded guilty to third-degree assault. The sentencing court found aggravating factors and imposed an upward departure sentence. The defendant objected, citing Apprendi v. New Jersey, 530 U.S. 466, 490, 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." The defendant in Dilts I asserted that the presumptive guidelines sentence was the "prescribed statutory maximum" for purposes of Apprendi. He argued that, because the aggravating factors resulted in a sentence that exceeded the maximum presumptive sentence, they must have been either admitted as part of his guilty plea or found by a jury beyond a reasonable doubt before they could be the basis for an enhanced sentence. We concluded that the "prescribed statutory maximum" was not the presumptive sentence but was the maximum permissible upward departure, subject to the limits set out in ORS 161.605.² Dilts I, 179 Or.App. at 248-49, 39 P.3d 276. Because the defendant's departure sentence was well within the maximum established by ORS 161.605, we held that it did not violate the Apprendi rule. Id.

After defendant in this case was sentenced, the Oregon Supreme Court affirmed our decision in Dilts I, and the United States Supreme Court granted certiorari. While that case was pending, the Court issued its opinion in Blakely. In Blakely, the Court considered the constitutionality of Washington's sentencing scheme. Washington law prescribed sentences within a standard range but permitted deviation if the sentencing court found "`substantial and compelling reasons justifying an exceptional sentence.'" 542 U.S. at ___, 124 S.Ct. at 2535 (quoting Wash Rev Code Ann § 9.94A.120(2)). An "exceptional sentence" could not exceed limits provided in Washington Revised Code Annotated, section 9A.20.021. Blakely, 542 U.S. at ___, 124 S.Ct. at 2537. The sentencing court in Blakely imposed an exceptional sentence after finding that the defendant had acted with "deliberate cruelty." Id. Before the Supreme Court, the State of Washington's argument was consistent with our reasoning in Dilts I: It argued that the upper limit on exceptional sentences, not the maximum within the "standard range," established the relevant statutory maximum. Id. The Court rejected that argument, stating 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 [or she] may impose without any additional findings."

Id. (citations omitted; emphasis in original). Because Washington's sentencing scheme permitted the enhancement of sentences beyond the statutory maximum based on facts not admitted to by the defendant or found by a jury, the Court held that the procedure violated the defendant's right to a jury trial.³ Id.

The Court thereafter vacated and remanded Dilts for reconsideration in light of Blakely. ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 809 (2004). We recently acknowledged in State v. Sawatzky, 195 Or.App. 159, 165, 96 P.3d 1288 (2004), that, with respect to upward departure sentences, Oregon's sentencing guidelines rules are essentially identical to Washington's "exceptional sentence" law. We concluded that "departure sentences, which require judicial findings of fact and are not, under the current scheme, based on facts found by the jury, do not comport with the Sixth Amendment to the United States Constitution." Id. at 172, 96 P.3d 1288. With that in mind, we turn to the parties' arguments in this case.

As noted, defendant argues that the trial court lacked authority to impose a departure sentence based on facts that he did not admit and that the state did not plead in the indictment or prove to a jury beyond a reasonable doubt. He concedes that he raises that argument for the first time on appeal but asserts that the error is reviewable as one that is apparent on...