State v. Gornick

• Citation: 130 P.3d 780,340 Or. 160
• Decision Date: 09 March 2006
• Docket Number: CC 02C53376; CA A121042; SC S52252.
• Parties: STATE of Oregon, Petitioner on Review, v. Thomas J. GORNICK, Respondent on Review.
• Court: Supreme Court of Oregon

Page 780

130 P.3d 780

340 Or. 160

STATE of Oregon, Petitioner on Review, v. Thomas J. GORNICK, Respondent on Review.

CC 02C53376; CA A121042; SC S52252.

Supreme Court of Oregon.

Argued and Submitted September 9, 2005.

Decided March 9, 2006.

On review from the Court of Appeals.^*

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jamesa J. Drake, Deputy Public Defender, Salem, argued the cause for respondent on review. On the briefs were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender and Monica L. Finch, Deputy Public Defender, Office of Public Defense Services, Salem.

Before CARSON,^** Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ,^*** BALMER, and KISTLER, Justices.

CARSON, J.

The issue in this criminal case is whether the Court of Appeals improperly considered, as plain error, an unpreserved claim of sentencing error under the Sixth Amendment to the United States Constitution and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant was charged with assault in the third degree and pleaded guilty to that charge. During sentencing, which occurred after the United States Supreme Court had issued its decision in Apprendi, the trial court found certain aggravating facts and, based upon those facts, imposed an upward departure sentence. Defendant failed to object to the upward departure or assert that, in accordance with Apprendi, he was entitled to have a jury find the aggravating departure facts beyond a reasonable doubt. On appeal, defendant, for the first time, argued that the trial court had erred in imposing the departure sentence because a jury had not found the departure facts beyond a reasonable doubt. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (clarifying Sixth Amendment principles). Defendant acknowledged that he had made no objection at sentencing but asserted that the Court of Appeals should consider his unpreserved claim because the trial court had committed plain error in imposing the departure sentence. The Court of Appeals concluded that defendant's claim constituted plain error, exercised its discretion to address the claim, and vacated defendant's sentence. State v. Gornick, 196 Or.App. 397, 102 P.3d 734 (2004). We allowed the state's petition for review and now reverse the decision of the Court of Appeals.

The following facts are undisputed. In 2002, defendant was indicted for assault in the third degree, ORS 163.165(1)(f) and (i). After consulting with his lawyer, defendant executed a written plea agreement and pleaded guilty to the assault charge.

Under the Oregon Felony Sentencing Guidelines (sentencing guidelines), defendant's presumptive sentence was 13 to 14 months. At sentencing, the trial court reviewed the presentence investigation report and found three aggravating facts. Based upon those findings, the trial court imposed a departure sentence of 26 months.¹

Defendant did not admit to any of the facts that the trial court relied upon in imposing the departure sentence and, as noted, no jury found those facts beyond a reasonable doubt. Although he was represented by counsel at sentencing, defendant did not object to the trial court's finding of the aggravating facts; neither did he request that a jury find the facts beyond a reasonable doubt.

On appeal, defendant argued that the trial court had exceeded its authority by imposing a departure sentence based upon facts that he had not admitted or that a jury had not found beyond a reasonable doubt. To support that argument, defendant cited the United States Supreme Court's decision in Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, which that Court had decided after defendant had been sentenced, but while his appeal to the Court of Appeals was still pending. Defendant asserted that the Court of Appeals should consider his Sixth Amendment claim, even though he had failed to preserve it by objecting at sentencing, because the trial court's failure to recognize and apply the Blakely rule constituted plain error.

To place defendant's plain error claim in context, we first review the state of the law as it existed when defendant was sentenced and as it exists today. At the time of defendant's sentencing in March 2003, Apprendi was the primary United States Supreme Court case applicable to departure sentences. In Apprendi, which was decided in June 2000, the Supreme Court held that under the Sixth Amendment, any fact, "[o]ther than the fact of a prior conviction, * * * that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

In January 2002, in State v. Dilts, 179 Or.App. 238, 39 P.3d 276 (2002) (Dilts I), the Court of Appeals analyzed Apprendi and applied it to the sentencing guidelines. Dilts I held that the "prescribed statutory maximum" sentence that constitutionally could be applied under Apprendi was the statutory maximum sentence for the particular class of offense, not the maximum presumptive sentence set by the sentencing guidelines. Id. at 251-52, 39 P.3d 276. Thus, according to Dilts I, a trial court did not violate the constitutional principles announced in Apprendi by imposing a departure sentence based upon facts not admitted by the defendant or proved to a jury, so long as that sentence did not exceed the maximum sentence set by statute for the particular class of offense. Id. at 251-52, 39 P.3d 276. Essentially, according to the reasoning set out in Dilts I, any sentence imposed in accordance with the sentencing guidelines satisfied the Sixth Amendment, in as much as no such sentence—even one involving a departure— could result in a sentence in excess of the statutory maximum.

At the time of defendant's sentencing in March 2003, Dilts I was still controlling authority.² As noted, defendant had been charged with assault in the third degree, a Class C felony. ORS 163.165(2). The statutory maximum sentence for a Class C felony was five years, or 60 months. ORS 161.605. Defendant was sentenced to 26 months' incarceration. Therefore, his sentence was within the statutory maximum for Class C felonies, and the trial court imposed a proper sentence under Dilts I.

In June 2004, after the trial court sentenced defendant, the Supreme Court decided Blakely. Among other holdings, Blakely expressly rejected reasoning similar to that set out in Dilts I. In Blakely, the Court clarified the meaning of the phrase "prescribed statutory maximum" from Apprendi:

"[T]he `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 may impose without any additional findings."

542 U.S. at 303-04, 124 S.Ct. 2531 (internal citations omitted; emphasis in original). Thus, in accordance with Blakely, the presumptive sentence under the sentencing guidelines is the "statutory maximum" that constitutionally may be imposed, absent the defendant's admission of aggravating facts or a jury finding of such facts beyond a reasonable doubt.³

With that background in mind, the Court of Appeals considered defendant's argument that the trial court had committed plain error in this case. After explaining the framework for analyzing a claim of plain error, the Court of Appeals analyzed defendant's contention that his sentence was "invalid because the aggravating facts were determined by the court rather than by a jury." Gornick, 196 Or.App. at 406, 102 P.3d 734. The Court of Appeals concluded that, under Blakely, the trial court had committed an error of law by finding the aggravating facts that had increased defendant's sentence beyond the statutory maximum prescribed by the Sixth Amendment. Id. at 409, 102 P.3d 734. The Court of Appeals further held that the error was "apparent on the face of the record" because the record could support only one possible reason for defendant's lack of objection at sentencing, that is, that he did not know that Apprendi soon would require a jury to find the aggravating facts that supported a sentence in excess of 13 to 14 months. Id. at 406-09, 102 P.3d 734. Finally, the Court of Appeals chose to exercise its discretion to correct the sentencing error, and it therefore vacated defendant's sentence. Id. at 410, 102 P.3d 734. As noted, the state petitioned for review, and we allowed the petition.

ORAP 5.45(1) provides, in part:

"No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief * * *, provided that the appellate court may consider an error of law apparent on the face of the record."

As mentioned previously, defendant's claim of error indisputably was not preserved and can be considered only if it qualifies as "an error of law apparent on the face of the record." That exception to the preservation requirement also is known as "plain error." See State v. Terry, 333 Or. 163, 180, 37 P.3d 157 (2001) (so stating).

Determining whether a trial court committed plain error involves a two-step analysis. Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). The first step incorporates the following three requirements: "(1) [the claimed error] is an error of law, (2) the [claimed] error is obvious, not reasonably in dispute, and (3) it appears on the face of the record, i.e., the reviewing court * * * need [not] go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable." State v....