State v. Graves

• Decision Date: 15 October 1997
• Docket Number: C-20175
• Citation: 150 Or.App. 437,947 P.2d 209
• Parties: STATE of Oregon, Respondent, v. Bryan Dale GRAVES, Appellant. 95; CA A91461.
• Court: Oregon Court of Appeals

Page 209

947 P.2d 209

150 Or.App. 437

STATE of Oregon, Respondent, v. Bryan Dale GRAVES, Appellant.

95C-20175; CA A91461.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Feb. 27, 1997.

Resubmitted In Banc July 16, 1997.

Decided Oct. 15, 1997.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

RIGGS, Judge.

Defendant appeals from a judgment of conviction and sentence for one count each of attempted murder, first-degree assault and first-degree burglary. He assigns error to the trial court's determination that the sentence on his burglary conviction must run consecutive to his sentence on the attempted murder conviction and to the trial court's decision to count defendant's courts-martial convictions in assessing his criminal history score. We affirm the trial court's rulings and write only to address the concerns raised with the treatment of the military convictions.

Briefly, the state's evidence showed that defendant unlawfully entered his father's home, set up a 12-gauge shotgun as a "trapgun" in his father's bedroom and, when his father came home from work and opened the door to his bedroom, the gun shot him in the abdomen. Defendant's convictions followed a jury trial. At sentencing, defendant objected to the trial court's use of courts-martial convictions, incurred under the Uniform Code of Military Justice for crimes committed while defendant was in the Marine Corps, in assessing his criminal history score. He argued, among other contentions, that because military personnel are not afforded a jury trial in courts-martial, those convictions are invalid under the Oregon Constitution, Article I, section 11, ¹ and therefore cannot be used to assess criminal history. The trial court considered defendant's military convictions, which had resulted from guilty pleas, in setting defendant's criminal history score at E. We review the trial court's determination for errors of law pursuant to ORS 138.222(4)(b); see State v. Stewart/Billings, 321 Or. 1, 7, 892 P.2d 1013 (1995).

At the time of defendant's crimes, OAR 253-04-011(1) provided:

"An out-of-state adult conviction shall be used to classify the offender's criminal history if the elements of the offense would have constituted a felony or Class A misdemeanor under current Oregon law."

The Commentary to the rule states, in part, that "[a]s used in this rule, 'out-of-state convictions' include federal, tribal court, military and foreign convictions, and convictions from other states of the United States." Oregon Sentencing Guidelines Implementation Manual 57 (1989). The rule subsequently has been amended to clarify that convictions from military tribunals are to be captured as "person offenses" if the elements of the offense would have constituted an offense listed at OAR 253-03-001(14) or (15). Or Laws 1995, ch 520, § 1.

Defendant concedes that pursuant to OAR 253-04-011, his military convictions are of the type that should be considered and that when considered they yield a criminal history score of E. The only contention raised on appeal concerning the military convictions is that, because the procedures used in courts-martial are different from those guaranteed a criminal defendant under Article I, section 11, of the Oregon Constitution, those convictions cannot be used to enhance defendant's sentence under the guidelines. We reject the contention.

Under Clark v. Gladden, 247 Or. 629, 636-37, 432 P.2d 182 (1967), ² a defendant may challenge the constitutional validity of an out-of-state conviction that is to be used to enhance a sentence. Against that backdrop, defendant asserts that the constitutional validity of an out-of-state conviction is to be measured by Oregon constitutional standards. In our view, that formulation does not find support in either the Oregon Constitution or the case law. Article I, section 11, provides that "in all criminal prosecutions," the accused has "the right to public trial by an impartial jury." The provision governs prosecutions in Oregon. It does not speak to the validity of convictions based on prosecutions conducted in other jurisdictions. In State v. Davis, 313 Or. 246, 251-54, 834 P.2d 1008 (1992), the Supreme Court considered whether the protections of Article I, section 9, of the Oregon Constitution apply in an Oregon prosecution with regard to evidence that had been obtained out of Oregon by out-of-state law enforcement officials. The court held that, for purposes of Article I, section 9, it mattered not where the evidence was obtained or by what governmental entity:

"[T]he constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution. Where that is true, the Oregon constitutional protections apply." Id. at 254, 834 P.2d 1008.

Thus, a person being prosecuted in Oregon can raise challenges under Article I, section 9, to the use of evidence obtained outside of Oregon. It does not, however, follow that a person can challenge an out-of-state conviction on the ground that the evidence used in the out-of-state trial did not comport with the requirements of Article I, section 9. As the court said in Davis, the prosecution in Oregon is the "constitutionally significant fact" that renders Oregon's constitutional protections applicable. Id. at 254, 834 P.2d 1008. Similarly, here, the protections of Article I, section 11, of the Oregon Constitution are available to a person being prosecuted in Oregon. Those protections do not bear on the validity of defendant's out-of-state convictions; rather, the validity of an out-of-state convictions should be tested under the constitutional requirements of that jurisdiction or of the federal constitution. See, e.g., State v. Herzog, 48 Wash.App. 831, 740 P.2d 380 (1987) (defendant's West Germany convictions by a two-person jury violated Sixth and Fourteenth Amendments to the United States Constitution).

The Supreme Court's opinion in Clark does not suggest otherwise. Clark involved a post-conviction challenge to a sentence as an habitual criminal. The petitioner asserted that the out-of-state convictions on which the sentence had been based were defective under the state and federal constitutions because he had not had the assistance of counsel. The post-conviction court granted the state's demurrer to the petition, and the question on appeal was whether a post-conviction petitioner could challenge the constitutionality of a foreign conviction to be used to enhance sentencing in Oregon. The court said:

"The full-faith-and-credit clause of Article IV, § 1, of the United States Constitution is not offended by a properly limited collateral attack. No state is required to take notice of foreign convictions in sentencing those who violate its own criminal laws. Each state is free to give foreign convictions such force as it deems proper in the administration of local sentencing policy. The courts of each state must determine which convictions meet constitutional standards in carrying out the legislative policy of their own recidivist laws. Thus, while a challenge to a foreign conviction in a local sentencing proceeding may take the form of a collateral attack, there is no constitutional reason for disallowing such an attack.

"An Oregon convict, therefore, may, when charged under ORS 168.055 with being a habitual criminal, allege constitutional defects and thereby call into question one or more of his prior convictions. * * * "If his allegations meet Oregon standards of legal sufficiency, and if his allegations are admitted or proven, the sentencing court will disregard the convictions thereby found to be constitutionally defective. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)." Clark, 247 Or. at 636-37, 432 P.2d 182 (emphasis supplied; citations omitted).

Thus, the court held, a constitutional attack on a foreign conviction was not barred, and the demurrer should not be allowed if a challenge has been adequately pleaded. The court then analyzed whether the petitioner's allegations stated a ground for relief under Oregon's post-conviction statute, i.e., "[i]f his allegations meet Oregon standards of legal sufficiency." Id. Citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Lawson v. Gladden, 245 Or. 492, 422 P.2d 681 (1967), the court said that a denial of counsel at trial or on a guilty plea is a constitutional defect that will render a conviction void. The court determined that the petitioner had adequately alleged a denial of counsel in connection with each of his former convictions. Accordingly, the court held, the post-conviction court had erred in allowing the state's demurrer. Clark, 247 Or. at 640, 432 P.2d 182.

It is presumably the emphasized language from our quotation of Clark on which defendant relies in support of his contention that Oregon courts must use the Oregon Constitution to determine whether an out-of-state judgment is constitutionally valid. In our view, when the court in Clark said "[i]f his allegations meet Oregon standards of legal sufficiency," it was not stating that the defendant must have made a substantively viable claim under the Oregon Constitution, but rather that the pleadings must adequately state a ground for post-conviction relief in Oregon. Id. at 638, 432 P.2d 182. That reading is borne out by the fact that, although the petitioner in Clark raised both state and federal constitutional challenges, the court did not test the allegations in Clark to determine whether the petitioner's former convictions could withstand a challenge under the Oregon Constitution or even cite the Oregon Constitution. All references are to cases discussing the...