State v. Hollingquest

• Decision Date: 23 February 2011
• Docket Number: 001239972; A138972.
• Citation: 250 P.3d 366,241 Or.App. 1
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Dasay LaMonte HOLLINGQUEST, aka Dasay LaMonte Hollinquest, Defendant–Appellant.
• Court: Oregon Court of Appeals

241 Or.App. 1
250 P.3d 366

STATE of Oregon, Plaintiff–Respondent,
v.
Dasay LaMonte HOLLINGQUEST, aka Dasay LaMonte Hollinquest, Defendant–Appellant.

001239972; A138972.

Court of Appeals of Oregon.

Argued and Submitted Dec. 20, 2010.Decided Feb. 23, 2011.

[250 P.3d 367]

Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Dasay LaMonte Hollingquest filed the supplemental brief pro se.Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before BREWER, Chief Judge, and GILLETTE, Senior Judge.BREWER, C.J.

[241 Or.App. 3] Defendant, who was convicted of first-degree manslaughter, ORS 163.118, and felon in possession of a firearm, ORS 166.270, argues that the trial court erred in failing to appropriately resentence him after a previous remand by this court. As explained below, we agree with defendant and remand for resentencing.

Defendant originally was sentenced in 2002. The trial court imposed an upward departure sentence of 240 months' imprisonment on the manslaughter conviction, based on judicial factfinding that defendant was on supervision at the time of the offense and that he had been persistently involved in similar offenses. The court further imposed a 36–month term of post-prison supervision (PPS). The court imposed a shorter, concurrent sentence on the felon in possession conviction. Defendant appealed, challenging his convictions and also arguing that the trial court had committed plain error in imposing a departure sentence based on facts not found by a jury beyond a reasonable doubt, and that it had erred in imposing the 36–month PPS term. We rejected defendant's arguments challenging his convictions without

[250 P.3d 368]

discussion, but agreed with defendant that the 36–month PPS term was erroneous, concluding that, because that error was “an error apparent on the face of the record [that] entitles defendant to resentencing,” we did not need to address defendant's other argument concerning his sentence. State v. Hollinquest, 212 Or.App. 488, 489, 157 P.3d 1238, rev. den., 343 Or. 224, 168 P.3d 1155 (2007). Our dispositional statement said, in part, “sentences vacated; remanded for resentencing; otherwise affirmed.” Id. at 490, 157 P.3d 1238.

On remand, defendant raised the sentencing issue that we had not reached in his initial appeal, arguing that imposition of an upward departure sentence on the manslaughter conviction must be based on facts found by a jury beyond a reasonable doubt. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After lengthy debate, the trial court concluded that our remand merely required it to correct the identified error concerning the PPS term, and that it was free to reimpose the upward departure sentence based on its prior judicial factfinding of sentence [241 Or.App. 4] enhancement facts. The court therefore entered an amended judgment of conviction and sentence that deleted the erroneous PPS term but reimposed the upward departure sentence on the manslaughter conviction based on its earlier findings that defendant was on supervision at the time of the offense and that defendant had been persistently involved in similar offenses.

Defendant appeals, arguing that the trial court erred in imposing an upward departure sentence based on judicial factfinding. See State v. Dilts, 337 Or. 645, 103 P.3d 95 (2004) ( Blakely precludes judicial factfinding in support of upward departure sentences under Oregon's sentencing guidelines). In response, the state argues that ORS 138.222(5)(a) did not require the court, on remand, to consider defendant's Blakely-based arguments, because defendant had not made those arguments at his original sentencing proceeding. As explained below, we disagree.

ORS 138.222(5)(a) provides, in part:

“The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court's factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case.”

(Emphasis added.) The Oregon Supreme Court has discussed the meaning of the emphasized sentences of that statute in State v. Edson, 329 Or. 127, 138–39, 985 P.2d 1253 (1999):

“The third (and fourth) sentences of ORS 138.222(5) were added to the statute by Oregon Laws 1993, chapter 692, section 2. The history of that enactment establishes that the new statutory wording was independent of, and applied to a broader range of circumstances than, the second sentence of the statute. See Tape recording, House Appropriations—A Committee, SB 1043, July 26, 1993, Tape 164B at 384 (testimony of Representative Mannix that amendment was intended to require appellate court that finds error on one [241 Or.App. 5] of many convictions to remand entire case, so that trial court has the ability to reconsider whole sentencing ‘package’).”

In Edson, the trial court had erroneously imposed a restitution obligation despite a finding that the defendant lacked the ability to pay it. On appeal, we vacated the restitution award but otherwise affirmed. State v. Edson, 139 Or.App. 412, 912 P.2d 423 (1996). The Oregon Supreme Court disagreed with this court's disposition, concluding that ORS 138.222(5)—and in particular the wording quoted above—gave this court “no other option” than “to reverse the sentence of the trial court...