State v. Jacob, 0202-31253.

• Decision Date: 27 September 2006
• Docket Number: A119971.,0202-31253.
• Citation: 145 P.3d 212,208 Or. App. 62
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. Andre Ramon JACOB, Respondent-Cross-Appellant.
• Court: Oregon Court of Appeals

145 P.3d 212

208 Or. App. 62

STATE of Oregon, Appellant-Cross-Respondent, v. Andre Ramon JACOB, Respondent-Cross-Appellant.

0202-31253.

A119971.

Court of Appeals of Oregon,

Argued and Submitted March 30, 2005.

Resubmitted En Banc July 12, 2006.

Decided September 27, 2006.

Rolf C. Moan, Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jamesa J. Drake, Deputy Public Defender, argued the cause for respondent-cross-appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, and ORTEGA, Judges, and BREITHAUPT, Judge pro tempore.

EDMONDS, J.

The state appeals after the trial court refused to impose a 30-year gun minimum sentence pursuant to ORS 161.610(4)(c) (2001), amended by Or. Laws 2005, ch. 407, § 1. For the reasons that follow, we remand for resentencing.

The facts that frame the issue on appeal are as follows. In late 1982, defendant was convicted by a jury of robbery in the first degree. In early 1983, pursuant to the applicable version of ORS 161.610, the trial court held an evidentiary hearing without a jury and found that defendant had used or threatened to use a firearm in the commission of the crime for which he had been convicted.¹ Based on that finding, the trial court imposed a five-year gun minimum sentence, as mandated by ORS 161.610 (1981). However, just months earlier, the Oregon Supreme Court had held unconstitutional the portions of ORS 161.610 (1981) under which defendant was sentenced. State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982). In Wedge, the court held that, under ORS 161.610 (1981), the use or threatened use of a firearm was in fact a "finding that goes to the criminal act for which [the] defendant is punished," 293 Or. at 607, 652 P.2d 773, and, therefore, the finding of that fact by the sentencing court violated the defendant's right to trial by jury under Article I, section 11, of the Oregon Constitution. Id. at 608, 652 P.2d 773. There is no indication in the record before us that defendant raised a similar issue in connection with his 1983 conviction and sentence,² and defendant did not appeal or seek post-conviction relief regarding his conviction or the gun minimum sentence imposed for that conviction.

In 1991, defendant was convicted again of robbery in the first degree with a firearm, as well as attempted assault in the first degree with a firearm. At the time of sentencing on those charges, the trial court imposed a ten-year gun minimum sentence pursuant to the version of ORS 161.610 in effect at that time.³ There is no suggestion in the record before us that defendant raised an issue about the lawfulness of his 1983 gun minimum sentence during the 1991 proceedings.

In 2002, defendant was charged with two counts of robbery in the first degree with a firearm. He was found guilty of those charges in a stipulated facts trial. At sentencing, the state requested that defendant receive a 30-year gun minimum sentence pursuant to ORS 161.610(4)(c) (2001). Defendant objected, arguing that his 1983 gun minimum sentence was unconstitutional under Wedge and could not serve as a predicate offense under the progressive sentencing scheme in ORS 161.610 (2001). The trial court agreed with defendant and sentenced him to a 10-year gun minimum sentence. The state's appeal followed.

At the time that defendant was sentenced in this case in 2002, ORS 161.610 (2001) provided:

"(4) The minimum terms of imprisonment for felonies having as an element the defendant's use or threatened use of a firearm in the commission of the crime shall be as follows:

"(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years * * *.

"(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years * * *

"(c) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years."

On appeal, the state argues:

"[T]he trial court had no authority to entertain defendant's collateral challenge to his previous sentences. Under ORS 138.540(1), direct appellate review and post conviction proceedings generally provide the exclusive means for challenging a criminal sentence's `lawfulness.' ORS 138.540(1) thus precluded the trial court from assessing the constitutionality of defendant's earlier sentences. Nothing in ORS 161.610, or in any other statutory provision, supports a contrary conclusion."

Defendant counters, that

"[t]he gun minimum statute conditions increased punishment on the imposition of previous gun minimum sentences. A defendant is eligible for a 30-year gun minimum sentence if he has previously served a 10-year gun minimum sentence; a defendant is eligible for a 10-year gun minimum sentence if he has previously served a five-year gun minimum sentence. If at any point, a sentencing court errs by unlawfully imposing a gun minimum sentence, then the use of that sentence as a predicate for imposing increased punishment both compounds the error and violates defendant's state constitutional right to a jury trial anew."

In essence, defendant argues that the 1983 conviction and sentence cannot be used to enhance his current sentence, because the 1983 sentence was constitutionally infirm.

The issue before us is whether ORS 161.610 (2001) permits the kind of challenge that defendant makes—i.e., a challenge to the validity of the underlying conviction and sentences that establish the predicate offenses for his enhanced sentence. To resolve that question, we follow the methodology set forth in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-612, 859 P.2d 1143 (1993), in an attempt to discern the legislature's intent. Under that methodology, we first examine the text and the context of ORS 161.610 (2001); if the legislature's intent is not evident at the first level of construction, we turn to the legislative history of the statute and, if necessary, resort to other maxims of construction. Id.

The text of ORS 161.610 (2001), set forth above, does not expressly require the state to prove that the prior convictions and sentences used as predicates for the imposition of an enhanced sentence are constitutionally valid. Indeed, the legislature easily could have inserted the word "lawful" or "valid" before the word "conviction" or the word "imprisonment" in the statute, had it intended that result. Nor does the statute expressly authorize or otherwise provide a mechanism for a defendant to make such a challenge to the validity of those predicate convictions and sentences.

Although the text of ORS 161.610 (2001) is silent on the issue of challenges to the validity of predicate offenses, the broader context of ORS 161.610 (2001)—specifically those statutes that govern challenges to invalid convictions or sentences—precludes the construction of the statute urged by defendant. For example, ORS chapter 138 provides for direct appeal of and for post-conviction relief from unconstitutional sentences. Both of those remedies were available to defendant for the purpose of challenging the procedure by which his 1983 sentence was imposed. Indeed, the legislature declared in ORS 138.540(1) that post-conviction relief "shall be the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it is based." (Emphasis added.) Thus, to construe the legislature's silence in ORS 161.610 (2001) as somehow authorizing a challenge to the constitutionality of his 1983 sentence would be inconsistent with the legislature's expressed intent that, in the absence of direct appeal, post-conviction relief is the exclusive remedy for challenging the validity of a constitutionally infirm sentence.

Furthermore, the broader historical context of ORS 161.610 (2001) provides that, once final judgment in a criminal case is entered, its validity and regularity are presumed. Capos v. Clatsop County, 144 Or. 510, 525, 25 P.2d 903 (1933); see also State v. Young, 122 Or. 257, 263-64, 257 P. 806 (1927) (holding that, unless a determination by a court in a criminal case is directly attacked, it remains the determination of the court, whether decided rightly or wrongly). Again, we decline to interpret the legislature's silence on that issue as a departure from well-established principles of criminal law regarding the finality and conclusiveness of judgments.⁴ Rather, we conclude that, when ORS 161.610 (2001) is read in the context of ORS chapter 138 and the established principle that judgments in criminal cases are presumed valid, it is clear that the legislature did not intend to allow a challenge to predicate convictions in subsequent sentence enhancement proceedings under ORS 161.610 (2001).

Our reasoning is consistent with two recent Oregon Supreme Court cases interpreting different statutory schemes involving enhancement of offenses, State v. Probst, 339 Or. 612, 124 P.3d 1237 (2005), and State v. Sims, 335 Or. 269, 66 P.3d 472 (2003). In Probst, the defendant attacked the constitutional validity of a predicate conviction for misdemeanor driving under the influence of intoxicants (DUII) after being charged with felony DUII. The felony DUII statute, ORS 813.010(5), makes the offense of DUII a felony if the person has been convicted previously of the same crime three times in the preceding 10 years. The defendant in Probst argued that, under the governing statutory scheme, the state had the burden of persuasion to demonstrate that the predicate convictions were constitutionally valid. The defendant relied chiefly on the provisions of ORS 813.328. That statute requires that a defendant give notice of...