State v. Lawler

• Citation: 144 Or.App. 456,927 P.2d 99
• Parties: STATE of Oregon, Respondent, v. Brian John LAWLER, Appellant. 9505-33627; CA A90362.
• Decision Date: 13 November 1996
• Court: Court of Appeals of Oregon

Page 99

927 P.2d 99

144 Or.App. 456

STATE of Oregon, Respondent, v. Brian John LAWLER, Appellant.

9505-33627; CA A90362.

Court of Appeals of Oregon.

Argued and Submitted Oct. 3, 1996.

Decided Nov. 13, 1996.

Douglas E. Beloof, Portland, argued the cause and filed the briefs for appellant.

Eleanor E. Wallace, 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, and Timothy A. Sylwester, Assistant Attorney General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant is a minor who appeals from judgments of conviction for assault in the first degree, ORS 163.185, and assault in the third degree, ORS 163.165. Although he had no criminal history, he received a 90-month prison term on the first-degree assault conviction, pursuant to Ballot Measure 11, a voter initiative mandating minimum sentences for serious felonies against persons, including a requirement that 15- to 17-year-olds charged with those crimes be tried as adults. Or Laws 1995, ch 2, § 1(1) and (2). On appeal, he asserts that Measure 11 violates several provisions of the juvenile code and the Oregon Constitution. ¹ We affirm.

Defendant was part of a group that attacked two men in a park near Mount Hood Community College on May 5, 1995. Defendant struck David Clarke in the back of the head with a baseball bat, causing extensive injuries, including a skull fracture and slight brain damage. Evan Gardner, the second victim, was also struck in head while trying to escape. He received three surgical stitches.

Defendant was soon arrested. Although 17 years old at the time, he was not charged in juvenile court, as required by ORS 419C.005. ² Instead, he was among the first minors in the state charged directly in circuit court under Measure 11, ³ which provides, in part:

"Section 1. (1) When a person is convicted of one of the offenses listed in subsection (2) of this section and the offense was committed on or after April 1, 1995, the court shall impose, and the person shall serve, at least the entire term of imprisonment listed in subsection 2. The person is not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody. The person is not eligible for any reduction in the sentence for any reason whatsoever under ORS 421.120, 421.121 or any other statute. The court may impose a greater sentence if otherwise permitted by law, but may not impose a lower sentence than the sentence specified in Section 2. Notwithstanding any other provision of law, when a person charged with any of the offenses listed in subsection 2 of this section is 15, 16 or 17-years of age, at the time the charges are filed, that person shall be tried as an adult.

"(2) The offenses to which subsection (1) of this section applies and the sentences are:

" * * * * *

"(d) Assault in the first degree * * * 90 months

"(e) Assault in the second degree * * * 70 months[.]" (Emphasis supplied).

A grand jury indicted defendant for assault in the first degree on Clarke and assault in the second degree on Gardner. The second degree assault charge was later reduced to assault in the third degree, ORS 163.165, which is not a Measure 11 offense. On that charge, the state filed a delinquency petition in juvenile court, ORS 419C.250 et seq., and defendant was remanded back to circuit court to be tried as an adult, pursuant to ORS 419C.340 et seq.

Before trial, defendant moved to dismiss the indictment on the first degree assault charge, challenging Measure 11 on statutory and constitutional grounds. The trial court denied the motion and found defendant guilty of both counts in a stipulated facts trial. Although defendant has no criminal history, he received a mandatory minimum sentence of 90 months in prison for first degree assault, pursuant to Measure 11. Or Laws 1995, ch 2, § 1(2)(d). On his conviction for third degree assault, he received 14 months, pursuant to the sentencing guidelines.

On appeal, defendant challenges only his conviction for first degree assault, raising the same statutory and constitutional arguments he made at trial. We first address defendant's statutory claims. State v. Rodriguez, 317 Or. 27, 31, 854 P.2d 399 (1993) (cases are to be decided, if possible, on non-constitutional grounds before reaching constitutional issues).

Defendant first argues that the circuit court lacked jurisdiction over the first degree assault charge because defendant was a minor and the state did not follow juvenile code procedures. ORS 419C.005 grants the juvenile court exclusive jurisdiction over cases involving a minor's acts that, if committed by an adult, would constitute a crime. A minor under the juvenile court's jurisdiction generally must be "waived" or "remanded" into adult court pursuant to the procedures in ORS 419C.340 et seq. Measure 11, however, provides, in part:

"Notwithstanding any other provision of law, when a person charged with any of the offenses listed in subsection 2 of this section is 15, 16 or 17-years of age, at the time the charges are filed, that person shall be tried as an adult." (Emphasis supplied).

Defendant contends that Measure 11 did not alter the provisions relating to juvenile jurisdiction and remand in ORS Chapter 419C. ⁴ At most, he argues, it only required trial in adult court, with the juvenile court retaining jurisdiction for all other purposes, including disposition and sentencing. Defendant asserts that Measure 11 does no more than provide juveniles the right to a jury trial when charged with a Measure 11 offense, superseding the Supreme Court's holding in State ex rel. Juv. Dept. v. Reynolds, 317 Or. 560, 575, 857 P.2d 842 (1993) (delinquency proceedings are not criminal prosecutions and thus are not subject to the right to a jury trial). The text of Measure 11, he argues, nowhere explicitly requires that juveniles convicted of the listed crimes be sentenced as adults. As such, defendant contends, the circuit court lacked jurisdiction to try defendant on the first degree assault charge, as well as the authority to impose a mandatory minimum sentence.

Defendant's argument presents an issue of statutory interpretation, which we review as a question of law. In construing a statute, we seek to discern legislative intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The Supreme Court's methodology for construing statutes in PGE applies to laws approved by voters through initiative or referendum. 317 Or. at 612 n. 4, 859 P.2d 1143; State v. Shumway, 291 Or. 153, 162, 630 P.2d 796 (1981); State v. Linn, 131 Or.App. 487, 490, 885 P.2d 721 (1994), rev. den. 320 Or. 508, 888 P.2d 569 (1995). Our task here is to determine what the voters intended by the phrase "tried as an adult."

At the first level of analysis, we examine the initiative's text and context. If voter intent is clear at this level, our inquiry ends. PGE, 317 Or. at 610-11, 859 P.2d 1143. If, and only if, intent remains unclear do we proceed to the next level and examine the initiative's history. Id. at 611-12, 859 P.2d 1143. In examining the text of Measure 11, we apply rules of construction bearing directly on how to read that text. Id. at 611, 859 P.2d 1143. One such rule is that words of common usage should be given their plain, natural and ordinary meaning. Id. Doing so here, we conclude that the phrase "tried as an adult " does not mean filing a delinquency petition in juvenile court and moving for remand to adult court, as defendant contends. Adults accused of crimes are never placed under a juvenile court's jurisdiction, and an adult criminal prosecution is not initiated by filing a delinquency petition. Because all of the offenses listed in Measure 11 are felonies, Or Laws 1995, ch 2, § 1(2), circuit courts have exclusive jurisdiction to try adults charged with those crimes. Or Const, Art VII, § 9. ⁵

We disagree with defendant's assertion that Measure 11 does not affect the remand procedures of ORS 419C.340 et seq. ORS 419C.340 provides that a juvenile court "may waive the youth to the appropriate court handling criminal actions" when certain circumstances are present. Measure 11, however, provides that "[n]otwithstanding any other provision of law," a minor charged with the listed crimes "shall be tried as an adult." The use of mandatory language indicates an intent to eliminate juvenile court discretion whenever a minor is 15 to 17 years old and charged with a Measure 11 offense.

We also reject defendant's contention that Measure 11 does not subject him to the mandatory minimum sentencing scheme in subsection (2). ⁶ Although the text of the initiative does not address this point, we find the context instructive. See PGE, 317 Or. at 610-11, 859 P.2d 1143 (both text and context considered at first level of analysis). Context includes "other provisions of the same statute[.]" Id. at 611, 859 P.2d 1143. First, it is significant that Measure 11's juvenile provision was made part of the same subsection establishing mandatory minimum sentences for adult offenders. Furthermore, the class of juveniles slated for adult trials is defined, in part, by reference to crimes carrying those very sentences. By lumping adults and juveniles together in the same subsection, Measure 11's backers intended to treat them as a single class of offenders. We can conceive of no reason why voters would force minors accused of serious person felonies into adult court but would not subject them to the mandatory adult sentences attached to those crimes. We conclude that, in passing Measure 11, voters intended to remove the defined class of minors from the juvenile court system, place them under the jurisdiction of the circuit court and subject them to the mandatory minimum sentences applicable to adults.

Such an interpretation, defendant...