State v. Miller
| Decision Date | 05 August 1993 |
| Parties | STATE of Oregon, Petitioner on Review, v. Trevor Shane MILLER, Respondent on Review. CC 10-90-09150; CA A68351; SC S39786. |
| Court | Oregon Supreme Court |
Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Charles S. Crookham, Atty. Gen. and Virginia L. Linder, Sol. Gen.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for respondent on review.
In this criminal case, we consider questions related to sentencing guidelines. In a single indictment, crimes were alleged to have occurred on August 14, August 26, and September 2, 1990. The counts alleged that multiple crimes were committed on each of the three separate dates. Defendant pleaded guilty: to raping, repeatedly sodomizing, and sexually abusing a woman in the course of burglary of a residence on August 14; to attempted rape and sexual abuse of another woman in the course of burglary of another residence committed with the intent to commit forcible rape therein on August 26; and to burglary and attempted rape of a third woman at a third residence on September 2, 1990. Sentences of 19 months and 38 months were imposed for two of the August 14 crimes, and a 41-month sentence was imposed for the August 26 burglary. Those three sentence were to run consecutively and thus totaled 98 months. Other sentences were imposed to run concurrently. None of the sentences was imposed as a departure sentence, i.e., all were imposed using presumptive sentences from the sentencing guidelines grid, displayed as the appendix to this opinion.
To determine the presumptive sentence, a judge uses the grid to take into account the two factors of (1) relative severity of various crimes and (2) relative extent of a defendant's criminal history. The more severe the crime, the longer the presumptive sentence; likewise, the more extensive the criminal history, the longer the presumptive sentence. Criminal history includes increases in length of sentences based on whether other crimes that a defendant has committed were or were not crimes against a person. The longest sentences are for the most serious crimes against persons committed by a defendant with a criminal history of three or more felonies against persons, as a review of the grid makes clear.
The 41-month sentence, imposed for the most serious of the August 26 crimes, was possible under the guidelines only if defendant's criminal history scores were increased for sentencing of the August 26 series of acts by reason of the convictions on the August 14 series of acts. Defendant contends that the lengths of the sentences imposed do not comply with the sentencing guidelines in two separate respects and that, therefore, the length of prison term imposed violates the guidelines.
The issues before us are:
(1) whether the six convictions entered in the August 14 series of criminal acts can be counted by the sentencing court, sitting in a single sentencing proceeding, to determine defendant's criminal history score for use in calculating the sentence to be imposed for convictions on the separate August 26 and September 2 series of criminal acts; and
(2) whether the total length of the three consecutive sentences imposed exceeds the maximum length permitted by guidelines rules specifically applicable to consecutive sentences.
The Court of Appeals reversed defendant's sentences on the first issue and remanded the case to the trial court for resentencing. The Court of Appeals relied on its decisions in State v. Bucholz, 113 Or.App. 705, 834 P.2d 456 (1992), and State v. Seals, 113 Or.App. 700, 833 P.2d 1344 (1992), to overturn the trial court's application of convictions from the August 14 series of acts to increase defendant's criminal history scores for the purpose of calculating presumptive sentences for the later series of acts. 1 On the state's petition for review, we reverse the decision of the Court of Appeals.
In State v. Bucholz, 317 Or. 309, 855 P.2d 1100 (1993) (decided today), a case involving two separate indictments for two separate series of criminal acts, this court relied on the text of a guideline rule and reversed the Court of Appeals in relation to the first issue stated above.
The guideline construed in Bucholz and applicable here came about in the following manner. In 1987, the legislature enacted Oregon Laws 1987, chapter 619, which required the State Sentencing Guidelines Board to adopt sentencing guidelines for all offenses punishable by imprisonment in state prisons.
The Criminal Justice Council was required to develop and propose draft guidelines to the Sentencing Guidelines Board. Section 2(3) of chapter 619 provides:
"In developing the sentencing guidelines the council shall take into consideration factors relevant to establishment of appropriate sentences, including severity of the offense, criminal history of the offender, aggravating and mitigating circumstances, performance under probationary supervision, prevention of recidivism, possibility of reformation or deterrence and the effective capacity of state and local correctional facilities and other sentencing sanctions available."
Those guidelines were proposed and have, with some amendments, been adopted by the legislature. See, e.g., Or.Laws 1989, ch. 790, § 98 (). Legislative adoption, not just board promulgation, is presently required by law for any sentencing guideline. Or.Laws 1989, ch. 790, §§ 94 and 94a.
The operation of the guidelines is described in detail in our recent case of State v. Davis, 315 Or. 484, 486-88, 847 P.2d 834 (1993), and we do not repeat it here. Suffice it to say that, absent a departure, a history of previous criminal convictions increases the sentence that a court is required to presume is the correct sentence that the court must impose for a later conviction. The length of sentence depends on whether a given conviction is or is not counted as part of a defendant's criminal history when sentence is being imposed on another conviction. We apply the decision of this court in State v. Bucholz, supra, to determine whether certain of defendant's convictions are to be counted as criminal history in this case.
We recognize that the two separate series of acts in Bucholz were alleged in two separate indictments, not one indictment as in the present case. But, in Bucholz, all convictions from both indictments were sentenced in one session of court and on the same day, just as all convictions from the three series of criminal acts here were sentenced in one session of court. The happenstance of whether charges are made by separate indictments or together in one indictment does not alter the effect or the analysis of the legislatively adopted criminal history rule that we described in Bucholz. We hold that the rule for calculating criminal history, OAR 253-04-006(2), applies equally where acts from unrelated criminal episodes are combined in one proceeding and where sentences for the separate, unrelated acts are separately imposed, albeit in the same session of court and on the same day, regardless of whether the proceeding arises under one indictment or under two or more. The Court of Appeals erred when it reversed the circuit court, on the ground that the latter court had considered the August 14 series of acts in sentencing defendant on the August 26 and September 2 series of acts.
We turn to the second issue--legal propriety of the consecutive sentences totaling 98 months' incarceration in state prison. The legislature has designated the guidelines as the source of authority for maximum consecutive sentences. ORS 137.121 in part provides:
"[T]he maximum consecutive sentences which may be imposed for felonies committed on or after November 1, 1989, whether as terms of imprisonment, probation or both, shall be as provided by rules of the State Sentencing Guidelines Board." (Emphasis added.)
OAR 253-12-020(2)(a) and (b), rules of that board, provide:
The longest single-count sentence imposed by the trial court in this case was 41 months, for burglary of an occupied dwelling with intent to commit forcible rape or sodomy therein. This crime of defendant's ranked highest on the crime seriousness scale. OAR 253-03-001(17) defines the "primary offense" as the offense of conviction with the highest crime seriousness ranking. Under the quoted rule, the maximum incarceration term through use of consecutive sentences would be double, or "200 percent" of the 41-month term, for a total of 82 months, not the consecutive terms totaling 98 months imposed by the trial court.
Defendant contends that the 200 percent rule applies. The state argues that the 200 percent rule does not apply because that rule, properly read, limits only consecutive sentences arising from a single episode of criminal activity, whereas the sentences in this case arise from three separate episodes. There are no words in the rule limiting the applicability of the 200 percent rule, except where it is displaced by imposition of a departure sentence. OAR...
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