State v. Morris

• Decision Date: 18 October 2017
• Docket Number: A150850.
• Citation: 288 Or.App. 364,404 P.3d 951
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Lawrence MORRIS, Defendant-Appellant.
• Court: Oregon Court of Appeals

288 Or.App. 364

404 P.3d 951

STATE of Oregon, Plaintiff-Respondent,

v.Lawrence MORRIS, Defendant-Appellant.

A150850.

Court of Appeals of Oregon.

Submitted January 21, 2014.

October 18, 2017

Peter Gartlan, Chief Defender, and Susan Fair Drake, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and Hadlock, Chief Judge, and Duncan, Judge pro tempore.

DUNCAN, J. pro tempore.

Defendant challenges his conviction for delivery of cocaine "for consideration," contending that the trial court erred by submitting the "for consideration" subcategory fact to the jury during the sentencing phase of the criminal proceeding. Defendant makes two arguments: (1) the trial court lacked authority to submit the subcategory fact to the jury during the sentencing phase, because ORS 136.770, set out below, 288 Or.App. at 368 n. 4, 404 P.3d at 955 n. 4, required the trial court to submit the subcategory fact to the jury during the trial phase of the proceeding, and (2) the submission of the subcategory fact to the jury in the sentencing phase violated defendant's statutory former jeopardy rights under ORS 131.515, set out below, 288 Or. App. at 375, 404 P.3d at 958–59. We affirm.

I. HISTORICAL AND PROCEDURAL FACTS

Based on evidence that defendant sold a police informant cocaine and marijuana for $100 during a controlled drug buy, the state indicted defendant with unlawful delivery of cocaine for consideration, ORS 475.880(2), ORS 475.900(2)(a) (Count 1);¹ unlawful delivery of marijuana for consideration, former ORS 475.860(2)(a) (2011), repealed byOr. Laws 2017, ch. 21, § 126 (Count 2); and unlawful possession of cocaine, ORS 475.884 (Count 3).

The case was tried to a jury. At the outset of voir dire, the trial court informed the venireof the charges, including that the two deliveries were alleged to be "for consideration." During the trial, the police informant testified that he had paid defendant $100 for the cocaine and marijuana. Defendant testified that he had met the informant, but had not sold him drugs.

The verdict form that was initially prepared did not direct the jury to determine whether the deliveries were for consideration. Shortly before the case was submitted to the jury, the prosecutor noticed the omission with respect to the delivery of marijuana for consideration count, and the trial court corrected the verdict form to include the subcategory fact on that count. But the prosecutor did not notice the omission with respect to the delivery of cocaine for consideration count, and the trial court did not correct the verdict form on that count.

The jury returned the verdict form, finding defendant guilty of delivery of cocaine, delivery of marijuana for consideration, and possession of cocaine. Because the state was seeking to impose upward departure sentences—that is, sentences greater than the presumptive sentences under the felony sentencing guidelines—the trial court had scheduled a proceeding for the parties to litigate and the jury to determine the existence of aggravating facts, which are prerequisites for the imposition of departure sentences. The trial court told the jury to return a few days later for that proceeding.

Before the jury returned, the prosecutor realized that the verdict form that the jury had completed did not include the "for consideration" subcategory fact on the delivery of cocaine for consideration count. The fact, if found, would increase the crime seriousness level for the offense from four to six and, consequently, increase defendant's presumptive sentence under the guidelines.² See OAR 213-004-0002 (establishing 11 crime seriousness levels); ORS 475.900(2)(a) (delivery of cocaine for consideration is ranked at level 6); ORS 475.900(3)(a) (absent the existence of any subcategory facts, delivery of cocaine is ranked at level 4). The prosecutor asked the trial court for leave to present the subcategory fact to the jury, along with the aggravating facts for the departure sentences.³

Defendant objected, arguing that (1) the trial court did not have authority to submit the subcategory facts to the jury in the sentencing phase, and (2) delivery of cocaine is a lesser-included offense of delivery of cocaine for consideration and, therefore, the jury's verdict on the former constituted an acquittal on the latter, and precluded the state from proceeding on the latter in the sentencing phase. The trial court allowed the state to submit the subcategory fact to the jury, and the jury returned a special verdict form finding that the delivery of cocaine was for consideration.

Defendant appeals, renewing the arguments he made in the trial court. We discuss those arguments in turn, but first pause to address the state's assertion that defendant's arguments were made too late to be preserved for appeal.

II. DISCUSSION

A. Preservation

The state asserts that "defendant's objection that the trial court erred by failing to submit the sentencing subcategory factor in the trial phase was untimely, because defendant waited until the sentencing phase to object." We reject that argument. At the time the offenses were submitted to the jury during the trial phase, defendant had no reason to object; the jury could and did return a valid verdict of delivery of cocaine, despite the failure to provide for a special verdict on the "for consideration" subcategory fact. It was not incumbent on defendant to request an instruction and special verdict for a greater sentence. The state, which alleged the subcategory fact, bore the burden of ensuring its submission to the jury.

B. Authority to Submit Subcategory Fact

Defendant's first argument on appeal is that the trial court lacked authority to submit the subcategory fact to the jury during the sentencing phase. Defendant contends that ORS 136.770 controls the submission of such facts to juries.

The legislature enacted ORS 136.760 to 136.792 following the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Apprendi, the Court held that a defendant's jury trial right under the Sixth Amendment to the United States Constitution includes the right to a jury trial on any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum. 530 U.S. at 490, 120 S.Ct. 2348. Thereafter, in Blakely, the Court clarified that the prescribed statutory maximum sentence in a sentencing guidelines scheme like Oregon's is the presumptive sentence that may be imposed as a result of the jury's verdict. Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531. Thus, Apprendi and Blakely made clear that, under the Sixth Amendment, certain facts—including some that, in practice, had been historically found by trial courts—had to be found by juries.

After Apprendi and Blakely, the Oregon legislature enacted ORS 136.760 to 136.792 to establish a procedure for submitting an "enhancement fact" to a jury. State v. Upton , 339 Or. 673, 677, 681, 125 P.3d 713 (2005) (discussing Senate Bill 528 (2005), Or. Laws 2005, ch. 463). ORS 136.760 defines an "enhancement fact" as a "fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime."

The statutes governing the submission of enhancement facts establish a bifurcated procedure. Generally, enhancement facts that relate to an offense are to be submitted to the jury during the trial phase of a criminal proceeding, ORS 136.770,⁴ and enhancement facts that relate to the defendant are to be submitted during the sentencing phase, ORS 136.773.⁵ As relevant here, ORS 136.770 provides, "When an enhancement fact relates to an offense, the court shall submit the enhancement fact to the jury during the trial phase of the criminal proceeding," unless the defendant either (1) defers trial of the enhancement fact to the sentencing phase, with leave of the court, on the ground that trying it during the trial phase would unfairly prejudice the jury's verdict on an underlying offense, or (2) waives the right to a jury trial on the fact. If an enhancement fact is tried during the sentencing phase, the jury (or court, if the defendant waives the right to a jury trial on the fact) may consider all of the evidence received during the trial phase. ORS 136.780.

Based on ORS 136.770, defendant argues that the "for consideration" subcategory fact is an "enhancement fact," and because it relates to an offense, it must be submitted to the jury during the trial phase, unless the defendant defers or waives a jury finding on the fact. Defendant further argues that, because he did not defer or waive a jury finding on the "for consideration" subcategory fact, the trial court violated ORS 136.770 by submitting the fact to the jury during the sentencing phase.

In response, the state makes three arguments. First, the state argues that ORS 136.770 does not apply because ORS 132.557 governs the submission of subcategory facts to juries.⁶ That statute, which predates ORS 136.770, provides that, if the state intends to rely on a subcategory fact to enhance a crime for sentencing purposes, the state must plead the subcategory fact in the indictment and prove it to the jury beyond a reasonable doubt. ORS 132.557(1) and (2). It also provides that "the jury shall return a special verdict of 'yes' or 'no' on each subcategory fact submitted." ORS 132.557(2). The state argues that ORS 132.557 is inconsistent with ORS 136.760 to 136.792 and that, because ORS 132.557 is more specific, it controls. See ORS 174.020(2) ("when a general and particular provision are inconsistent," the latter controls); State v. Guzek, 322 Or. 245, 268, 906...