State v. Nesbit

• Decision Date: 04 November 2015
• Docket Number: A154660.,120934165
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Kevin Lee NESBIT, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 694
361 P.3d 649

STATE of Oregon, Plaintiff–Respondent,
v.
Kevin Lee NESBIT, Defendant–Appellant.

120934165
A154660.

Court of Appeals of Oregon.

Submitted Feb. 26, 2015.
Decided Nov. 4, 2015.

361 P.3d 650

Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Opinion

FLYNN, J.

274 Or.App. 695

Defendant appeals from a judgment imposing enhanced sentences for two of three counts of aggravated theft in the first degree, ORS 164.057, following his plea of no contest to an indictment charging three counts of aggravated theft in the first degree. The trial court sentenced defendant to probation on Count 1 and then counted the conviction on Count 1 as a previous conviction to support the enhanced sentences on Counts 2 and 3. SeeORS 137.717(1)(a)(A) (2009).¹We conclude that the state failed to meet its burden to prove that the three counts of aggravated theft arose out of separate criminal episodes, and, thus, that the state failed to prove that the conviction on Count 1 was a previous conviction for purposes of his sentences on the other counts. Accordingly, we reverse and remand for resentencing.

The state bears the burden of proving by a preponderance of evidence that defendant's conviction on Count 1 qualifies as a “previous conviction.” SeeORS 137.079(5)(c); ORS 137.717(8).²The parties agree that the conviction on Count 1 could serve as a “previous conviction” for purposes of enhancing defendant's sentence on the other aggravated theft convictions, unless the later convictions arose out of the “same conduct or criminal episode” as Count 1. SeeORS 137.717(4)(a) (2009);³

274 Or.App. 696

State v. Mallory,213 Or.App. 392, 395–96, 162 P.3d 297 (2007), rev. den.,344 Or. 110, 178 P.3d 249 (2008)(explaining what constitutes a previous conviction). The only issue in dispute is whether the trial court correctly determined that defendant's “acceptance of checks during a different time period, is a separate criminal act and a separate episode.”

Whether conduct giving rise to convictions constitutes a single criminal episode is a question of law, although the answer to

361 P.3d 651

that question “may depend on predicate findings of historical fact.” State v. Potter,236 Or.App. 74, 82, 234 P.3d 1073 (2010). Here, the historical facts presented by the record are not in dispute. Defendant was charged with three counts of aggravated theft in the first degree. For each count, the indictment alleged that defendant stole at least $10,000 from 21st Century Pacific Insurance Company (21st Century) during a distinct date range: for Count 1, between June 8, 2010 and September 20, 2010; for Count 2, between October 21, 2010 and January 18, 2011; and for Count 3, between February 4, 2011 and June 10, 2011. Defendant pleaded no contest and stipulated that the state could put on evidence to prove each of the charges beyond a reasonable doubt.

At defendant's sentencing hearing, the state explained, as background for the charges, that defendant filed a false claim for benefits with 21st Century for wage loss caused by an injury and that, as a result of the false claim, defendant received checks between June 8, 2010 and June 10, 2011. The state explained that it elected to charge defendant with separate counts for the thefts based on his depositing of the checks, rather than with the single count of filing a false insurance claim. The state also chose to aggregate the thefts by date ranges during which the total value of stolen property exceeded $10,000, thus producing three separate counts of aggravated theft.⁴Once the court

274 Or.App. 697

pronounced the sentence on Count 1, it applied that “previous conviction” to enhance defendant's sentence for the other convictions because of its determination that the later convictions did not arise out of the same “criminal episode” as the first.

In the context of sentencing for multiple convictions in a single proceeding, we have applied the same meaning of “criminal episode” that we use to determine whether crimes are part of the same criminal episode for purposes of double jeopardy. State v. Witherspoon,250 Or.App. 316, 321–22, 280 P.3d 1004 (2012)(whether a conviction from the same proceeding is a different criminal episode that can be included in the defendant's criminal history score for purposes of sentencing “turns on whether, in accordance with double jeopardy principles, the counts had to be prosecuted together”). We have also pointed to the Supreme Court's emphasis that the phrase “criminal episode” is synonymous with the phrase “same act or transaction,” a phrase that means the acts giving rise to the convictions are “ ‘so closely linked in time, place, and circumstance that a complete account of one...