State v. Norris
| Decision Date | 26 June 2003 |
| Citation | 72 P.3d 103,188 Or. App. 318 |
| Parties | STATE of Oregon, Appellant, v. James Martin NORRIS, Respondent. |
| Court | Oregon Court of Appeals |
Daniel J. Casey, Assistant Attorney General, argued the cause for appellant. With him on the opening brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. With him on the reply brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Jesse Wm. Barton, Chief Deputy Defender, argued the cause for respondent. With him on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
Defendant pleaded guilty to one count of felony fourth-degree assault. At sentencing, the trial court calculated defendant's criminal history score at Level C under the sentencing guidelines and sentenced defendant accordingly. In calculating that criminal history score, the court treated two prior convictions as having merged under the "single judicial proceeding" rule and classified a prior resisting arrest conviction as a "non-person" misdemeanor.
The state appeals, arguing that the trial court erred in calculating defendant's criminal history score. According to the state, under amendments to the sentencing guidelines approved in 1993 and 1995, the single judicial proceeding rule no longer applies and prior convictions for resisting arrest have been reclassified as "person" misdemeanors. Defendant argues that the trial court did not err because the 1993 and 1995 amendments to the sentencing guidelines are void. According to defendant, both sets of amendments, although approved by the legislature, failed to comply with the requirement of Article IV, section 22, of the Oregon Constitution that amendments to any "act" be "published at full length." In this case, defendant argues, the legislature unconstitutionally adopted the amendments to the sentencing guidelines by reference to their citations alone. Defendant concedes that, if the amendments are valid, then the trial court erred in calculating his criminal history score. The state replies that defendant's challenge to the 1993 and 1995 sentencing guidelines amendments is time-barred. In the alternative, the state argues that Article IV, section 22, does not apply because amendments to the sentencing guidelines are not amendments to an "act" within the meaning of the constitution. We conclude that defendant's challenge to the constitutionality of the sentencing guidelines amendments is not time-barred. Nevertheless, we conclude that the state is correct that Article IV, section 22, does not apply and that the trial court erred in calculating defendant's criminal history score. We therefore vacate defendant's sentence and remand for resentencing.
To understand the issues in this appeal, a bit of context may help. In 1985, the legislature created the Oregon Criminal Justice Council and authorized it to "study and make recommendations on the assessment of risk of future criminal conduct by offenders" for use in, among other things, sentencing. Or. Laws 1985, ch. 558, § 4. In 1987, the legislature authorized the council to develop "sentencing guidelines" applicable to persons convicted of felonies and other offenses punishable by imprisonment and recommend the guidelines to a newly created State Sentencing Guidelines Board (board), an executive branch administrative agency. Or. Laws 1987, ch. 619, §§ 2, 4.1 The legislation further provided:
Id. at § 4(1). Thereafter, the board is authorized to adopt amendments to the guidelines. Or. Laws 1989, ch. 790, § 94a(1). Those amendments, however, "shall not become effective unless approved by the Legislative Assembly by statute." Id.
The Criminal Justice Council developed sentencing guidelines and recommended them to the board, and, in December 1988, the board adopted them. Former OAR 253-02-001 to XXX-XX-XXX. In brief, the guidelines employ a grid system to determine a presumptive sentence. The vertical axis of the grid refers to the seriousness of the current crime. The horizontal axis refers to a criminal history score from A ("multiple (3+) felony person offender") to I ("minor misdemeanor or no criminal record"). The intersection of the two axes determines the presumptive sentence. The sentencing court is then permitted to depart upward or downward depending on the existence of aggravating or mitigating factors.
Calculating a criminal history score requires, among other things, classifying prior convictions as "person" offenses or "non-person" offenses. The original sentencing guidelines approved by the board in 1988 included an exclusive list of offenses that could be regarded as "person" misdemeanors:
"`Person Class A misdemeanors' are ORS 163.208 Assault Officer; ORS 163.195 Recklessly Endanger Another; ORS 163.425 Sexual Abuse II; ORS 163.545 Child Neglect; ORS 163.575 Endanger Welfare of Minor; ORS 163.200 Criminal Mistreatment II; ORS 163.160 Assault IV;ORS 166.155 Intimidation II; ORS 163.605 Criminal Defamation; ORS 163.190 Menacing; ORS 488.164 Hit and Run Boat; and all attempted Class C person felonies."
Former OAR 253-03-001(14). The list did not include the crime of resisting arrest, ORS 162.315.
The original sentencing guidelines also included a special provision for classifying multiple sentences imposed in a single judicial proceeding:
Former OAR 253-04-006(3). That became known as the "single judicial proceeding" rule.
In 1989, the board submitted the guidelines to the legislature, and the legislature approved them:
"The Sixty-fifth Legislative Assembly approves the sentencing guidelines as developed by the State Sentencing Guidelines Board under chapter 619, Oregon Laws 1987[.]"
Or. Laws 1989, ch. 790, § 87. Although it approved the guidelines, the legislature also directed the board to adopt several amendments. In particular, as pertinent to this case, the legislature required the board to alter several words in the rule regarding calculating an offender's criminal history score:
Id. at § 98 (). The 1989 legislature did not order any changes to the wording of subsection (3), concerning the "single judicial proceedings" rule.
Since 1989, the board has adopted additional amendments to the sentencing guidelines and has submitted the amendments to the legislature for approval. Two such amendments are pertinent to this case. First, in 1992, the board adopted amendments to the guidelines that, among other things, entirely deleted the "single judicial proceeding" rule that had been expressed in former OAR 253-04-006(3). The board submitted those amendments to the legislature in 1993, and the legislature approved them, declaring, in part, that "[t]he Sixty-seventh Legislative Assembly approves the amendments to OAR * * * XXX-XX-XXX[.]" Or. Laws 1993, ch. 692, § 1(1). The bill in which the 1993 legislature approved those amendments to the sentencing guidelines did not set out the full text of the rule that was amended.
Second, in 1994, the board adopted amendments that, among other things, added a crime—resisting arrest—to the list of those that may be classified as "person" misdemeanors under former OAR 253-03-001(14).2 In 1995, the board submitted those amendments to the legislature, which approved them, declaring, in part, that "[t]he Sixty-eighth Legislative Assembly approves the amendments to OAR 253-03-001[.]" Or. Laws 1995, ch. 520, § 1.
The facts relevant to this appeal are few and undisputed. Defendant was charged by a three-count indictment with two counts of felony fourth-degree assault and one count of harassment based on conduct that occurred on October 28, 2000. Defendant agreed to plead guilty to one of the assault counts, and the state agreed to dismiss the other two counts. The trial court accepted the plea agreement, took the guilty plea as to the one assault count, and dismissed the other two counts.
At sentencing, the state submitted a Criminal History Worksheet that stated that, on February...
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