State v. Parkerson

• Decision Date: 11 May 2022
• Docket Number: A166232
• Citation: 319 Or.App. 477,511 P.3d 25
• Parties: STATE of Oregon, Plaintiff-Respondent, v. William Jack PARKERSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

319 Or.App. 477

511 P.3d 25

STATE of Oregon, Plaintiff-Respondent,

v.William Jack PARKERSON, Defendant-Appellant.

A166232

Court of Appeals of Oregon.

Argued and submitted October 27, 2020.

May 11, 2022

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. William Jack Parkerson filed the supplemental briefs pro se.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.^*

EGAN, J.

Defendant appeals a judgment of conviction for first-degree assault after a unanimous jury verdict, for which he received a 30-year indeterminate dangerous offender sentence. ORS 161.725. He raises seven assignments of error as well as a pro se supplemental assignment of error. We reject defendant's pro se supplemental assignment of error without discussion.

In his sixth assignment of error, defendant contends that the trial court erred in imposing a determinate portion of the dangerous offender sentence of 260 months, which is twice the presumptive maximum sentence of 130 months under grid block 10-A of the sentencing guidelines but exceeds the general limitation of 20 years for indeterminate sentences for Class A felonies as set forth in ORS 161.605. Defendant contends that OAR 213-008-0003(2) (guideline provision stating that, "[i]n no case may the sentence exceed the statutory maximum indeterminate sentence described in ORS 161.605") and State v. Worth , 274 Or. App. 1, 34, 360 P.3d 536 (2015), rev. den. , 359 Or. 667, 379 P.3d 528 (2016) (stating, "the determinate portion of a dangerous offender sentence can now exceed the presumptive term to the same extent as an ordinary departure sentence if the trial court exercises its enhancement discretion under the amended ORS 161.737(2)"), limit the maximum determinate portion of the sentence to the 20-year maximum indeterminate sentence for a Class A felony set forth in ORS 161.605. We reject defendant's contention. ORS 161.725(1) provides that the "indeterminate sentence of imprisonment for a dangerous offender is 30 years." OAR 213-008-0003(2) does not apply to dangerous offender sentences, see OAR 213-008-0003(3) (so noting), and Worth involved specific rules concerning the imposition of consecutive sentences that are not in play in this case; its analysis was specific to those rules. Here, the 260-month portion of the 30-year dangerous offender sentence imposed, was within the court's discretion under the applicable statutes. See ORS 161.737(2) (indeterminate 30-year dangerous offender sentence imposed pursuant to ORS 161.725 includes a "required incarceration term" that is "no more than twice the maximum [guidelines] incarceration term").

In his seventh assignment of error, defendant argues that the trial court erred in instructing the jury that it could return a nonunanimous verdict. Defendant is correct that the trial court erred, but because defendant was convicted by a unanimous verdict, the error does not require reversal. State v. Flores Ramos , 367 Or. 292, 294, 478 P.3d 515 (2020) (holding that error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by unanimous guilty verdicts).

In defendant's first through fourth assignments, he challenges the trial court's admission of a presentence investigation report (PSI) and psychological evaluation that had been prepared and used by the state in defendant's sentencing on earlier convictions. He asserts that, by admitting those reports and the corresponding testimony of their authors, the court violated ORS 161.735(4) and also violated defendant's right against self-incrimination under Article I, section 12 of the Oregon Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In his fifth assignment, defendant contends that without the erroneously admitted material the record is insufficient to make the dangerous offender determination.

The state responds that the court did not err, because the admitted information was redacted of defendant's statements, and because no new information that could have been gathered would have substantially changed the conclusions drawn in the admitted evidence. We agree with the state and, accordingly, affirm.

We are bound by the trial court's express and implicit factual findings, so long as evidence in the record supports them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). In the absence of specific factual findings, this court presumes that the trial court made factual findings consistent with its legal conclusions. Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968).

Before trial in this case, defendant was convicted of attempted aggravated murder and first-degree assault with a firearm, for shooting a police officer in the face approximately two weeks after the event giving rise to the assault charge in this case. See State v. Parkerson , 310 Or. App. 271, 273, 484 P.3d 356 (2021), rev. den. , 369 Or. 505, 506 P.3d 420 (2022) (affirming defendant's convictions for attempted aggravated murder with a firearm and first-degree assault with a firearm). The state sought a dangerous offender sentence in that case, and the trial court ordered a psychological evaluation and PSI pursuant to ORS 161.735. Defendant participated in the evaluation, but not the PSI. Ultimately, the court concluded that defendant was a dangerous offender and sentenced him in accordance with ORS 161.737.¹

Approximately four months after his conviction and sentencing for attempted aggravated murder and first-degree assault, defendant was indicted for the assault for which he was convicted in this case. The indictment alleged that defendant "did unlawfully and intentionally cause serious physical injury to [victim] by means of a sharp/bladed instrument, a dangerous weapon."

After defendant's conviction in this case, the state again sought a dangerous offender sentence, and the court ordered another psychological evaluation and PSI. However, defendant declined to participate. Thus, the court used the psychological evaluation and PSI from defendant's sentencing on the earlier convictions, which had been prepared less than one year before.

At the dangerous offender hearing, the court considered a redacted version of the psychological evaluation that had been prepared and submitted in the earlier case, as well as the testimony of Phillips, who had made the evaluation and prepared the report. Defendant objected, arguing that under ORS 161.735(1), the court was required to order a new psychological evaluation and a new PSI.² Defendant also argued that under ORS 161.735(4), the court was prohibited from using a psychological evaluation drawn, in part, from previous interviews with defendant and other self-reported information.³ The state responded that Phillips, the psychologist who had prepared the earlier evaluation, could offer an opinion based on information that was properly admissible, excluding any statements or self-reported information by defendant. The court agreed, reasoning:

"[A]lthough a new psychological evaluation was ordered, the Defendant refused to participate in one. The psychological evaluation that was done before not as to [defendant's] statements but the other 1,800 pages of discovery that [the state] talked about is identical to the information that would essentially be used for the new evaluation, there's no substantive changes. It is the very exact same information that would be used to make the new report, minus [defendant's] statements. The Court does find that because this is a new evaluation and [defendant] chose not to participate, those statements cannot be used and will not be used in this new evaluation and cannot be considered by the Court or in the doctor's opinion should she testify as to one. *** So I will defer further ruling on her testimony *** but at this particular point the Court will admit the psyche eval minus any statements made by [defendant], and an opinion of the doctor only based on if she's able to give one without any consideration to [defendant's] prior statements."

The court also considered the PSI from the earlier proceeding and the testimony of Edson, the psychologist who had prepared it. Defendant objected to the admission of the PSI and Edson's testimony, stating that "the Court shouldn't consider this presentence investigation from the previous case because there was not a new one done and there should have been a new one done in this case as well." The court overruled the objection, stating, "the same reasoning applies" here as to the psychological evaluation. Although defendant objected to the admission of the PSI, he conceded that it had been redacted to remove references to defendant's statements and self-reported information.

Phillips testified that despite defendant's failure to participate in a second psychological evaluation, she could make a diagnosis "solely based upon the records if the records are comprehensive enough." She stated that her initial evaluation of defendant had included his self-report, but she removed that material and based her evaluation solely upon the discovery, the Department of Corrections (DOC) records, the rescoring of the psychological tests absent defendant's self-report, the information about his prior attempted murder and assault conviction, and the information about his conviction in the current case. Based on that material, Phillips testified that it was her opinion that defendant met "the diagnostic criteria for antisocial personality disorder."

Edson testified that he did not prepare a new PSI for this case. However, he testified that he could draft a PSI without defendant's...