State v. Perez

• Citation: 102 P.3d 705,196 Or. App. 364
• Parties: STATE OF OREGON, Respondent, v. Richard Lawrence PEREZ, Appellant.
• Decision Date: 08 December 2004
• Court: Court of Appeals of Oregon

102 P.3d 705

196 Or. App. 364

STATE OF OREGON, Respondent, v. Richard Lawrence PEREZ, Appellant.

0201-30132; A119741.

Court of Appeals of Oregon.

Argued and Submitted September 21, 2004.

Decided December 8, 2004.

Ernest G. Lannet, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

BREWER, C.J.

Defendant appeals a judgment convicting him of possession and delivery of a controlled substance. ORS 475.992(1)(b); ORS 475.992(4)(b). We write only to address defendant's argument that the trial court erred in imposing departure sentences on those counts; we reject his other assignments of error without discussion. Defendant argues that the departure sentences are unlawful under Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the trial court based the sentences on aggravating factors that the state did not plead in the indictment or prove to a jury beyond a reasonable doubt. Defendant concedes that he raises the issue for the first time on appeal, but he argues that we may review the error as one that is apparent on the face of the record. The state responds that the asserted error is not apparent because the aggravating factors arguably fall within the "prior convictions" exception to the rule in Apprendi and Blakely. We remand for resentencing.

Defendant was indicted for delivery of a controlled substance within 1,000 feet of a school (count one), delivery of a controlled substance for consideration (count two), and possession of a controlled substance (count three). A jury found defendant guilty on count three, but it was unable to reach a verdict on counts one and two.¹ The state agreed to dismiss count one in exchange for defendant's agreement to submit count two to the trial court on stipulated facts. Pursuant to that agreement, defendant filed a petition to waive his right to a jury trial and to try that count to the court on stipulated facts. The court accepted the petition and found defendant guilty.

Based on defendant's criminal history score, the presumptive sentence for count two was 25 to 30 months' imprisonment; the presumptive sentence for count three was probation. At sentencing, the parties referred the court to portions of the report of the presentence investigator, wherein the investigator (1) described defendant's extensive criminal history; (2) opined that, for purposes of the "criminal justice system," defendant was a "psychopath"; and (3) described a New York Times article on which the investigator relied in making her recommendation. Defendant argued that the departure findings that the state proposed were inappropriate because he had not, while on supervision, been provided with substance abuse treatment. The court found that defendant persistently had been involved in similar offenses; that defendant was on supervision at the time of these offenses; and that repeated previous supervision had failed to deter defendant from engaging in further criminal conduct. In making those findings, the court relied, in part, on the presentence investigator's opinion that defendant was, as a "sociological matter," a "psychopath." Based on those aggravating factors, the court imposed a durational departure sentence of 40 months' imprisonment on count two and a dispositional departure sentence of six months' imprisonment on count three. See OAR 213-008-0001 (providing, in part, that "the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds substantial and compelling reasons to impose a departure"). As noted, defendant now challenges the imposition of those departure sentences.

To place the parties' arguments on appeal in context, a brief examination of the relevant legal principles is helpful. In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."² 530 U.S. at 490, 120 S.Ct. 2348. Four years later, in Blakely, the Court further defined the phrase "prescribed statutory maximum [sentence]." It held that

"the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he [or she] may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment,' and the judge exceeds his [or her] proper authority."

542 U.S. at ___, 124 S Ct at 2537 (citations omitted; emphasis in original). In other words, if a sentence is not authorized by the facts found by the jury or admitted by the defendant, the sentence is unlawful. We recently held that upward departure sentences under Oregon's sentencing guidelines are inconsistent with the rule in Blakely. State v. Sawatzky, 195 Or.App. 159, 172, 96 P.3d 1288 (2004); see also State v. Warren, 195 Or.App. 656, 670, 98 P.3d 1129 (2004)

(concluding that a dangerous offender sentence under ORS 161.725(1)(a) is inconsistent with the rule in Blakely).

Defendant argues that his sentences are unlawful because they exceed the maximum sentences authorized by the guilty verdicts. He contends that the sentences imposed must be limited to those authorized based on facts pleaded in the indictment and proved beyond a reasonable doubt to the respective factfinders. Because the state did not plead the aggravating factors in the indictment or prove them to the jury beyond a reasonable doubt, defendant argues, the court could not rely on them to impose departure sentences.³ Defendant concedes that the asserted error is unpreserved, but he argues that we should exercise our discretion to review it as an error apparent on the face of the record.

Among other contentions, the state responds that defendant's argument does not qualify for plain error review because it is not clear that Apprendi and Blakely apply. The state notes that, in Apprendi, the Supreme Court recognized an exception to the general rule that it announced in that case, namely, that "the fact of a prior conviction" need not be proved to a jury beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. In the state's view, it is reasonably disputable that the exception for "the fact of a prior conviction" encompasses related circumstances including those comprising the aggravating factors that the trial court found and upon which it based defendant's sentences in this case.⁴

We have discretion to consider an unpreserved error of law that is "apparent on the face of the record." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). Whether the trial court erred is determined "by reference to the law existing as of the time of the appellate decision." State v. Jury, 185 Or.App. 132, 139, 57 P.3d 970 (2002), rev. den., 335 Or. 504, 72 P.3d 636 (2003). An error is "apparent" if it is obvious and not reasonably in dispute. Brown, 310 Or. at 355, 800 P.2d 259. It appears "on the face of the record" if we "need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable." Id. If we exercise our discretion to review an apparent error, we must articulate our reasons for doing so. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).

We begin with the parties' dispute concerning whether the aggravating factors that the trial court found constitute "fact[s] of prior convictions." We note at the outset that each of the aggravating factors applied here — persistent involvement in similar conduct, being on supervision at the time of the instant offenses, and the failure of prior supervision to deter further criminal conduct — involves defendant's criminal history. Thus, the resolution of the parties' dispute lies in how broadly the exception to the general rule in Apprendi is read.

Defendant urges us to read the exception narrowly. He notes that the Apprendi Court referred to "the fact of a prior conviction," 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added), and argues that the Court's use of the definite article shows that it meant to exclude facts merely related to prior convictions. Defendant asserts that the aggravating factors that the trial court found are all qualitatively different from the bare facts of his previous convictions. He notes, for example, that "persistent involvement" requires an inference that goes beyond the existence of a criminal record. The state responds that it is, at least, reasonably disputable that the "fact of prior convictions" exception to the rule in Apprendi includes the aggravating factors at issue in this case.

To determine whether it is beyond reasonable dispute that the exception is as narrow as defendant asserts, we look to the exception's origins and to the Supreme Court's pronouncements on the subject. The exception was first identified in the Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In that case, the defendant was charged in a federal indictment with "having been found in the United States * * * after being deported," id. at 227, 118 S.Ct. 1219 (ellipsis in original; internal...