State v. Perez

• Decision Date: 30 March 2006
• Docket Number: (CC 0201-30132; CA A119741; SC S52267).
• Citation: 340 Or. 310,131 P.3d 168
• Parties: STATE of Oregon, Petitioner on Review, v. Richard Lawrence PEREZ, Respondent on Review.
• Court: Oregon Supreme Court

131 P.3d 168

340 Or. 310

STATE of Oregon, Petitioner on Review, v. Richard Lawrence PEREZ, Respondent on Review.

(CC 0201-30132; CA A119741; SC S52267).

Supreme Court of Oregon.

Argued and Submitted September 9, 2005.

Decided March 30, 2006.

On review from the Court of Appeals.^*

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for petitioner on review. On the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Metcalf, Assistant Attorney General.

Jamesa J. Drake, Deputy Public Defender, Salem, argued the cause for respondent on review. On the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before CARSON,^** Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ,^*** BALMER, and KISTLER, Justices.

CARSON, J.

The issue in this criminal case is whether the Court of Appeals improperly considered, as plain error, an unpreserved claim of sentencing error under the Sixth Amendment to the United States Constitution and 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). State v. Perez, 196 Or.App. 364, 373, 102 P.3d 705 (2004). For the reasons that follow, we hold that the Court of Appeals should not have considered the claim of error.

The following facts are undisputed. In January 2002, police officers observed defendant jaywalking, and they stopped him to issue a citation for failure to obey a traffic control device, ORS 814.020(1). During that stop, the officers asked defendant if he had any illegal drugs or weapons in his possession and also asked if they could search him. Defendant denied having any drugs or weapons and consented to a search. During that search, the officers found several individually wrapped packets of cocaine and a spring-loaded knife disguised as a cigarette lighter. After the officers read defendant his Miranda rights, defendant admitted that he had been selling the cocaine. Defendant was indicted on the following counts: (1) delivery of a controlled substance within 1,000 feet of a school, former ORS 475.999(1) (2001), renumbered as ORS 475.904(1) (2005); (2) delivery of a controlled substance, former ORS 475.992(1) (2001), renumbered as ORS 475.840(1) (2005); (3) possession of a controlled substance, former ORS 475.992(4) (2001), renumbered as ORS 475.840(3) (2005); and (4) felon in possession of a restricted weapon, ORS 166.270(2).

Defendant was tried before a jury on counts one, two, and three. The jury was unable to reach a verdict on counts one and two, but did find defendant guilty on count three. Defendant waived his jury trial right on count four and was tried to the court. The trial court found defendant guilty on count four.¹ After the trial court declared a mistrial on counts one and two, the state and defendant entered into an agreement. Pursuant to that agreement, the state dismissed count one and, in exchange, defendant waived his jury trial right on count two and submitted count two to the trial court on stipulated facts. The trial court thereafter found defendant guilty on count two.

Under the Oregon Felony Sentencing Guidelines (sentencing guidelines), defendant's presumptive sentence on count two was 25 to 30 months of imprisonment, and his presumptive sentence on count three was probation. At sentencing, the trial court reviewed the presentence investigation report (PSI) and found the following aggravating facts: (1) defendant persistently had been involved in similar offenses; (2) defendant was "on supervision" at the time of the present offenses; and (3) "repeated supervision/incarceration had failed to deter" defendant from engaging in criminal conduct. Based upon those findings, the trial court imposed an upward departure sentence of 40 months of imprisonment on count two and a concurrent departure sentence of six months of imprisonment on count three.²

Defendant did not admit to any of the facts that the trial court relied upon in imposing the departure sentences, and, as noted, a jury did not find those facts beyond a reasonable doubt. On the other hand, and although he was represented by counsel at his sentencing, defendant did not object to the trial court's finding of the aggravating facts; neither did he request that a jury find the facts beyond a reasonable doubt.³

On appeal, relying upon the United States Supreme Court's decision in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, defendant argued that the trial court had exceeded its authority by imposing departure sentences based upon facts that defendant had not admitted or that a jury had not found beyond a reasonable doubt. Defendant further claimed that the aggravating facts that the trial court had relied upon in imposing his departure sentences did not fit within the prior conviction exception to the Sixth Amendment requirements articulated in Apprendi.⁴ Defendant asserted that the Court of Appeals should consider his Sixth Amendment claim, even though he had failed to preserve it by objecting at sentencing, because the trial court's failure to recognize and apply the principles set out in Apprendi constituted plain error.

After explaining the framework for analyzing a claim of plain error, the Court of Appeals considered the scope of the prior conviction exception to the Apprendi rule. Perez, 196 Or.App. at 369, 102 P.3d 705. The Court of Appeals concluded that the prior conviction exception is a narrow exception, limited to the "bare fact" that a defendant had a prior conviction. Id. at 371, 102 P.3d 705. Applying that standard, the Court of Appeals determined that the aggravating facts relied upon by the trial court in imposing defendant's departure sentences were additional findings beyond the "bare fact" of a prior conviction; thus, the Court of Appeals concluded, the trial court had committed an error of law. Id. at 371-73, 102 P.3d 705. The Court of Appeals further concluded that its narrow interpretation of the prior conviction exception was "beyond reasonable dispute[;]" the court therefore held that the trial court's error had been apparent on the face of the record. Id. at 373, 102 P.3d 705. Finally, the Court of Appeals chose to exercise its discretion to correct the sentencing error and vacated defendant's sentences. Id. at 373, 102 P.3d 705. We allowed the state's petition for review.

In Apprendi, the Supreme Court held that the Sixth Amendment to the United States Constitution requires that "any fact[,] [other that the fact of a prior conviction,] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.⁵ In Blakely, the Court clarified the meaning of the phrase "prescribed statutory maximum" from Apprendi:

"[T]he `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 may impose without any additional findings."

Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (internal citations omitted; emphasis in original). "Thus, in accordance with Blakely, the presumptive sentence under the sentencing guidelines is the `statutory maximum' that constitutionally may be imposed, absent the defendant's admission of aggravating facts or a jury finding of such facts beyond a reasonable doubt." State v. Gornick, 340 Or. 160, 165, 130 P.3d 780, 782 (2006). The one exception to the rule set out in Apprendi is that the trial court may take notice of prior convictions and increase a sentence based upon that finding. Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Those are the constitutional rules applicable to sentencing situations like that faced by defendant.

As mentioned previously, defendant's claim of error indisputably was not preserved; it therefore can be considered only if it qualifies as plain error. ORAP 5.45(1) provides, in part:

"No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief * * *, provided that the appellate court may consider an error of law apparent on the face of the record."

"That exception to the preservation requirement also is known as "`plain error.'" Gornick, 340 Or. at 166, 130 P.3d 783 (citing State v. Terry, 333 Or. 163, 180, 37 P.3d 157 (2001)). For a claimed error to qualify as plain error, "(1) it must be `an error of law'; (2) it must be `obvious'; and (3) `it [must] appear[] on the face of the record.'" Gornick, 340 Or. at 167, 130 P.3d 784.⁶ If all those requirements are satisfied, then the appellate court must "decide whether to `exercise its discretion to consider or not to consider the error.'" Id. at 166, 130 P.3d 783 (quoting Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991)). Finally,

"[t]his court employs two different standards of review to ascertain whether the Court of Appeals properly concluded that a trial court committed plain error. First, this court considers whether the Court of Appeals committed an error of law in determining that the three elements under the first step of the plain error analysis had been satisfied. Next, this court inquires whether the Court of Appeals abused its discretion in deciding to consider the error under the second step in the plain error analysis."

Id. at 167, 130 P.3d 783 (internal citations omitted).

We now turn to the question of whether the Court of Appeals committed an error of law in applying the first step of the plain error framework in this case. Here, defendant claims that the trial court...