State v. Sawatzky

• Decision Date: 08 September 2004
• Citation: 195 Or.App. 159,96 P.3d 1288
• Parties: STATE of Oregon, Respondent, v. Sylvia Marie SAWATZKY, Appellant.
• Court: Oregon Court of Appeals

96 P.3d 1288

195 Or.App. 159

STATE of Oregon, Respondent, v. Sylvia Marie SAWATZKY, Appellant.

0003-32189, 0009-37299; A116857 (Control), A117424.

Court of Appeals of Oregon.

Argued and Submitted September 17, 2003.

Decided September 8, 2004.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Defendant appeals, challenging upward departure sentences imposed in two cases that are consolidated for appeal, Case Nos. A116857 and A117424. Defendant's sentences, some of which are concurrent and some of which are consecutive, add up to a total period of incarceration of 88 months. Defendant makes three principal arguments: First, the trial court erred in relying on "abuse of trust" as a sentencing factor to support certain departure sentences in A116857. Second, with respect to both cases, under principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the trial court could not impose upward departure sentences because the enhancement factors on which it relied were not based on the facts to which defendant pleaded guilty. Third, and again with respect to both cases, under the reasoning of State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), and State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982), reliance on certain upward departure factors pursuant to the sentencing guidelines violated Article I, section 11, of the Oregon Constitution. As discussed below, we agree with defendant that the upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely. We therefore affirm defendant's convictions but remand for resentencing in both cases.

The material facts are as follows: In A116857, defendant was charged in a 20-count indictment with nine counts of aggravated first-degree theft, ORS 164.057 (odd-numbered Counts 1 through 17); one count of first-degree theft, ORS 164.055 (Count 19); and ten counts of first-degree forgery, ORS 165.013 (even-numbered Counts 2 through 20). All of those charges against defendant arose out of her embezzlement of more than half a million dollars over several years in the course of her employment as a bookkeeper, causing serious financial hardship to her elderly employers. In A117424, defendant was charged by separate indictment with one count of failure to appear in the first degree, ORS 162.205. Defendant pleaded guilty to all charges and submitted separate plea petitions in the two cases, and the court imposed sentences for the two cases in the same sentencing hearing. As described in detail below, the court ultimately imposed upward departure sentences with respect to Counts 9 through 18 in A116857 and also imposed an upward departure sentence in A117424. See generally OAR 213-008-0002(1)(b) (providing a nonexclusive list of aggravating factors that may serve as bases for departure sentences).

Because the parties disagree over which factors the trial court invoked in imposing the departure sentences in A116857, as well as the extent to which the court identified any single factor as being independently sufficient to support departure, we recount the pertinent circumstances in some detail. In that regard, we note that each of the aggravated first-degree theft counts on which the court departed (Counts 9, 11, 13, 15, and 17) was paired with a corresponding first-degree forgery count (Counts 10, 12, 14, 16, and 18) concerning essentially the same conduct during the same period of time. The parties and the court treated each of those pairs of crimes together, and the court's departure findings pertained to each aggravated theft/forgery pair, rather than to individual counts.

As to the first aggravated theft/forgery pair at issue on appeal (Counts 9 and 10), the sentencing court stated, "I will note an abuse of trust as to each count." The court then moved on to the second aggravated theft/forgery pair (Counts 11 and 12), stating, "Reason for the departure is the abuse of trust." The prosecutor pointed out that the amount involved for Counts 11 and 12 was $103,557, and the court responded, "All right. So as to those two counts, harm greater than typical would be a second reason for the departure. Second and independent reason." (Emphasis added.)

The court then moved on to the third aggravated theft/forgery pair (Counts 13 and 14), stating that it was imposing a departure sentence: "Again, reason is abuse of trust." The prosecutor then noted that the amount involved was $44,847, and the court responded, "All right. Make that a second [g]round." The clerk asked, "So those two are abuse of trust and harm greater—" and the court responded, "Right."

The court then moved on to the fourth pair (Counts 15 and 16), stating that "abuse of trust is one reason to depart upward." The prosecutor then noted that the amount involved was $42,000, and the court responded, "All right. So, again, the second reason will be harm greater than typical."

As to the final aggravated theft/forgery pair (Counts 17 and 18), the court stated as a departure reason "abuse of trust," then asked how much money was involved. The prosecutor responded $34,166, and the sentencing court then added, "Harm greater than typical."

The court then addressed the sentence in A117424. On the sole charge of failure to appear, the court imposed an upward departure sentence based on an aggravating factor of "evident intent to flee prosecution and, therefore, to avoid responsibility."

Finally, the sentencing court added:

"And I'm going to note for the record, globally, additional reasons to depart and impose consecutive sentences in the entire case are that the offense as far as the state knows involved at least 680 transactions. The duration was three to three and a half years. She was on release at the time. She violated conditions of her release in Oregon and the overall of our—and now, I'm talking about both financial and non-financial harm to the victims is substantial and much greater than usual."¹

After sentencing, defendant moved for reconsideration of the sentences, arguing that the court's reliance on an "abuse of trust" factor was erroneous and further arguing that imposition of upward departure sentences based on facts that had not been pleaded and proved at trial violated both the state and the federal constitutions. The sentencing court considered the merits of defendant's arguments but adhered to its original sentencing decision.

Thereafter, the court entered a written "judgment of conviction and sentence" in A116857. Specifically, for Counts 9 and 10, that judgment identified "abuse of trust" as the sole basis for departure; with respect to Counts 11 through 18, the judgment identified "abuse of trust and harm inflicted is greater than usual" as the bases for departure. In A117424, the judgment identified "reasons * * * stated on the record" and "flee[ing] prosecution" as the bases for departure on the failure-to-appear charge.

With the stage so set, we turn to defendant's arguments. As explained below, we conclude that, under Blakely, the court's imposition of upward departure sentences in each of the consolidated cases was erroneous. Accordingly, we remand for resentencing in both cases. ORS 138.222(5).²

At the outset, we explain why we reach defendant's federal constitutional arguments without following our customary practice of addressing nonconstitutional and state constitutional arguments first. In her nonconstitutional and state constitutional assignments of error, defendant challenges the use of several specific departure factors. In response to those constitutional challenges to the use of those departure factors, the state contends that the court's reliance on other upward departure factors not challenged by defendant on appeal are independently sufficient to support the departure sentences imposed. See generally State v. Williams, 131 Or.App. 85, 883 P.2d 918 (1994),

adhered to on recons., 133 Or.App. 191, 891 P.2d 3, rev. den., 321 Or. 512, 900 P.2d 509 (1995) (discussing circumstances in which sentencing court's findings of independent grounds for departure are sufficient to support conclusion that court would have imposed the same departure sentence based on a single factor alone). Thus, to address defendant's nonconstitutional and state constitutional arguments, we would need to carefully analyze each departure factor used in these cases and determine whether the trial court's findings were of sufficient clarity to allow us to determine that the court would have imposed departure sentences based on a single factor rather than on the combination of several factors. Defendant's federal constitutional challenge, on the other hand, is global: Defendant contends that, under Blakely, the upward departure provisions of the Oregon sentencing guidelines, which are based on facts found by a judge rather than facts found by a jury or to which the defendant has pleaded, are unconstitutional. Under these circumstances, we deem it appropriate to first address defendant's federal constitutional facial challenge to the sentencing guidelines.

In Apprendi, the Court stated:

"Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)]: `[I]t is unconstitutional for a legislature to remove from the jury

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