State v. Sierra

• Decision Date: 04 May 2016
• Docket Number: A153534.,05C40355
• Citation: 374 P.3d 952,278 Or.App. 96
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joaquin SIERRA, Defendant–Appellant.
• Court: Oregon Court of Appeals

278 Or.App. 96

374 P.3d 952

STATE of Oregon, Plaintiff–Respondent

v.Joaquin SIERRA, Defendant–Appellant.

05C40355

A153534.

Court of Appeals of Oregon.

Submitted April 28, 2015.

Decided May 4, 2016.

Peter Gartlan, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before LAGESEN, Presiding Judge, and FLYNN, Judge, and HASELTON, Senior Judge.

LAGESEN

, P.J.

As a result of an incident involving defendant's use of a crossbow to threaten people at a convenience store—the details of which have been recounted elsewhere¹ —a jury convicted defendant of nine offenses (one count of first-degree kidnapping, two counts of second-degree kidnapping, one count of fourth-degree assault; and five counts of unlawful use of a weapon (UUW)). The trial court sentenced defendant to a total of 250 months' incarceration. The Supreme Court later concluded that the evidence was not sufficient to support defendant's two second-degree kidnapping convictions, reversed those convictions, and remanded the case for resentencing on the seven remaining convictions. On remand, the trial court relied on State v. Partain, 349 Or. 10, 20–21, 239 P.3d 232 (2010)

—which altered the longstanding Oregon common-law rule that a criminal defendant who succeeds on appeal cannot be given a longer sentence on retrial or remand—to impose a longer total sentence: 276 months' incarceration.² It did so, in part, by imposing longer sentences on three of the UUW convictions, and by ordering that those sentences run consecutively—even though defendant had already completed the previously imposed sentences for the UUW convictions. Aggrieved by the trial court's imposition of an additional 26 months' incarceration, defendant has appealed.

As framed by the parties' arguments, this appeal raises four primary questions regarding the trial court's authority to impose a longer sentence on remand, as well as ancillary questions as to whether those issues are properly subject to review in this appeal. Specifically, in view of the parties' arguments, the questions before us are as follows: (1) If preservation principles do not bar review, do due process and the Ex Post Facto Clause of Article I, section 21, of the Oregon Constitution

, bar the application of Partain to this case and require that defendant be resentenced under the more forgiving standard established by State v. Turner, 247 Or. 301, 313, 429 P.2d 565 (1967) ? (2) If preservation principles do not bar review, do federal constitutional due process and double jeopardy principles prohibit the resentencing of defendant on any conviction for which defendant had completed the previously imposed sentence? (3) If Partain applies to defendant's case, did the trial court comply with the requirements of Partain when, on resentencing, it imposed a total incarcerative sentence that was 26 months longer than the sentence previously imposed? (4) If ORS 138.222

or the law-of-the-case doctrine do not bar review, does State v. Smith, 323 Or. 450, 918 P.2d 824 (1996), prohibit the modification of defendant's sentences on the UUW convictions for which defendant had completed the previously imposed sentences?

For the reasons explained below, we answer those questions as follows: (1) and (2) defendant's constitutional claims are not preserved and do not warrant plain error review; (3) the trial court satisfied the requirements under Partain ; and (4) defendant's Smith claim is reviewable on appeal, and, on the merits, Smith did not bar the trial court from modifying defendant's UUW sentences on remand because the trial court had statutory authority to do so under ORS 138.222(5)(b)

. We, therefore, affirm.

CONSTITUTIONAL CLAIMS

Broadly stated, defendant raises two distinct constitutional challenges to his sentence. First, he contends that due process and the Ex Post Facto Clause of Article I, section 21

, prohibit the application of Partain to his case. He argues that those constitutional provisions instead, require the application of Turner, the case overruled by Partain, which would prohibit the trial court from sentencing defendant to a longer sentence than that previously imposed. Second, he contends that the Fifth Amendment's Double Jeopardy Clause, as applicable to Oregon via the Fourteenth Amendment, prohibited the trial court from imposing longer sentences on the UUW convictions after defendant had completed the previously imposed sentences. In support of that argument, he relies primarily on United States v. Arrellano–Rios, 799 F.2d 520 (9th Cir.1986)

.

Defendant did not make those arguments to the trial court.³ As a result, they are not preserved. Although defendant asks that we engage in plain error review, the claimed errors are not ones that are “plain,” that is, “obvious, not reasonably in dispute.” Ailes v. Portland Meadows Inc., 312 Or. 376, 381–82, 823 P.2d 956 (1991)

. Instead, they are ones that would require resolution of state and federal questions of constitutional law not previously resolved by us, the Oregon Supreme Court, or the United States Supreme Court. We note in particular that, as to defendant's double jeopardy argument, it is not obvious that the case on which defendant relies would resolve the issue, even if we were to adopt its reasoning as our own. As the Ninth Circuit itself later concluded, the holding in Arrellano–Rios, a pre-guidelines case, did not apply in a case where a defendant had been sentenced under the federal sentencing guidelines, a scheme that resembles the Oregon sentencing guidelines under which defendant was sentenced. See

United States v. Radmall, 340 F.3d 798, 801 & 801 n. 5 (9th Cir.2003). Therefore, because defendant's constitutional claims are not preserved, and the purported errors are not plain, we reject defendant's constitutional claims without addressing their merits.

APPLICATION OF PARTAIN

We turn to defendant's contention that the trial court's decision to sentence defendant to a harsher sentence on remand did not comply with the requirements of Partain. The argument raises a question of law, and we review for legal error the trial court's determination that Partain 's pre-requisites for the imposition of a harsher sentence were met. State v. Febuary, 274 Or.App. 820, 821, 361 P.3d 661 (2015)

, rev. allowed, 358 Or. 794, 370 P.3d 502 (2016) (reviewing trial court's compliance with Partain requirements for legal error). We conclude that the trial court's ruling comported with the Partain requirements.

Under Partain, a trial court resentencing a defendant following a successful appeal may sentence the defendant to a longer sentence than that previously imposed if the court (1) states its reasons for doing so on the record; (2) the court's reasons are based on “identified facts of which the first sentencing judge was unaware”; and (3) the reasons are “such as to satisfy a reviewing court that the length of the sentence imposed is not a product of vindictiveness toward the offender.” Partain, 349 Or. at 25–26, 239 P.3d 232

. The purpose of those requirements is to guard against the possibility of a trial court penalizing a criminal defendant for taking a successful appeal through the imposition of a longer sentence. Id. at 23–26, 239 P.3d 232.

Here, the record reflects that the trial court complied with the procedural requirements of Partain, and also adequately demonstrates that the trial court's longer sentence was not vindictive. On remand, the trial court empanelled a sentencing jury for the purpose of permitting the state to prove certain sentencing enhancement factors. Through that process, the trial court obtained two types of information not available to the original sentencing court. First, the trial court heard testimony from some of defendant's victims about the long-term effects that defendant's crimes had had on them. Second, the trial court received evidence about defendant's misconduct while incarcerated. The trial court then explained that that new information caused it to view the case “a little bit differently” from the original sentencing judge and to think that the longer sentence was warranted for nonvindictive reasons. In terms of procedure, that is all that Partain requires, and we are persuaded from the trial court's statements on the record that the court did not impose the additional 26 months for a vindictive purpose.

MODIFICATION OF ALREADY–SERVED SENTENCES

Defendant's final argument is that the Supreme Court's decision in Smith precluded the trial court from modifying his sentences on the UUW convictions for which he had completed the previously imposed sentence by the time of resentencing and that the trial court erred by concluding otherwise. The state, in response, observes that defendant's challenged sentences were within the presumptive range and argues that that means that ORS 138.222(2)(a)⁴

bars appellate review of those sentences. The state also asserts that the doctrine of law-of-the-case precludes review of defendant's claim because defendant could have raised that argument in his first appeal. On the merits, the state argues that Smith did not prohibit the trial court from modifying defendant's UUW sentences on remand because ORS 138.222(5)(b) conferred upon the trial court the statutory authority to resentence defendant on those convictions on remand. We decide issues of reviewability for ourselves in the first instance and otherwise review for errors of law the trial court's determination that it had the authority to modify defendant's sentences on the UUW convictions. See

State v. Skelton, 153 Or.App. 580, 593, 957 P.2d 585, rev. den., 327 Or. 448, 964 P.2d 1030 (1998) (reviewing for legal error trial court's determination of the scope of sentencing authority).

The state is wrong that defendant's claim of error...