State v. Sierra
| Decision Date | 10 August 2017 |
| Docket Number | CC 05C40355,SC S064237 |
| Citation | 361 Or. 723,399 P.3d 987 |
| Parties | STATE of Oregon, Respondent on Review, v. Joaquin SIERRA, Petitioner on Review. |
| Court | Oregon Supreme Court |
David O. Ferry, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.
Timothy A Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices, and Baldwin, Senior Justice pro tempore.**
This court reversed two of defendant's nine convictions and remanded the case for resentencing on the remaining convictions. State v. Sierra , 349 Or. 506, 254 P.3d 149 (2010), modified and adh'd to on recons , 349 Or. 604, 247 P.3d 759 (2011). On remand, a different judge, who did not preside over defendant's original trial, imposed a longer total sentence than had the original trial court. This case requires us to decide two issues: first, whether Oregon common law or the federal Double Jeopardy Clause precludes the second sentencing court from imposing new sentences on defendant's convictions for unlawful use of a weapon (UUW) because defendant already had served the previously imposed sentences; and second, whether the Due Process Clause, as interpreted by the United States Supreme Court in North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and by this court in State v. Partain , 349 Or. 10, 239 P.3d 232 (2010), precludes the imposition of a more severe sentence than originally imposed. The answer to both questions is no. We affirm the decisions of the trial court and the Court of Appeals, State v. Sierra , 278 Or.App. 96, 374 P.3d 952 (2016).
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 state did not allege enhancement factors. The trial court sentenced defendant to a total of 250 months in prison. The court imposed a 110-month sentence on the conviction for first-degree kidnapping, two consecutive 70-month sentences on the convictions for second-degree kidnapping, and concurrent sentences of 14 months or less on the remaining convictions (including all of defendant's UUW convictions). On review, this court concluded that the evidence did not support the convictions for two counts of second-degree kidnapping because the state had failed to prove the act element. Sierra , 349 Or. at 518, 254 P.3d 149. The court reversed defendant's convictions on those counts and remanded the case to the trial court for resentencing. Sierra , 349 Or. at 607, 247 P.3d 759 ().
On remand, before a different judge, the state sought an upward departure sentence on defendant's conviction for first-degree kidnapping, as well as longer sentences than originally imposed on the other convictions. On the kidnapping conviction, the state alleged, and the sentencing jury found, four enhancement factors—the use of a weapon; threat of or actual violence towards a witness; prior sanctions should have deterred defendant's criminal conduct and did not; and incarceration is necessary for public safety. Based on the jury's findings, the state sought, by upward departure, a sentence of 220 months on that count—an increase of 110 months over defendant's original sentence. The state also asked the court to place four of defendant's UUW convictions (counts 5, 7, 10, and 11) into gridblock 6-D and impose the 14-month presumptive sentence on each and to require defendant to serve those four sentences consecutively to each other and to the 220-month sentence imposed on the kidnapping conviction, for a total sentence of 276 months.
Defendant objected under Partain , arguing that the imposition of a longer total sentence would be presumed vindictive because the second sentencing court would not be basing its sentence on information unknown to the first court at the time of the original sentencing. Defendant also contended that the common-law rule of State v. Smith , 323 Or. 450, 918 P.2d 824 (1996), prevented the sentencing court from imposing new sentences on any of the UUW convictions because defendant had fully served the sentences originally imposed on those counts. Finally, defendant argued that revisiting a completely served sentence would deny him due process and the swift and complete administration of justice, under Article I, section 10, of the Oregon Constitution.1
The sentencing court overruled defendant's objections and imposed the sentence requested by the state. The court explained that defendant's sentence complied with the Partain requirements because the court had based the increased sentence on information not available to the first court: the apparent continued impact of the crimes on the victims and defendant's prison disciplinary record. The court also explained that it was imposing an upward durational departure sentence on the first-degree kidnapping conviction based on the enhancement factors found by the jury, and that the sentences requested by the state on the UUW convictions were appropriate under the sentencing guidelines.
Defendant appealed to the Court of Appeals, arguing that (1) the Smith rule and the Double Jeopardy Clause of the federal constitution prevented the sentencing court from applying ORS 138.222(5)(b) and imposing new sentences on any of the UUW convictions; and (2) under Pearce and Partain , the Court of Appeals was required to presume that the judge on remand had acted vindictively and that due process precluded imposition of a more severe sentence. The Court of Appeals rejected defendant's arguments, holding that the Smith rule did not bar the trial court from applying ORS 138.222(5)(b) and modifying defendant's UUW sentences on remand and that the trial court had satisfied the Pearce / Partain requirements. Sierra , 278 Or.App. at 100-105, 374 P.3d 952. The court also held that defendant's double jeopardy argument was not preserved and did not warrant plain error review. Id . at 98, 374 P.3d 952.2
Defendant petitioned for review in this court, renewing the arguments presented before the Court of Appeals. We allowed defendant's petition.
We turn, first, to defendant's common-law argument, because our ordinary practice is to analyze state law claims before reaching a party's federal constitutional claims. Sterling v. Cupp , 290 Or. 611, 614, 625 P.2d 123 (1981). Defendant contends that the common-law Smith rule, which prohibits a sentencing court from modifying a sentence that has been served, precluded the trial court from imposing a new sentence on defendant's UUW convictions. The state responds that the legislature partially overruled Smith when it enacted what is now codified as ORS 138.222(5)(b). That statute provides that, when an appellate court reverses the judgment of conviction on any count in a multi-count case in which at least one count is a felony, "the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts. " ORS 138.222(5)(b) (emphasis added). According to the state, in the limited circumstance in which a court reverses one or more convictions and affirms the other convictions, and the court does not otherwise rule that any of the sentences were imposed in error, ORS 138.222(5)(b) has supplanted Smith to require that the court remand the case for resentencing on all remaining counts.
In Smith , the defendant was convicted of numerous felony and misdemeanor offenses and received a sentence of consecutive and concurrent sentences totaling 120 months. 323 Or. at 452, 918 P.2d 824. After the Court of Appeals affirmed the defendant's convictions but reversed the sentences on some convictions, State v. Smith , 116 Or.App. 558, 563, 842 P.2d 805 (1992), adh'd to on recons , 120 Or.App. 438, 852 P.2d 934 (1993), the defendant was resentenced to 102 months in prison. Smith , 323 Or. at 452, 918 P.2d 824. The defendant then appealed from the amended judgment, arguing that the sentencing court had erred when it imposed new consecutive sentences on some of his misdemeanor convictions because he already had served the original sentences on those convictions at the time of the resentencing. Id . at 452-53, 918 P.2d 824. On review, this court recognized the common-law rule that "a sentencing court lacks the authority to modify a valid sentence once the original sentence has been executed" and determined that the same result follows "when the original sentence not only has been executed, but also has been served." Id . at 453-54, 918 P.2d 824.
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