State v. Speedis

• Decision Date: 30 June 2011
• Docket Number: (CC CF070533; CA A138616; SC S058310).
• Citation: 350 Or. 424,256 P.3d 1061
• Parties: STATE of Oregon, Respondent on Review,v.Royce Francis SPEEDIS, Petitioner on Review.
• Court: Oregon Supreme Court

350 Or. 424

256 P.3d 1061

STATE of Oregon, Respondent on Review,

v.Royce Francis SPEEDIS, Petitioner on Review.

(CC CF070533; CA A138616; SC S058310).

Supreme Court of Oregon.

Argued and Submitted Nov. 8, 2010.Decided June 30, 2011.

On review from the Court of Appeals.^*Meredith Allen, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Jesse Wm. Barton, Salem, filed the brief for amicus curiae Pacific Sentencing Initiative, LLC.Before De MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**KISTLER, J.

Trial courts may impose enhanced sentences in criminal cases when an aggravating factor provides a substantial and compelling reason for doing so. OAR 213–008–0001. The sentencing guidelines list some aggravating factors that trial courts may consider. See OAR 213–008–0002(1). Trial courts, however, also may rely on aggravating factors that are not listed (nonenumerated aggravating factors) to impose an enhanced sentence. See id. Defendant has argued throughout this litigation that, to the extent the sentencing guidelines permit the use of nonenumerated aggravating factors, they either violate the separation of powers provision of the Oregon Constitution or are vague in violation of the Oregon and the United States constitutions. The trial court disagreed and imposed an enhanced sentence based on nonenumerated aggravating factors. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Speedis, 233 Or.App. 297, 225 P.3d 152 (2010). We allowed defendant's petition for review to consider this recurring issue and now affirm the Court of Appeals decision and the trial court's judgment.

As a matter of state law, three related sets of statutes govern sentencing. See State v. Dilts, 336 Or. 158, 161–63, 82 P.3d 593 (2003) ( Dilts I ) (explaining state sentencing statutes).¹ The first statute establishes maximum indeterminate sentences for felonies. See ORS 161.605. That statute provides, for example, that the maximum sentence for a Class B felony is 10 years. Id. Before 1989, if a defendant was convicted of a Class B felony, the trial court was free to set the defendant's sentence anywhere within that 10–year range. The evidence that a trial court could consider in selecting the appropriate sentence within that range was broad, and the trial court had wide latitude to determine the appropriate sentence based on the seriousness of the offense and the character of the offender. See State v. Stewart/Billings, 321 Or. 1, 9, 892 P.2d 1013 (1995) (describing pre–1989 sentencing); State v. Scott, 237 Or. 390, 399–400, 390 P.2d 328 (1964) (identifying the seriousness of the offense and the character of the offender as the relevant criteria at sentencing).

That latitude sometimes led to disparate sentences for similarly situated defendants, and, in 1985, the Oregon legislature created what is now known as the Oregon Criminal Justice Commission to develop recommendations for providing greater uniformity in sentencing. Dilts I, 336 Or. at 161, 82 P.3d 593. In 1989, the commission adopted rules (sentencing guidelines) that set presumptive sentences for crimes based on the general seriousness of the offense and the specific offender's criminal history. Id. at 161–62, 82 P.3d 593.² The presumptive sentence for each crime falls within the range set by the maximum indeterminate sentence for that crime.³ For example, the maximum indeterminate sentence for second-degree assault (one of the crimes for which defendant was convicted) is 10 years. ORS 161.605(2). The sentencing guidelines provide that, for a person with defendant's criminal history, the presumptive sentence for that crime is 37 to 38 months. See OAR 213–004–0001 (App. 1).

The presumptive sentence sets a target sentence within the range that the indeterminate sentencing statutes permit, and trial courts retain “ ‘discretion to deviate [from the presumptive sentence] for substantial and compelling reasons.’ ” Dilts I, 336 Or. at 172, 82 P.3d 593 (emphasis omitted; quoting OAR 213–002–0001(2)). That is, although the guidelines start from the premise that the presumptive sentence ordinarily will be the appropriate sentence, they recognize that the two factors that go into the presumptive sentence—the general seriousness of the offense and the specific offender's criminal history—may not always capture either the seriousness of a particular offense or all the relevant aspects of an offender's character. See Oregon Criminal Justice Council, Oregon Sentencing Guidelines Implementation Manual 123–25 (1989) (so stating). Accordingly, the guidelines list nine mitigating and 12 aggravating factors that will justify imposing either a lesser or a greater sentence than the presumptive sentence. OAR 213–008–0002(1).

Some of those mitigating and aggravating factors go to the seriousness of the offense. For example, if the harm or loss attributable to a particular offense is either significantly less or significantly greater than is typical, the guidelines permit a court to impose either a downward or an upward departure sentence. See OAR 213–008–0002(1)(a)(G) (downward departure); OAR 213–008–0002(1)(b)(J) (upward departure). Other factors go to the character or culpability of the specific offender. For example, if a defendant acted with a diminished mental capacity, a court may impose a lesser sentence. OAR 213–008–0002(1)(a)(C). Conversely, if a defendant has been “[p]ersistent[ly] involv[ed] in similar offenses or repetitive assaults,” a court may impose a greater sentence than the presumptive sentence. OAR 213–008–0002(1)(b)(D). The guidelines recognize that, in that case, a more severe sentence may be necessary both to deter the defendant and to protect society.

Finally, the guidelines provide that the list of specific mitigating and aggravating factors is “nonexclusive.” OAR 213–008–0002(1). That is, the guidelines recognize that case-specific factors may arise in individual cases that bear on either the seriousness of the offense or the character of the offender that the Criminal Justice Commission did not anticipate. The guidelines accordingly permit trial courts to consider whether nonenumerated, case-specific mitigating or aggravating factors exist that provide a substantial and compelling reason for imposing either a downward or an upward departure sentence. See id.

In 2005, the legislature enacted a third set of statutes that establish procedures for determining whether, in a particular case, an aggravating factor exists that will warrant an enhanced sentence. See ORS 136.760 to 136.792. Under that law, the prosecutor must identify any aggravating factor (enumerated or nonenumerated) that provides a basis for seeking an upward departure sentence and give the defendant reasonable written notice of that factor. See ORS 136.765. The defendant may elect to have a jury find whether that factor is present. See ORS 136.770 (governing aggravating factors that “relat[e] to an offense charged in the accusatory instrument”); ORS 136.773 (governing aggravating factors that “relat[e] to the defendant”).⁴ If the trier of fact finds beyond a reasonable doubt that an aggravating factor that the prosecutor has identified exists, then the trial court may enhance a defendant's sentence if it concludes that that aggravating factor provides a substantial and compelling reason for doing so. See State v. Upton, 339 Or. 673, 679, 125 P.3d 713 (2005).

In this case, the jury convicted defendant of three crimes: first-degree burglary, second-degree assault, and third-degree assault. Before the jury returned its verdict, the prosecutor notified defendant that, in the state's view, eight aggravating factors applied in this case. Of those eight aggravating factors, the jury was ultimately asked to determine whether four of them were present: (1) defendant was on supervision when he committed the current crimes; (2) prior criminal justice sanctions had failed to deter defendant from committing crimes; (3) defendant committed this crime while on release status with other criminal charges pending; and (4) defendant had demonstrated a disregard for laws and rules, making successful probation unlikely. Each of those factors is a nonenumerated aggravating factor.

After considering additional evidence at a separate sentencing hearing, the jury found that the state had proved beyond a reasonable doubt each of those four aggravating factors. The trial court then determined that each aggravating factor, standing alone, provided a substantial and compelling reason for imposing enhanced sentences on defendant's convictions for first-degree burglary and second-degree assault. The trial court sentenced defendant to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the second-degree assault conviction. It also sentenced him to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the first-degree burglary conviction and ordered that those sentences would run concurrently.⁵ The court did not impose a sentence on defendant's conviction for third-degree assault but ruled that defendant's sentence for that offense merged into his sentence for second-degree assault. ⁶

Throughout this litigation, defendant has argued that a trial court may not rely on nonenumerated aggravating factors to impose an enhanced sentence. Doing so, he reasons, violates the separation of powers provision of the Oregon Constitution. See Or. Const., Art. III, § 1 (allocating governmental power among the legislative, executive, and judicial departments). Additionally, de...