State v. Tanner

• Citation: 150 P.3d 31,210 Or. App. 70
• Decision Date: 20 December 2006
• Docket Number: 9902-31447.,A128680.
• Parties: STATE of Oregon, Respondent, v. Willie Laron TANNER, Appellant.
• Court: Court of Appeals of Oregon

Page 31

150 P.3d 31

210 Or. App. 70

STATE of Oregon, Respondent, v. Willie Laron TANNER, Appellant.

9902-31447.

A128680.

Court of Appeals of Oregon. En Banc.

Argued and Submitted April 28, 2006.

Resubmitted En Banc October 19, 2006.

Decided December 20, 2006.

Louis R. Miles, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Doug M. Petrina, 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 BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, ORTEGA, and ROSENBLUM, Judges.

ARMSTRONG, J.

Defendant, who was convicted following a jury trial of various crimes, appeals, challenging the trial court's authority to impose consecutive sentences for several of those convictions. The trial court imposed various presumptive-sentencing-guidelines sentences and ORS 137.700 mandatory minimum sentences, and determined that certain sentences should be served consecutively. Defendant argued to the trial court and reiterates on appeal that, under the reasoning of 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), the court's imposition of consecutive sentences pursuant to ORS 137.123(5) violated his right to a jury trial under the Sixth Amendment to the United States Constitution because (1) in the circumstances presented here, ORS 137.123(4) presumptively required the imposition of concurrent, not consecutive, sentences; and (2) the trial court imposed consecutive sentences based on facts found by the court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. We are thus squarely faced with the same issue that we expressly reserved in State v. Herrera-Lopez, 204 Or.App. 188, 193, 129 P.3d 238, rev. den., 341 Or. 140, 139 P.3d 258 (2006).¹ We conclude that the trial court's imposition of consecutive sentences did not violate the Sixth Amendment. We therefore affirm.

The facts material to our review are undisputed. Defendant was convicted following a jury trial of first-degree robbery with a firearm, ORS 164.415, first-degree rape, ORS 163.375, first-degree unlawful sexual penetration, ORS 163.411, first-degree kidnapping, ORS 163.235, and first-degree burglary, ORS 164.225, all arising out of a continuous and uninterrupted course of conduct directed against the victim, T, on January 31, 1999. In the same jury trial, defendant was also convicted of another count of first-degree robbery with a firearm and second-degree kidnapping, ORS 163.225, which arose out of the same continuous and uninterrupted course of conduct directed against a different victim, S, on January 31, 1999.² Defendant appealed those convictions and, in State v. Tanner, 190 Or.App. 299, 78 P.3d 132 (2003), modified on recons., 192 Or.App. 670, 87 P.3d 688, rev. den., 337 Or. 160, 94 P.3d 876 (2004) (Tanner I), we affirmed defendant's convictions but remanded for resentencing. On remand in Tanner I, and over defendant's objections, the court imposed either presumptive sentences under the sentencing guidelines or Measure 11 mandatory minimum sentences under ORS 137.700 and directed that those sentences be served consecutively to others.

Defendant objected that the imposition of consecutive sentences pursuant to ORS 137.123(5)(a) was unconstitutional under the rationale announced in Blakely and Apprendi:

"I view ORS 137.123(5)(a) * * * as requiring factual findings. The law presumes concurrent sentences in Oregon. And without additional factual findings by a judge, it is the defense's position that [defendant] only could be given concurrent sentences with the primary offense."

The court rejected defendant's contention that the imposition of consecutive sentences pursuant to ORS 137.123(5)(a) required additional findings of fact by the court. Rather, the court concluded that the determination necessary to support the imposition of consecutive sentences was "a legal conclusion." Proceeding from that premise, the court imposed consecutive sentences totaling 616 months' imprisonment.

On appeal, defendant reiterates his contention that the imposition of consecutive sentences pursuant to ORS 137.123(5)(a) was unconstitutional under Apprendi and Blakely. ORS 137.123 provides, in pertinent part:

"(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been previously imposed or is simultaneously imposed upon the same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.

"(2) If a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct, or if the defendant previously was sentenced by any other court within the United States to a sentence which the defendant has not yet completed, the court may impose a sentence concurrent with or consecutive to the other sentence or sentences.

"* * *

"(4) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (5) of this section.

"(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense[.]"

At the outset, we respectfully disagree with the trial court's determination that ORS 137.123(5)(a) calls for "legal conclusions" rather than "factual findings." ORS 137.123(5)(a) requires a court to "find" that the commission of one offense was not "merely incidental" to another but, instead, was "an indication of defendant's willingness to commit more than one criminal offense." A determination as to a defendant's willingness to commit more than one criminal offense is innately factual, requiring an assessment of the defendant's state of mind. Cf. Apprendi, 530 U.S. at 492-93, 120 S.Ct. 2348 (factfinding concerning a defendant's state of mind at the time of the crime "is perhaps as close as one might hope to come to a core criminal offense `element'").³

Thus, we agree with defendant that, under ORS 137.123(5)(a), in order to impose consecutive sentences for crimes arising out of a continuous and uninterrupted course of conduct, a court must make factual findings. Judicial factfinding at sentencing may, in some circumstances, run afoul of the Sixth Amendment, as set forth by the Court in Apprendi and later Blakely. The black-letter rule of law from Apprendi that is at issue here is the following: "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." 530 U.S. at 490, 120 S.Ct. 2348. Defendant maintains that the "prescribed statutory maximum" for a series of crimes that arise from a continuous and uninterrupted course of conduct equals the greatest sentence he could receive for any one of the crimes, because certain other crimes must be sentenced concurrently in the absence of judicial factfinding required by ORS 137.123(5)(a). The state suggests that the rule from Apprendi applies to "the penalty for a crime," 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added), singular, and that the rule has no application to determining the relationship between sentences when a defendant is being sentenced for multiple crimes.

As explained below, in states having statutes similar to ORS 137.123(5), the vast majority of courts that have considered this question in the wake of Apprendi and Blakely have reached the conclusion that judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment. As explained below, we agree with that proposition. Apprendi and Blakely concern what facts must be found by a jury in order to impose a specific sentence for a specific offense. They say nothing about when sentences for separate offenses should begin to run. The Court's decisions in Apprendi and Blakely make clear its concern that sentencing courts should not usurp factfinding functions that traditionally have been left to juries. Defendant offers no support— and we are aware of none—for the proposition that determining when sentences should run on multiple convictions, that is, the relationship between sentences, has ever been a part of a jury's traditional function.

The Oregon Supreme Court recently summarized the pre-Apprendi law concerning when Sixth Amendment jury trial rights attach:

"[Before Apprendi was decided], the Court twice had considered and rejected the argument that a sentencing factor constituted an `element' of the crime, which a jury had to find beyond a reasonable doubt. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (illustrating proposition). The statute at issue in McMillan authorized a trial court to impose a mandatory minimum sentence if it found by a preponderance of the evidence that the defendant `visibly possessed a firearm' while...