State v. Wedge

• Citation: 293 Or. 598,652 P.2d 773
• Parties: STATE of Oregon, Respondent on Review, v. Raymond Delbert WEDGE II, Petitioner on Review. CA A21873; SC 28477.
• Decision Date: 23 November 1982
• Court: Supreme Court of Oregon

Page 773

652 P.2d 773

293 Or. 598

STATE of Oregon, Respondent on Review, v. Raymond Delbert WEDGE II, Petitioner on Review.

CA A21873; SC 28477.

Supreme Court of Oregon.

Argued and Submitted July 14, 1982.

Decided Oct. 5, 1982.

Reconsideration Denied Nov. 23, 1982.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on brief was Gary D. Babcock, Public Defender.

William F. Gary, Sol. Gen., Salem, argued the cause for respondent on review. With him on brief were Dave Frohnmayer, Atty. Gen., and Thomas H. Denney, Asst. Atty. Gen.

CAMPBELL, Justice.

Following defendant's conviction in a jury trial, the trial court imposed a minimum five-year sentence for the use of a firearm following ORS 161.610(4), ¹ even though the jury did not necessarily find that defendant had personally used or threatened to use a firearm. Defendant contends this minimum sentence is unconstitutional as a violation of his right to a jury under the Oregon Constitution. We agree and reverse.

On February 17, 1981 two men disguised with face masks, one armed with a gun and the other with a knife, broke into Dennis McKinley's home and demanded money. The knifeman cut McKinley across the right shoulder. The gunman forced McKinley's wife and child to lie on the floor. McKinley gave them approximately $200, mostly in five dollar bills. The gunman put the money into his pocket. The robbers then demanded more money and marijuana. McKinley went to his bedroom, got his own gun, and shot at the gunman. McKinley saw no blood or other possible evidence of a wound except for a hole in the gunman's jeans. The knifeman then fought with McKinley and subdued him. McKinley escaped out the front door where he met a third masked man who hit him on the head with a gun. McKinley telephoned the police from a neighbor's home at 8:08 p.m. The three robbers left before the police arrived.

The same evening at 8:36 the defendant was admitted to a hospital about ten miles away with a gunshot wound in the lower abdomen. He had a sizable number of five dollar bills with him.

Defendant was charged by indictment with robbery in the first degree (two counts), burglary in the first degree, assault in the second degree (two counts), and theft in the first degree (two counts) and convicted on all counts following a trial by jury.

The circuit court merged all the convictions and sentenced defendant to 20 years' imprisonment for robbery in the first degree. He ordered defendant to serve a minimum of ten years pursuant to ORS 144.110(2). ²

The indictments ³ in the present case were worded in such a way that a jury could find that defendant was the man with the knife rather than one of the gunman, and still find him guilty of all the offenses. Nor did the defendant admit on the record that he used a firearm so the convictions did not necessarily establish defendant's use of a firearm. At the sentence proceeding this situation was recognized by the court, which then found beyond a reasonable doubt, pursuant to ORS 161.610(4), that a firearm was used or threatened to be used by the defendant in the commission of these offenses, and imposed a five-year minimum term of imprisonment. ⁴ Defendant only appeals this five-year minimum term, contending that the finding by the court rather than by a jury of his personal use of a firearm violated his constitutional right to a trial by jury guaranteed by Article I, Section 11 of the Oregon Constitution. ⁵ In State v. Hicks, 38 Or.App. 97, 589 P.2d 1130 (1979), construing a similar statute, former ORS 166.230, the court stated that an enhanced penalty can be given only to a person who has actual physical possession of a gun during the commission of a felony because there is no statutory basis for enhanced penalty based on vicarious liability. We agree with this interpretation. The court would be without authority to sentence defendant if there were no finding he personally used or threatened to use a firearm.

We approve the Court of Appeals explanation of ORS 161.610 in State v. Warner, 52 Or.App. 987, 630 P.2d 385 (1981):

" * * * ORS 161.610, enacted in 1979, requires the trial court to impose a minimum term of imprisonment if the court finds beyond a reasonable doubt that the defendant used or threatened to use a firearm during the commission of a felony. The minimum term which must be imposed increases with each successive felony committed with a firearm. The first conviction carries a minimum term of five years, the second a minimum term of 10 years and the third a minimum term of 30 years. A person sentenced under ORS 161.610 is ineligible for work release or parole until the minimum term is served. Additionally, the trial court may not suspend the execution of the person's sentence. An exception is made where it is the defendant's first offense with a firearm, and the court expressly finds mitigating circumstances justifying a lesser sentence than that required under the statute." (Footnotes omitted). State v. Warner, supra, 52 Or.App. at 989, 630 P.2d 385.

The court then explained the effect:

" * * * ORS 161.610 does not increase the defendant's sentence in any way; it simply provides for a minimum term of imprisonment when a firearm is used, or threatened, in the court of a felony.

"Prior to the enactment of ORS 161.610, Oregon law provided that a person who committed a felony while armed with a firearm could receive an additional sentence of up to 10 years beyond the term imposed for the crime itself. See former ORS 166.230 (1977). In State v. Howe, 26 Or App 743, 554 P2d 605, rev den (1976), this court held that the statute could not be used to enhance a sentence for first degree robbery because it would be punishing the defendant twice for the same behavior. See also, State v. Shipley, 39 Or App 283, 592 P2d 237 (1979).

"In contrast to former ORS 166.120, however, ORS 161.610 does not increase the length of defendant's sentence but, instead, insures that a portion of defendant's sentence, without the possibility of parole, will, in fact, be served. An examination of the legislative history reveals that the legislature intended ORS 161.610 to apply to all felonies involving the use or threatened use of a firearm. The legislative purpose is clearly to provide for mandatory minimum prison term whenever a firearm is used, or its use is threatened, during the commission of a felony." (Footnotes omitted). State v. Warner, supra, 52 Or.App. at 991-992, 630 P.2d 385.

The court stated the purposes as:

" * * * ORS 161.610 expresses a legislative judgment that persons who commit felonies while armed with guns should serve a certain amount of time in jail, period. With the single exception already discussed, the legislature permits no participation by the trial judge or Parole Board in this decision. This is, in fact, a legislative sentence. * * * " State v. Warner, supra, 52 Or.App. at 993, 630 P.2d 385. ⁶

There is no right to a jury for sentencing under the United States Constitution, even in a capital case. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Nor does the Oregon Constitution mandate jury participation in sentencing. State v. Dixon, 238 Or. 121, 124, 393 P.2d 204 (1964). The Kansas Supreme Court, in State v. Mullins, 223 Kan. 798, 800, 577 P.2d 51 (1978), upheld a similar statute explaining:

"While K.S.A.1977 Supp. 21-4118 limits the range of authorized dispositions available to the trial court in some instances, it does not create a new class of crimes, add a new element to the statutory definition of already existing crimes, or provide for an additional sentence. Use of a firearm under the statute is not made an element of the offense charged, and is only pertinent to the authorized disposition the court may consider in the event of a conviction."

Defendant argues, however, that State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), is controlling in the present case. In Quinn this court struck down ORS 163.116 imposing a death sentence for murder as unconstitutional because it violated defendant's right to a trial by jury. The defendant's state of mind was an essential element of homicide, and the statute required the judge, rather than the jury, to determine the greater mental state for which a penalty of death could be imposed. We held in that case that a defendant has a constitutional right to have all elements of the crime (for which a defendant is subject to punishment) decided by a jury. However, in Quinn we recognized that not all enhanced penalty statutes are unconstitutional:

"We have upheld other enhanced penalty statutes even though they required additional post-trial findings by the court as a basis for a greater sentence. In particular, we have upheld the former Habitual Criminal Act and sexually dangerous offender statutes over challenges that the procedures violated the right to trial by jury of the facts upon which enhanced punishment was to be based. The difference between those statutes and ORS 163.116(2)(a), however, is found in the simple principle that the facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.

"Our decision in State v. Hoffman, 236 Or 98, 385 P2d 741 (1963) illustrates the principle. There we considered post-trial habitual criminal proceedings in which the judge was to determine the existence of prior convictions and, if found, to enhance the sentence. We held that the procedure did not violate the defendant's right to a jury trial of the facts constituting the crime for which defendant was to be sentenced:

'In our opinion, the words "criminal prosecution," as set forth in Article I, Section 11 of our constitution, refer to establishing before a jury acts declared to be criminal by legislative action. Since proof of prior crimes is not a proper matter in an indictment for a present crime, but only proof that prior punishment has...