State v. Yashin

• Decision Date: 18 May 2005
• Docket Number: A123942.,03C47335.
• Citation: 112 P.3d 331,199 Or. App. 511
• Parties: STATE of Oregon, Respondent, v. Nickolay YASHIN, Appellant.
• Court: Oregon Supreme Court

112 P.3d 331

199 Or. App. 511

STATE of Oregon, Respondent, v. Nickolay YASHIN, Appellant.

03C47335.

A123942.

Court of Appeals of Oregon.

Argued and Submitted February 28, 2005.

May 18, 2005.

Louis R. Miles, Deputy Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Deputy, 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 ARMSTRONG, Presiding Judge, and BREWER, Chief Judge, and DEITS, Judge pro tempore.

BREWER, C.J.

Defendant appeals a judgment convicting him of six counts of first-degree rape, ORS 163.375, and six counts of first-degree sodomy, ORS 163.405. The trial court counted three of the rape convictions as part of defendant's criminal history for purposes of calculating his guidelines sentence on one of the sodomy convictions. Defendant assigns error to the imposition of that sentence, arguing that imposing it required a finding that none of the three rapes was part of the same criminal episode as the sodomy and, under Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the state was required to prove that fact to a jury beyond a reasonable doubt. Defendant concedes that he raises the issue for the first time on appeal but urges us to address it as plain error. We conclude that imposing the challenged sentence was not an error apparent on the face of the record and affirm.

Understanding the pertinent facts of this case requires a brief discussion of Oregon's sentencing guidelines. Under the guidelines, the permissible range of sentences for a felony conviction generally is dictated by the 99-block sentencing guidelines grid. The grid is composed of a vertical axis, the "Crime Seriousness Scale," and a horizontal axis, the "Criminal History Scale." OAR 213-004-0001(1). To determine the permissible sentencing range for a given conviction, a sentencing court locates the appropriate category for the crime on the Crime Seriousness Scale, the appropriate category for the offender on the Criminal History Scale, and the grid block where the two categories intersect. Predictably, the permissible sentencing range increases with every increase on either the Crime Seriousness Scale or the Criminal History Scale. For certain crimes that carry a statutory minimum sentence, the sentencing court is required to impose either that statutory minimum sentence or the one dictated by the grid, whichever is higher. OAR 213-009-0001(1).

The category on the Criminal History Scale into which a given offender will fall depends on the number and type of the offender's prior convictions. OAR 213-004-0006(1). The categories range from "minor misdemeanor or no criminal record" to "multiple (3+) felony person offender." A conviction may be counted in a defendant's criminal history score if the trial court pronounced sentence on it before pronouncing sentence on the conviction at issue. OAR 213-004-0006(2). Thus, if a defendant is convicted of two crimes in one proceeding and a court pronounces sentence on the first conviction seconds before calculating the sentence on the second, then the first conviction may be used to calculate the defendant's criminal history on the second conviction. There is one caveat: Only convictions that arose out of separate "criminal episodes" count as part of the defendant's criminal history for sentencing purposes. State v. Bucholz, 317 Or. 309, 317, 855 P.2d 1100 (1993).

The legal determination that convictions arose out of separate criminal episodes is based on a factual finding — specifically, the finding that the acts giving rise to the convictions were not part of "continuous and uninterrupted conduct that * * * is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a criminal objective." See State v. Knight, 160 Or.App. 395, 403, 981 P.2d 819 (1999) (a finding for Bucholz purposes requires finding described in ORS 131.505(4), which defines "separate criminal episode").

With that sentencing scheme in mind, we turn to the facts of this case. Defendant was charged with, among other things, three counts of rape and one count of sodomy.¹ Each count in the indictment alleged that, sometime between January 1, 1998 and June 30, 2003, defendant knowingly used forcible compulsion to engage in sexual intercourse (rape) or deviant sexual intercourse (sodomy) with his adult daughter. Each of the counts also alleged that defendant threatened the use of a weapon during the commission of those crimes.² Defendant waived his right to a jury trial and was tried by the court, which found defendant guilty on all counts. The court found that the additional circumstance of threatening the use of a weapon during the commission of the offense existed only for Count 1 (rape) and Count 4 (sodomy). Because the statutory minimum sentence was higher than the guidelines sentence for the three rape convictions, the court imposed mandatory minimum sentences of 100 months on each of those convictions pursuant to ORS 137.700(2)(a)(J). The court imposed a guidelines sentence on the sodomy conviction, Count 4. That is the sentence at issue in this appeal.

On Count 4, the court sentenced defendant to 130 months' imprisonment. The court arrived at that number through the following method. First, because the court had found that defendant threatened the use of a weapon in committing the crime alleged in Count 4, the court determined that the crime was ranked at a level 10 (out of 11) on the Crime Seriousness Scale. Second, the court used all three of defendant's rape convictions (on which defendant had already been sentenced) in calculating defendant's criminal history for Count 4. In doing so, the court found that "these are all complete[ly] and totally distinct acts involving, in the six counts, one victim, but at separate times with separate intents, separate criminal consequences." Inclusion of the three rape convictions in defendant's criminal history moved defendant into the highest category on the Criminal History Scale, category A. Accordingly, the court determined that the presumptive sentence in grid block 10A — 121 to 130 months — applied to the sodomy conviction, and the court sentenced defendant to 130 months' imprisonment, to run consecutively to the sentences for rape. In the absence of its finding that the three rapes and the sodomy had each occurred during separate criminal episodes, the maximum sentence that the court could have imposed was 100 months, which is the mandatory minimum prescribed for first-degree sodomy by ORS 137.700(2)(a)(L).

Defendant argues that, because the fact found by the court increased the maximum sentence beyond what the court could have imposed based on the verdict alone, that fact had to be proved to a jury beyond a reasonable doubt.³ As noted, defendant did not make that argument before the trial court but asserts that we may address it as plain error.

We have discretion to consider an unpreserved claim of error if the claimed error is one of law and is apparent on the face of the record. State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). Whether the trial court erred is determined with reference to the law existing at the time of the appellate decision. State v. Jury, 185 Or.App. 132, 139, 57 P.3d 970 (2002), rev. den., 335 Or. 504, 72 P.3d 636 (2003). An error appears on the face of the record if we need not go outside the record or select among competing inferences to identify it. Brown, 310 Or. at 355, 800 P.2d 259. It is apparent if the point is obvious — that is, not reasonably in dispute. Id. If we exercise our discretion to correct plain error, we must articulate our reasons for doing so. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).

The state argues that the asserted error is not "apparent" because there is a significant legal question as to whether the finding at issue falls under the exception in Apprendi for "the fact of a prior conviction." 530 U.S. at 490, 120 S.Ct. 2348. In the alternative, the state contends that, even if the trial court committed plain error, we should decline to exercise our discretion to correct it because the trial court could impose the same total sentence on remand by running more of the sentences consecutively.⁴

In Apprendi, the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. The issue in this case is whether the sentencing court's finding clearly falls within the exception for the fact of a prior conviction.

The prior conviction exception to Apprendi's general rule traces to Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In that case, the defendant was convicted of the offense of being found in the United States after having been deported. Id. at 227, 118 S.Ct. 1219. The offense carried a sentence of up to two years' imprisonment, or 20 years' imprisonment if the deportation had been pursuant to convictions for aggravated felonies. Id. at 226, 118 S.Ct. 1219. The defendant was sentenced to 85 months after admitting that he had prior convictions for aggravated felonies. He argued that his sentence violated his Fifth Amendment right to notice of the charges against him because the indictment charging him had not mentioned his earlier aggravated felony convictions. Id. at 227, 118 S.Ct. 1219. The Court concluded that the fact of the defendant's prior convictions did not need to be alleged in the indictment, reasoning, in part, that recidivism is a "sentencing factor" rather than an "eleme...