State v. Banks

¶1dissenting.

¶2Once again, the court is required to confront the provisions of ORAP 5.45(1) and determine whether the error claimed for the first time on appeal is error apparent on the face of the record, and, if it is, whether this court should exercise its discretion to correct it. The majority concludes that the initial criteria under the rule are satisfied and proceeds to exercise its discretion to remand for resentencing. I disagree with the majority’s decision for the reasons that follow.

¶3The majority’s decision perpetuates this court’s jurisprudence in State v. Jury, 185 Or App 132, 57 P3d 970 (2002), in response to the holdings in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and State v. Ice, 343 Or 248, 170 P3d 1049 (2007) cert granted,_US_, 128 S Ct 1657 (2008). In Apprendi, the Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum sentence must be submitted to a jury and proved beyond a reasonable doubt. 530 US at 490. In Blakely, the Court held that, for purposes of the Sixth Amendment, the statutory maximum sentence that a judge may lawfully impose must be based on the facts reflected in the jury verdict or admitted by the defendant. 542 US at 303.

¶4*601In Ice (unlike in this case), the defendant objected at the time of sentencing to the imposition of consecutive sentences based on the court’s factual findings. The trial court overruled the defendant’s objection and imposed consecutive sentences based on its own findings under ORS 137.123(5). Our Supreme Court ruled that the imposition of consecutive sentences under ORS 137.123(5) implicated the principles expressed in Apprendiand Blakely, because the statute required specific factual findings to be made as to whether the offenses arose out of the same continuous and uninterrupted course of conduct; otherwise, the defendant’s sentences were required to be imposed concurrently rather than consecutively. In the court’s view, the consecutive sentences violated the defendant’s Sixth Amendment rights because the necessary findings were made by the trial court rather than by a jury.

¶5Here, defendant was sentenced in January 2004, after Apprendiwas decided, but before Blakelyand Ice. Defendant did not object at the time of sentencing to his consecutive sentences on the ground that he was entitled to have a jury determine the factors required for the imposition of consecutive sentences. Were it not for our decision in Jury, defendant’s arguments would fail under ORAP 5.45(1) because, as we held in State v. Fuerte-Coria, 196 Or App 170, 173, 100 P3d 773 (2004), rev den, 338 Or 16 (2005), an unpreserved Sixth Amendment challenge to the imposition of consecutive sentences was not “obvious” error at the time that defendant was sentenced. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (error apparent on the face of the record must be “obvious and not reasonably in dispute”). Any error in imposing consecutive sentences based on judicial factfinding became “obvious” only after Ice was decided in 2007.

¶6In Jury, however, we addressed whether “error apparent on the face of the record” should be determined by reference to the law as of the time of the appeal or the law as of the time of trial. We noted that the question had never been explicitly addressed by Oregon appellate courts; we further observed that determining plain error based on the law as of the time of the appeal could operate to subvert principles of preservation of error and comity with trial courts. *602185 Or App at 138. Morever, we explained that such an approach could lead to incongruous results in which a trial court could be reversed for “plain error” when its ruling comported with or was even compelled by the law as it existed at the time that the court ruled. Id. at 136-37. Nevertheless, we concluded that, by applying the two-step process for plain error review, we could “ensure that review of plain error will be the exception, and not the rule” and that the principles of preservation would be bypassed “only in extraordinary circumstances.” Id. at 138-39. The majority’s decision in this case departs from that pledge and brings new and inconsistent meaning to our exercise of plain error review.

¶7A comparison between the record in this case and the record in Juryillustrates why this case does not present the “extraordinary circumstances” that constitute “the exception to the rule” with regard to the exercise of our discretion under ORAP 5.45(1). On the record before us in Jury, it was apparent that an obvious injustice had occurred. The defendant appealed from controlled substance-related convictions. During the defendant’s trial in 1994, the trial court admitted evidence that the police had obtained through the use of a body wire that they had placed on an informant. Under the case law as it existed at the time of trial, the police were not required to obtain a court order authorizing them to use a body wire. In his opening brief on appeal, the defendant argued for the first time that our case law to that effect was wrongly decided and that a court order was in fact required by the statute. We held the defendant’s appeal in abeyance pending a decision by the Supreme Court in other cases involving the same issue.

¶8In 2000, the Supreme Court held, as the defendant in Jurycontended, that ORS 133.724 required the police to obtain a court order before using body wires to intercept communications. State v. Fleetwood, 331 Or 511, 515, 16 P3d 503 (2000); State v. Cleveland, 331 Or 531, 534, 16 P3d 514 (2000). After those cases were decided, the state filed its brief in Jury, arguing that the defendant had failed to preserve the error at trial and that the error was not error apparent on the face of the record. After determining that the error was now apparent on the face of the record in light of the Supreme Court’s rulings in the other cases, we turned to whether we *603should exercise our discretion to remedy the error. Relying on a nonexclusive list of criteria in Ailesthat guided our discretion, 312 Or at 382 n 6,1 we elected to exercise our discretion to correct the error in Jurybecause of a unique circumstance: Had the objection to the admission of the body wire evidence been raised in the trial court in 1994, it would have been properly rejected under existing case law precedent. Thus, the outcome at trial would not have been altered, even had the issue been preserved. In that light, the ends of justice were served by treating all similarly situated defendants identically, whether or not the objections had been preserved. 185 Or App at 140.

¶9This case presents different circumstances from those that existed in Jury. Here, the record does not demonstrate — and defendant does not explain — how any injustice occurred. In fact, he does not even explain (1) what provision of ORS 137.123 is or is not applicable to the circumstances that led to his convictions; or (2) what facts remain to be decided by a jury. In light of those deficiencies in the record and defendant’s argument on appeal, I would decline to exercise our discretion to correct any error that may have occurred with respect to the imposition of consecutive sentences. The basis for that decision is explained more fully below.

¶10Defendant was charged with first-degree robbery, first-degree burglary, first-degree unlawful use of a weapon, second-degree theft, and menacing; all of the crimes were alleged to have been committed on March 1,2003. In Count 1, defendant was charged with committing robbery by, “in the course of committing theft of property!,] … threaten[ing] the immediate use of physical force on [the victim] and *604[using] a dangerous weapon, to-wit: a knife, with the intent of preventing and overcoming resistance to the taking of the property.” Count 2 of the indictment alleged that defendant committed the crime of burglary by “unlawfully and knowingly entering] and remaining] in a building that was a dwelling … with the intent to commit the crime of theft therein.”

¶11Trial on the charges occurred in November 2003. By that time, Apprendihad been decided. At trial, the state offered evidence that, as the victim was walking from her car across a parking lot towards her apartment, defendant approached her and took her by the arm. She informed defendant that he was not supposed to have any contact with her but, nonetheless, he led her to her apartment and required her to let him inside her residence. Once inside, the victim told defendant to leave, but he refused. The victim attempted to call 9-1-1, but defendant unplugged the phone. The victim tried to flee through the front door, but he blocked her way and made her sit down. Defendant then went into the kitchen and retrieved a knife. He again approached the victim, standing over her with the knife and a pillow, and demanded money. The victim refused his request, but defendant told her that he would use the knife on her if she did not comply. The victim then dumped the contents of her purse onto the coffee table. Defendant instructed her to take the money out of her wallet, which he then stole. Defendant then required the victim to drive him to downtown Portland, where he and the victim parted company.

¶12In response to the state’s evidence, defendant testified that he .had no contact with the victim on March 1, 2003, and that all the events that the victim testified about, including threatening her with a knife and demanding money, did not occur. Thus, the issue before the jury was whether the victim had fabricated the events of March 1, 2003. The jury found defendant guilty of all charges, except the charge of unlawful use of a weapon.

¶13Before sentencing on the convictions, defense counsel told the trial court, “We have the one incident regarding [the victim], we don’t have multiple incidences in time[,] and *605we don’t have multiple victims here.” During its pronouncement of sentence on Count 2, the trial court stated,

“And then on the burglary charge, … because it’s separate conduct that you went back to this location clearly with the intent to steal property or cause harm to [the victim], I’m going to make those 60 months consecutive to the 90 months, and you’ll serve that after you finish the 90 months on the robbery.”

¶14Defense counsel objected, arguing to the trial court that “the burglary and the robbery occurred at the same time, they weren’t separate inciden [ts].” The trial court responded, “I know, but I disagree with that and I’ve said that.” Defense counsel responded, “And I’m simply preserving it for the record, Your Honor.”

¶15On appeal, defendant advances two assignments of error: (1) “The trial court violated its duty to adequately develop a record from which to determine whether new counsel is warranted after appellant requested new counsel [;]” and (2) “The trial court erred in imposing consecutive sentences.” Defendant does not claim on appeal, as he did in the trial court, that the burglary and robbery offenses did not arise from the same continuous and uninterrupted course of conduct; nor does he identify what factual dispute exists in that regard.2 Rather, in his summary of argument, defendant simply asserts that

“[i]n this case, the trial court imposed consecutive sentences rather than the presumptive concurrent sentences by making findings of fact. This is flatly prohibited by Blakely. Accordingly, appellant is entitled to resentencing.”

¶16In the argument portion of his brief, defendant invokes our decision in Juryand argues that, under Blakely, the court erred in imposing consecutive sentences. Though conceding that our decision in Fuerte-Coria controls the issue, he contends that the decision was “wrongly decided and should be overruled.”3 The only discussion he offers as to how Blakely*606applies to the facts of his case, is found in the following conclusory sentences:

“In this case, the trial court imposed consecutive sentences on counts one and two. These two crimes occurred simultaneously against the same victim. Whatever facts found by the court to support the consecutive sentences on counts [sic] could be found only by a jury under Blakely. Absent those findings, the court was required to impose the sentences concurrently. ORS 137.123(4). As such, the trial court erred in imposing consecutive sentences.”

¶17Defendant appears to assume that the trial court found that the two crimes did not arise from a continuous and uninterrupted course for purposes of ORS 137.123(2) — a point that, as the majority concedes, 218 Or App at 595-96, is less than clear. If that is in fact the case, then it is not clear what facts, on this record, are left for the jury to decide for purposes of ORS 137.123(2). Defendant’s sole argument at trial was that none of the contact with the victim actually occurred. Essentially, he offered an “all or nothing” type of defense. The jury necessarily rejected his view of the facts when it convicted him of engaging in the contact that he claimed never occurred.

¶18It is not apparent on this record what, if any, additional facts are left to be found by the jury. The jury decided that the events testified to by the victim actually occurred on March 1, 2003, as she said that they did. That may explain why, on appeal, defendant glosses over the subject of what issues of fact would be left for the jury on remand. Instead, defendant merely asserts that “whatever facts found by the court … could be found only by a jury.” In the absence of any additional disputed facts, the question whether defendant’s convictions arose from the same continuous and uninterrupted course of conduct was essentially one of law for the trial court.

¶19In a related vein, one of the Ailesfactors that we must consider is the competing interests of the parties regarding judicial economy. The majority’s decision requires a new sentencing hearing and the attendant expense and delay to the public that accompanies a remand to the trial court. Defendant, on the other hand, seeks a “second bite at *607the apple” without first explaining what facts he would submit to the jury or how he suffered an injustice as a result of the court’s imposition of consecutive sentences.

¶20That brings us to the Supreme Court’s recent decisions in State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), and State v. Fults, 343 Or 515, 173 P3d 822 (2007). In those cases, the Supreme Court cautioned against a “one-size-fits-all” approach to plain error review. The court also explained that one of the factors to consider in exercising our discretion is whether, in the particular case, there is a “possibility that [the] defendant made a strategic choice not to object to the sentence^]” Fults, 343 Or at 523. The majority concludes, based on the timing of sentencing — six months before Blakely— that it is “highly unlikely” that defendant made a strategic choice not to object to judicial factfinding. In my opinion, the majority takes too narrow a view of the strategic considerations at play in this particular case. Defendant had asked the jury to believe his version of the facts — i.e., that he never had any contact with the victim on March 1,2003 — and the jury flatly rejected his defense. Assuming that defendant believed that there were any additional facts that needed to be found in order to impose consecutive sentences, it is possible that defendant would have preferred to submit those facts to the court. Given defendant’s trial strategy, which asked the jury to choose between two diametrically opposed factual scenarios, I would conclude that the record presents a competing inference that defendant had no interest in making a Sixth Amendment challenge to judicial factfinding for purposes of sentencing. For that reason, among others, I would decline to give defendant the benefit of an objection he did not make and that he had good reason for not making.

¶21Finally, in Ramirez, the court explained, with respect to our conclusion that the state had no valid interest in requiring a defendant to serve an unlawful sentence, that “[a]lthough that rationale has a nice ring to it, it makes little real-world sense in cases like the present one, in which the record all but demands imposition of precisely the sentence that the trial court elected to impose.” 343 Or at 514. Consistent with the court’s focus on what makes “real-world sense” in cases such as this, I would require defendant to at least demonstrate (1) that he actually would have asserted his *608right to a jury trial had he known about it; and (2) that the denial of a jury trial resulted in some substantial injustice to him. Given the jury’s findings in this case and defendant’s failure to explain what additional facts would have been submitted for the jury’s determination, I would decline to exercise our discretion to correct any error in this case regarding the imposition of consecutive sentences.

¶22The answer to curing inconsistencies like the one described above is to decide preservation issues on a case-by-case basis, considering whether the objectives of preservation are satisfied along with the other Ailesfactors, and by exercising our discretion to review plain error only in extraordinary cases where the objectives of preservation are otherwise satisfied. Juryrepresents one end of the continuum and was an appropriate case in which to exercise our discretion. There, the defendant was able to demonstrate an error that truly affected his liberty interest. At the other end of the continuum is what occurred in Ramirez, where, according to the court, the evidence on the sentencing factor was so overwhelming “that it would not advance the ends of justice to remand for an unnecessary hearing.” 343 Or at 514. Here, because of the conclusory nature of defendant’s argument, we are left to speculate whether defendant’s case is more like Ramirezor more like Jury. For the sake of consistency, this court will now be required to afford relief to future appellants on a plain error basis where the arguments are similarly conclusory in content. In doing so, the integrity of the preservation requirement in ORAP 5.45(1) will be significantly undermined. Accordingly, I dissent.