State v. Decleve

                                       528

   Submitted April 30, 2018; remanded for resentencing, otherwise affirmed
                              September 25, 2019


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   ERIC FRANCISCO DECLEVE,
                        Defendant-Appellant.
                    Lincoln County Circuit Court
                          972222; A163388
                                   

    Defendant appeals from a judgment of conviction for two counts of rape in the
second degree, ORS 163.365, and two counts of delivery of a controlled substance
to a minor, ORS 475.906, challenging the sentence imposed after a guilty plea.
Specifically, defendant contends that the trial court erred when it failed to apply
the “200 percent” rule from OAR 213-012-0020(2)(b) after it applied the “shift- to-I” rule from OAR 213-012-0020(2)(a)(B). Although defendant did not preserve
that argument, he contends that the trial court plainly erred and that the Court
of Appeals should exercise its discretion to correct that error. Held: The trial
court plainly erred. The Court of Appeals has repeatedly held that, if a trial court
applies the “shift-to-I” rule, it must also apply the “200 percent rule.”
    Remanded for resentencing; otherwise affirmed.



    Thomas O. Branford, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
    POWERS, J.
    Remanded for resentencing; otherwise affirmed.
Cite as 

 (2019)                            529

        POWERS, J.
          In this criminal case, we address whether a trial
court commits plain error when it sentences a defendant
using the “shift to I” rule required by OAR 213-012-0020
(2)(a)(B), but neglects to apply the “200 percent rule” in OAR
213-012-0020(2)(b). Defendant asserts that the trial court
committed plain error and that we should exercise our discretion to correct the error as we have done in prior similar
cases. The state argues that we should decline plain-error
review, because the record is not clear that the court should
have used the shift-to-I rule in the first place and, had
defendant raised the 200-percent rule at sentencing, the
parties would have had an opportunity to develop the record
further to determine whether those rules applied under the
circumstances of this case. As explained below, we agree
with defendant’s arguments and remand for resentencing.
         The pertinent facts are undisputed. In 1997, defendant, who was 24 years old at the time, enticed four young
girls who were skipping their middle school classes to come
to his home by offering them marijuana. When they arrived
at defendant’s home, he did not produce any marijuana, and
two of the girls left.
        Defendant then proceeded to rape both girls, who
were 11 and 12 years old at the time. He then produced marijuana, and both girls smoked with him. One of the girls
reported the incident the following morning, which triggered
an investigation. Defendant was indicted for various offenses
and then absconded, even living outside the country at
times.
         In 2016, defendant pleaded guilty to two counts of
second-degree rape and two counts of delivering a controlled
substance to a minor. At sentencing, the state argued that
the sentences for the second-degree rape convictions should
be consecutive, and that the sentences for the delivery convictions should be served concurrently with each other, but
consecutive to the rape sentences. Defendant argued that,
because the crimes took place in “one criminal episode,”
the sentences for the delivery convictions should be concurrent with the second-degree rape sentences. Defendant also
530                                                         State v. Decleve

asserted that, if the court were to impose the sentences consecutively, then the shift-to-I rule would apply to the delivery convictions.

         The trial court sentenced defendant to 75 months’
incarceration on each second-degree rape conviction as
required by ORS 137.700(2)(a)(L) and ordered one of the rape
sentences to be served consecutively to the other.1 Further,
the trial court sentenced defendant on each of the delivery
convictions to 18 months’ incarceration to be served concurrently with each other, but consecutively to the rape sentences, for a total sentence of 168 months. In so doing, the
court applied the shift-to-I rule when it calculated defendant’s criminal history score on the delivery convictions.
The court did not, however, apply the 200-percent rule,
which was not raised by any party at sentencing.

         On appeal, defendant argues that the trial court
committed plain error by failing to apply the 200-percent
rule required by OAR 213-012-0020(2)(b) after it applied
the shift-to-I rule required by OAR 213-012-0020(2)(a)(B).2
Relying on State v. Longenecker, 

, 

,
rev den, 

 (2001), and State v. Skelton, 

, 

, rev den, 

 (1998), defendant
urges us to exercise our discretion to correct the plain error
as we have done in similar cases. The state remonstrates

    1
      ORS 137.700 has since been amended after defendant committed his
crimes. Because those amendments do not affect our analysis, we refer to the
current version of the statute.
    2
      Although the rule has been amended several times since defendant’s conduct, we refer to the current version of OAR 213-012-0020, because the amendments do not affect our analysis. OAR 213-012-0020 provides, in part:
      “(2)(a) Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:
       “(A) The presumptive incarceration term or the prison term defined in
   OAR 213-008-0005(1) imposed pursuant to a dispositional departure for the
   primary offense, as defined in OAR 213-003-0001(17); and
       “(B) Up to the maximum incarceration term indicated in the Criminal
   History I Column for each additional offense imposed consecutively.
       “(b) The total incarceration term of the consecutive sentences, including the incarceration term for the primary offense, shall not exceed twice
   the maximum presumptive incarceration term or the prison term defined in
   OAR 213-008-0005(1) imposed pursuant to a dispositional departure of the
   primary sentence except by departure as provided by OAR 213-008-0007.”
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 (2019)                               531

that defendant’s unpreserved claim is not reviewable as
plain error, because, in its view, the trial court was not
required to apply either the shift-to-I rule or the 200-
percent rule under the facts of this case. The state argues
that the two unlawful deliveries were not part of the “same
criminal episode” as the two rapes.
         To qualify for plain-error review under ORAP 5.45,
an error must be: (1) an error of law; (2) obvious and not
reasonably in dispute; and (3) apparent on the record without requiring an appellate court to choose among competing
inferences. See, e.g., State v. Vanorum, 

, 

 (2013); Ailes v. Portland Meadows, 

, 381-
82, 

 (1991). If the three-pronged plain-error test
has been satisfied, we must then decide whether to exercise
our discretion to review the error and explain our reasons
for doing so. Vanorum, 

 (so stating); Ailes, 

 (same).
         On the first prong, the parties do not dispute that
the trial court’s sentencing error, if any, is a legal one. Thus,
we begin with the second prong of the plain-error test, viz.,
whether defendant’s claim is obvious and not reasonably in
dispute. As explained below, we conclude that defendant’s
claim of sentencing error meets that part of the plain-error
test.
         Under the sentencing guidelines, when multiple consecutive sentences are imposed for crimes committed during
the same criminal episode, only the primary offense is sentenced based on the offender’s true criminal history; the
additional offenses are classified under column I as required
by OAR 213-012-0020(2)(a)(B). That is the shift-to-column-I
rule or shift-to-I rule. See generally State v. Worth, 

, 

 (2015), rev den, 

(2016) (providing overview of the sentencing guidelines and
explaining the shift-to-I rule). A different subsection of the
same rule—colloquially referred to as the 200-percent rule—
generally requires multiple consecutive sentences to be limited to twice the presumptive sentence imposed for the primary offense. OAR 213-012-0020(2)(b); see also Worth, 

 (explaining the 200-percent rule for nondeparture sentences).
532                                           State v. Decleve

         Both the shift-to-I rule and the 200-percent rule
apply when a sentencing court imposes consecutive sentences on offenses that arise out of the “same criminal episode.” State v. Cuevas, 

, 156 n 8, 

 (2015). A “criminal episode” is “continuous and uninterrupted conduct that establishes at least one offense and is
so joined in time, place and circumstances that such conduct
is directed to the accomplishment of a single criminal objective.” ORS 131.505(4).

         In a long line of cases, we consistently have held
that, once a sentencing court applies the shift-to-I rule, the
200-percent rule also applies to a defendant’s sentence. See,
e.g., State v. Carrillo, 

, 

(2017) (holding that the trial court committed plain error by
not applying the 200-percent rule where the parties treated
all of the counts as arising out of the same criminal episode); Worth, 

 (“[A] sentence that comports
with the ‘shift-to-I’ rule, but violates the ‘200%’ rule, must
be adjusted to comply with the latter.”); State v. Lepierre, 

, 

 (2010) (reversing sentence
where state conceded that consecutive sentence imposed
on burglary conviction was subject to 200-percent rule and
subject to plain-error review); see also Skelton, 

, (concluding that the trial court committed plain
error by failing to apply the 400-percent rule, which is now
codified at OAR 213-008-0007(3) and limits the maximum
incarceration term that may be imposed for all of the consecutive sentences together by departure).

         In this case, it is undisputed that the trial court
determined that the shift-to-I rule applied to the delivery
convictions and that, despite that determination, the trial
court did not apply the 200-percent rule. Under that scenario, the sentencing court must finish what it started.
Consistent with our prior cases, we conclude that the trial
court erred by not applying the 200-percent rule after it
determined that the shift-I-rule applied. See Worth, 

 (observing that “a sentence that comports with
the ‘shift-to-I’ rule, but violates the ‘200%’ rule, must be
adjusted to comply with the latter”). In short, we conclude
that, given the long line of cases correcting this type of
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 (2019)                                533

error, defendant’s claim readily meets the second prong of
the plain-error test requiring the error to be “apparent,” i.e.
obvious and not reasonably in dispute.
         Turning to the third prong of the plain-error test—
whether the error is apparent on the record—the state
argues that the record in this case does not establish that
defendant committed the two unlawful delivery offenses as
part of the same criminal episode as the two rape offenses.
The state contends: “Because [defendant] did not commit the
unlawful-delivery offenses until after he had already completed the rapes, it cannot be said that the unlawful-delivery
offenses were merely incidental or preparatory to commission of the rape offenses[.]” Thus, in the state’s view, because
the record does not clearly demonstrate that the trial court
had to use the shift-to-I rule in the first place, it is not plain
error for the trial court to fail to use the 200-percent rule
under these circumstances.
         Although the state makes a plausible argument
about the application of the shift-to-I rule, the propriety
of the trial court’s decision in that regard is not before us
on appeal. The state did not cross-assign error to the trial
court’s determination that the shift-to-I rule applied and
thus we have no occasion to review that determination.
Rather, the question before us is whether it is apparent on
this record that the court was required to apply the 200-
percent rule once it had already determined the shift-to-I
rule applied or whether we have to go outside the record to
choose between competing inferences to so conclude. Given
that the trial court already determined that the shift-to-I
rule applies, there are no competing inferences and the same
factual determinations, whether they be explicit or implicit,
should have compelled the court to apply the 200-percent
rule. As we repeatedly have held, once a trial court determines that the shift-to-I rule applies to a sentence, the 200-
percent rule also applies for nondeparture sentences. See,
e.g., Carrillo, 

; Lepierre, 

. Accordingly, defendant’s claim of sentencing error
meets the third prong of the plain-error test.
         Finally, having concluded that defendant’s claim
satisfies the three-pronged test for plain-error, we still must
534                                                          State v. Decleve

determine whether to exercise our discretion to correct the
error. As the Supreme Court has explained:
    “That discretion entails making a prudential call that
    takes into account an array of considerations, such as the
    competing interests of the parties, the nature of the case,
    the gravity of the error, and the ends of justice in the particular case. Ultimately, a decision to review a plain error
    is one to be made with the ‘utmost caution’ because such
    review undercuts the policies served by the preservation
    doctrine.”
Vanorum, 

 (citations omitted). Defendant
urges us to exercise our discretion just as we have done in
prior cases that presented similar sentencing errors, noting
that the application of the 200-percent rule in his case would
have reduced his sentence by 18 months. See Longenecker,

 (exercising discretion to correct as plain
error sentence that exceeds the maximum); see also Carrillo,

 (accepting state’s concession on failure to
apply 200-percent rule and exercising discretion to address
claim as one of plain error). The state does not distinguish
those cases; rather, it seeks a remand under former ORS
138.222(5)(a) (2015), which provided that a remand was
required if “the appellate court determines that the sentencing court, in imposing a sentence in the case, committed
an error that requires resentencing.”3 We agree with both
parties’ arguments.
         First, we agree with defendant’s argument and, for
the same reasons explained in previous cases, exercise our
discretion to address defendant’s sentencing claim given
the gravity of the error and the ends of justice. See Carrillo,

 (exercising discretion to correct as plain
error consecutive sentences that exceeded maximum allowable under the 200-percent rule by seven months); State v.
Truong, 

, 

, rev den, 

 (2012), cert den, 

 (2013) (exercising discretion
    3
       Former ORS 138.222 (2015) was repealed in 2017 by Senate Bill (SB) 896
(2017). Or Laws 2017, ch 529, § 26. Because the judgment in this case was entered
before the January 1, 2018, effective date of SB 896, its provisions do not apply.
Or Laws 2017, ch 529, § 28 (providing that SB 896 applies “on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017
Act”).
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 (2019)                           535

to correct as plain error consecutive sentences that exceeded
the maximum by four months). Second, we agree with the
state’s argument that remand is appropriate under former
ORS 138.222(5)(a). Because we remand for resentencing, the
parties are free to argue to the trial court about the appropriate sentence under the circumstances of the case.
        Remanded for resentencing; otherwise affirmed.