State v. Sellards

                                 843

   Argued and submitted December 20, 2019; remanded for resentencing,
                 otherwise affirmed January 23, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 SARAH JEAN SELLARDS,
                    Defendant-Appellant.
               Clackamas County Circuit Court
                    17CR83603; A168452
                              

   Ulanda L. Watkins, Judge.
   Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
844                                          State v. Sellards

        PER CURIAM
         Defendant appeals from a judgment of conviction
for first-degree burglary and attempted fourth-degree
assault. Defendant assigns error to the trial court’s finding
that the burglary conviction comes within sentencing grid
block 9-H based on defendant threatening or attempting to
cause physical injury. See OAR 213-017-0003(11) (placing
first-degree burglary in crime category (CC) 9 “[i]f offender
was armed with a deadly weapon, or caused, threatened or
attempted physical injury; otherwise CC 8 or 7”).
         Defendant pleaded guilty to the charged offenses.
For the first-degree burglary count, the indictment alleged:
      “The defendant, on or about November 25, 2017, in
   Clackamas County, Oregon, did unlawfully and knowingly
   enter a dwelling located at 15117 SE Oatfield Road,
   Milwaukie, with the intent to commit the crime of theft
   therein.
       “The state further alleges that the above-described
   offense was committed in an occupied dwelling.”
        For the attempted fourth-degree assault count, the
indictment alleged:
      “The defendant, Sarah Jean Sellards, on or about
   November 25, 2017, in Clackamas County, Oregon, did
   unlawfully and intentionally attempt to cause physical
   injury to [the victim].”
         Additionally, the indictment alleged that the offenses
were “of the same or similar character, based on the same
act or transaction, and/or based on two or more acts or
transactions connected together or constituting parts of a
common scheme or plan.” That language was necessary so
that the two counts could be joined in the indictment. ORS
132.560(1)(b). The trial court found that defendant was in
sentencing grid block 9-H for the burglary count based on
the allegations in the joined assault count.
        On appeal, defendant reprises her argument from
below that the state was required to allege in the burglary
count the subcategory facts to enhance the crime category
for burglary and could not use the allegations from the
Cite as 

 (2020)                               845

assault count to do so. The state responds that the indictment was sufficient in this case because it included an allegation that the two offenses occurred “based on the same act
or transaction.”
       Defendant is correct, and we reject the state’s argument. ORS 132.557(1) provides:
      “When a person is charged with a crime committed on or
   after November 1, 1989, that includes subcategories under
   the rules of the Oregon Criminal Justice Commission, the
   state is required to plead specially in the indictment, in
   addition to the elements of the crime, any subcategory fact
   on which the state intends to rely to enhance the crime for
   sentencing purposes. The state shall plead the elements and
   subcategory facts in a single count.”
(Emphasis added.) The trial court erred in relying on allegations in the assault count to enhance the crime category
for the burglary count. We have long held that it is error
to do so. See State v. Drake, 

, 

(1992) (“Subcategory circumstances define the specific conduct with which a defendant is charged, and a sentence cannot be enhanced if those circumstances are not alleged in
the offense charged.”). The requirement in ORS 132.557(1)
that the state must plead crime elements and subcategory
facts “in a single count” cannot be met merely by pleading
allegations that satisfy the joinder statute. Accordingly, we
remand this case for resentencing.
        Remanded for resentencing; otherwise affirmed.