State v. Moore

                                         21

        Submitted January 27, remanded for resentencing June 24, 2020


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     DANIEL STEVEN MOORE,
                        Defendant-Appellant.
                   Clackamas County Circuit Court
                        CR1301855; A168300
                                    

     This is the second time this case has been heard on appeal. In State v. Moore,

, 

 (2018), defendant appealed from a judgment
imposing sentences on his convictions for three counts of rape in the second
degree. We reversed and ordered defendant resentenced. At resentencing, the
trial court explained that its decision to impose consecutive sentences was, in
part, based on defendant’s decision to go to trial, thus “reoffending” the victim.
Defendant asserts that the court plainly erred, arguing that the record must
affirmatively show that the sentence imposed is based solely on the facts of the
case and defendant’s personal history, and not on defendant’s exercise of his constitutional rights. The state responds that, because the court articulated other
permissible reasons, the error is not plain. Held: Although defense counsel did
not object to the trial court’s reasoning, the court plainly erred. The record in this
case fails to affirmatively show that the court imposed the sentence based solely
on the facts of the case and defendant’s personal history, and not on defendant’s
exercise of constitutional rights.
    Remanded for resentencing.



    Robert D. Herndon, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
    JAMES, J.
    Remanded for resentencing.
22                                                   State v. Moore

           JAMES, J.

         This is the second time this case has been before us
on appeal. In State v. Moore, 

, 

 (2018), defendant appealed the judgment imposing sentences on his conviction for three counts of rape in the second degree. ORS 163.365. We reversed and ordered defendant resentenced. At resentencing, the trial court imposed
consecutive sentences, explaining that three considerations
affected its decision, one of which was that the defendant
insisted on a trial “so the victim then was reoffended and
ha[d] to appear in court once again and explain this case.”
Although defense counsel did not object to the trial court’s
reasoning, defendant asks us to find plain error, arguing
that the record must affirmatively show that the trial court
imposed sentence based solely on the facts of the case and
defendant’s personal history, and not on defendant’s exercise of his constitutional rights. According to defendant, the
record in this case fails to meet that standard, and plain
error review is appropriate. We agree. Accordingly, we
vacate the sentences and remand for resentencing.

         The relevant facts for our purposes are procedural,
and include comments made in the original sentencing, as
well as on resentencing. Defendant was originally convicted
following a bench trial of three counts of second-degree rape
under ORS 163.365. At sentencing, the trial court explained
that it was persuaded that the maximum sentence was
appropriate, reasoning:
        “[T]he notion that this—there had to be a criminal proceeding and a trial so the truth could come out is, of course,
     sidestepped the one person who had the opportunity to
     make sure that a trial didn’t take place is yourself by truly
     having accepted responsibility and having had the—passed
     the opportunity, apparently, to enter a guilty plea … and
     keep this young woman from having to appear in court and
     testify to this.”

        The trial court then imposed a 75-month sentence
for Count 1, rape in the second degree, and then imposed
75-month sentences for Counts 2 and 3, rape in the second degree, to run consecutively, resulting in a 225-month
Cite as 

 (2020)                                        23

aggregate sentence. The trial court explained its reasoning
for imposing consecutive sentences:
      “For Count 2, that being a second and separate criminal
   episode, I’m required, as I see it, to impose a consecutive
   sentence because that was a separate occasion on which
   you had had an opportunity for thoughtful reflection on the
   criminality of the first sentence—or the first crime that
   you had committed and despite that fact, committed a further forcible Rape in the Second Degree here.”

Moore, 

 (emphasis omitted).
         In his first appeal, defendant argued that the trial
court plainly erred when it imposed consecutive sentences
based on its mistaken belief that consecutive sentences were
required. 

 We agreed and remanded for resentencing, but
“recognize[d] that, on remand, it [was] possible that the court
will exercise its discretion to impose the same sentence.”

. We noted that the sentence ultimately imposed
was for the trial court to determine, but that whatever sentence the trial court imposed must be “based on a correct
understanding of the law.” 

         On remand, counsel for defendant asked the court
to exercise its discretion to run part of the three sentences concurrently. As with the first sentencing, the trial
court declined, again imposing the same three consecutive 75-month sentences. The trial court explained that we
“misinterpreted [its] remark,” and when, in the original
sentencing it said it was “required” to impose consecutive
sentences, it meant that “[it] felt required to do it because
the victim suffered three separate instances of—as a result
of [defendant’s] criminal conduct.” Then, before re-imposing
the same sentence, the trial court articulated three reasons
for why, in its view, consecutive sentences were warranted
in this case:
   “[Defendant] had the opportunity to think and reflect …
   and continued to reoffend. And then, additionally, you
   know the defense [defendant] offered up in this case and
   the explanation for [his] conduct was just absolutely unbelievably poor and just again reflected the fact that [he] just
   didn’t get it at that point in time.
24                                                 State v. Moore

         “And so, the victim was reoffended and having to appear
     in court once again and explain this case. These were three
     separate criminal episodes. The consecutive sentences as
     previously imposed were appropriate and the facts just
     require that that was the sentence you justly earned as a
     result of committing three separate crimes.”
(Emphases added.)
          Although defendant requested that the trial court
impose concurrent sentences, he did not object to the trial
court’s comments. This appeal followed. On appeal defendant raises a plain error challenge to the trial court’s imposition of consecutive sentences, arguing that, in light of the
reasoning expressed by the trial court for imposing consecutive sentences, this record fails to affirmatively show that
the trial court imposed sentence based solely on the facts of
his case and personal history.
         The state does not argue that the trial court’s comment that “the victim was reoffended and having to appear
in court once again and explain this case” was a proper consideration for the imposition of sentence. Rather, the state
argues that, because other, permissible, reasons were articulated, we cannot be certain that the trial court imposed
the sentence because of the impermissible reason. Rather,
argues the state, “[a] reasonable inference—and arguably
the most plausible one—is that the trial court knew the law
on proper sentencing considerations and followed the law in
deciding the appropriate sentence.” That inference, argues
the state, forecloses plain error review.
          Whether a record evidences that a trial court
sentenced a defendant solely on the facts of the case and
defendant’s personal history is a question of law, which we
review for errors of law. State v. Qualey, 

,

 (1995). On claims of plain error, we apply the
two-pronged inquiry first articulated in Ailes v. Portland
Meadows, Inc., 

, 

 (1991). Under
the first prong, an error is “plain” if three requirements are
met: (1) the claimed error must be an error of law; (2) the
point must be obvious, i.e., not reasonably in dispute; and
(3) the error cannot require the court to go outside the record
or select among competing inferences to decide it. State v.
Cite as 

 (2020)                                         

 (2001), cert den, 

 (2002). If the first prong is satisfied, we must decide
whether to exercise our discretion to review the error. In
deciding whether to review a plain error, we may consider
   “the competing interests of the parties; the nature of the
   case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
   and whether the policies behind the general rule requiring preservation of error have been served in the case in
   another way, i.e., whether the trial court, in some manner,
   was presented with both sides of the issue and given an
   opportunity to correct any error.”
Id. at 180 n 11 (citing Ailes, 

 n 6). We turn now
to the merits.
         It is well-established Oregon law that “[t]he record
must affirmatively show that the court sentenced the defendant solely upon the facts of the case and his personal history, and not as punishment for his refusal to plead guilty.”
State v. Fitzgibbon, 

, 

 (1992)
(citing State v. Smith, 

, 

 (1981)). A
trial court “may not impose a sentence that is longer than it
would have been had [the defendant] not exercised the right
to go to trial or not utilized a defense that was inconsistent
with owning up to his misdeeds.” Id. at 586.
         In Qualey, the sentencing court “openly expressed
displeasure with the defendant’s decision to take the case to
trial” and stated:
   “From my perspective [defendant], you traumatized [the
   victim] twice: Once was on the day of the incident, and the
   second was putting him through this court hearing here
   again. That was a choice you made after lots of reflection,
   [and] after plenty of opportunity to consider the alternatives ….”

. When the defendant’s counsel questioned the motive behind the sentencing decision, the court
responded: “[The defendant] is entitled to exercise his
rights. He is not insulated from the consequences of doing
that when it harms other people and there are viable alternatives.” 

 (emphasis omitted). After reviewing the
record as a whole, we held that “the court’s statements le[d]
26                                                 State v. Moore

to the inference that defendant’s sentence, or part thereof,
was based on defendant’s decision to reject the prosecutor’s
plea bargain and proceed to trial.” 

 We remanded for
resentencing because we could not say that the defendant
was sentenced “solely on the facts of his case and personal
history.” 

 (Emphasis in original.)
        In State v. Hainline, 

, 

 (2019), the sentencing court stated:
     “The fact that you did put your daughters through additional trauma by forcing them to take the witness stand
     … [that] does bear some weight on the Judgment that I’m
     going to render and the sentence I’m going to render.”

 On appeal, the state conceded that the statement
“improperly created an inference that defendant’s sentence,
or part thereof, was based on defendant’s decision to proceed to trial.” 

. We agreed and remanded for resentencing because we “could not ‘say that the court sentenced
defendant solely on the facts of his case and personal history.’ ” Hainline, 

 (quoting Qualey, 

 (emphasis in Qualey)).
         Contrary to the state’s argument in this case, the
fundamental inquiry in these types of cases does not change
when considered under a plain error lens. While we agree
that in many instances the presence of competing inferences
might caution against plain error review, here, competing
inferences do not detract from the plain and obvious legal
error. Qualey makes clear that the record must be devoid of
any inference of a sentence imposed on an improper basis.
A record is legally deficient if we cannot say “that the court
sentenced defendant solely on the facts of his case and personal history.” Hainline, 

 (internal quotation marks omitted). The presence of a record that fails to
meet that standard—where we cannot say that defendant
was sentenced solely on the facts of his case and personal
history, and not on some other impermissible basis—is legal
error apparent on the face of the record.
        Here, the record on resentencing shows that the trial
court articulated three reasons for its imposition of consecutive sentences. The third reason was that “the victim was
Cite as 

 (2020)                                     27

reoffended and having to appear in court once again and
explain this case.” That comment echoes a similar comment
by the trial court in the first sentencing where it stated, in
imposing sentence, “the notion that this—there had to be
a criminal proceeding and a trial so the truth could come
out is, of course, sidestepped the one person who had the
opportunity to make sure that a trial didn’t take place is
yourself.” Those reasons are a clear comment on defendant’s
invocation of his constitutional right to a trial. Those statements are indistinguishable from the improper statements
in Qualey that we held created an “inference that defendant’s sentence, or part thereof, was based on defendant’s
decision to reject the prosecutor’s plea bargain and proceed
to trial.” Qualey, 

.
         We recognize that trial courts, in imposing sentences, are often faced with courtrooms filled with individuals with different needs. It is understandable, and entirely
human, for a trial court to want to express empathy for all
people—victims, families, witnesses, the defendant, and the
defendant’s family. In fact, it is this respect for the needs and
emotions of all who come before the court—the accused and
the victimized, the injured and the injurer—that helps to
imbue a trial court’s legal decisions with the aura of justice.
But there is a line between understanding the entirely real
strain that a trial puts on people and using that strain as a
rationale for the imposition of a sentence. Resolving matters
at trial is “one of the most important safeguards against
tyranny which our law has designed.” Lee v. Madigan, 

, 

, 

 (1959). It is also the
absolute right of all persons, regardless of the accusation.
        Having determined that this record is plainly erroneous under the first prong of Ailes, we must determine
whether to exercise our discretion to correct the error. In
the context of exercising our plain-error discretion in sentencing errors, we have noted,
   “[a]s pertinent to sentencing issues, we also consider
   whether the defendant encouraged the trial court’s imposition of the erroneous sentences, the possibility that the
   defendant made a strategic choice not to object to the sentences, the role of other sentences in the case, and the
28                                                             State v. Moore

     interests of the judicial system in avoiding unnecessary
     repetitive sentencing proceedings.”
State v. Camacho-Alvarez, 

, 

(2009).
         Here, defendant did not encourage the error, and
the failure to object is understandable. It is entirely rational
for defense counsel, perceiving that a court is upset with a
defendant, to try to minimize further harm by remaining
silent. Finally, as we noted in Camacho-Alvarez, “the burden
on the judicial system in amending its judgment and resentencing defendant is minimal [and] the ends of justice are
served by convicting and sentencing defendant according to
the law.” 

 Finally, a record which does not reflect that a
trial court sentenced a defendant based solely on the facts
of the case and personal history, and not on the defendant’s
exercise of constitutional rights, risks undermining public
confidence in the judicial system. For all those reasons, we
exercise our discretion to correct the error here.1
           Remanded for resentencing.




    1
      Our disposition in no way affects the sentence ultimately imposed. The
appropriate sentence is for the trial court to determine, and the trial court is not
foreclosed from imposing the same sentence should the law permit, and, the facts
warrant.