State v. Shields

                                      516

     Argued and submitted February 14, 2020; reversed and remanded for
              resentencing, otherwise affirmed March 3, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    DERRICK EARL SHIELDS,
                        Defendant-Appellant.
                    Jackson County Circuit Court
                        17CR26927; A167858
                                  

     Defendant appeals a judgment sentencing him to 45 months in prison and
three years of post-prison supervision on a conviction for first-degree burglary,
ORS 164.225. At the time of sentencing, defendant had no prior Oregon convictions but had prior Georgia convictions. Relying on five Georgia convictions, the
sentencing court placed defendant in criminal history category “A,” the highest
category, for purposes of the sentencing guidelines. Defendant contends that the
sentencing court erred in its application of OAR 213-004-0011(1), which provides
that a prior out-of-state conviction is to be included in a defendant’s criminal
history score only if the elements of the out-of-state offense correspond to an
Oregon felony or Oregon Class A misdemeanor. Defendant maintains that the
Georgia offenses do not correspond to Oregon offenses. Held: The sentencing
court did not err by including in defendant’s criminal history score his two prior
Georgia convictions for first-degree criminal damage to property, OCGA § 16-7-
22(a). However, it erred by including his prior Georgia convictions for aggravated
assault, OCGA § 16-5-21(a), and possession of a firearm during the commission of
a felony, OCGA § 16-11-106(b).
    Reversed and remanded for resentencing; otherwise affirmed.



    David G. Hoppe, Judge.
   Bear Wilner-Nugent argued the cause and filed the brief
for appellant.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
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  AOYAGI, J.
   Reversed and remanded for resentencing; otherwise
affirmed.
  Tookey, J., specially concurring.
518                                          State v. Shields

        AOYAGI, J.
         Defendant appeals a judgment sentencing him to
45 months in prison and three years of post-prison supervision on a conviction for first-degree burglary. He argues that
the sentencing court miscalculated his criminal history
score by improperly including five out-of-state convictions.
Defendant contends that, as a result, he was erroneously
placed in the highest category, “A.” Under OAR 213-004-
0011(1), prior out-of-state convictions are to be included in
a defendant’s criminal history only “if the elements of the
offense would have constituted a felony or Class A misdemeanor under Oregon law.” As to two of defendant’s out-of-state convictions, we agree with defendant that the sentencing court erred. Accordingly, we reverse and remand for
resentencing.
                           FACTS
        Defendant was convicted of one count of first-degree
burglary, ORS 164.225, and one count of first-degree aggravated theft, ORS 164.057. He does not challenge his convictions. He also does not challenge his sentence on the theft
count, which was a departure sentence jointly recommended
by the parties. We therefore discuss only the facts relevant
to defendant’s burglary sentence.
         At sentencing, the state argued that defendant had
five prior Georgia convictions that should be included in
his criminal history score as corresponding to Oregon person felonies or person Class A misdemeanors. Specifically,
the state established that defendant has two prior convictions for first-degree criminal damage to property, OCGA
§ 16-7-22(a), which it argued corresponds to unlawful use of
a weapon, ORS 166.220, or recklessly endangering another
person, ORS 163.195. The state established that defendant
has a prior conviction for aggravated assault, OCGA § 16-5-
21(a), which it argued corresponds to first-degree assault,
ORS 163.185, unlawful use of a weapon, ORS 166.220, or
menacing, ORS 163.190. The state established that defendant has a prior conviction for possession of a firearm
during the commission of a felony, OCGA § 16-11-106(b),
which it argued corresponds to unlawful use of a weapon,
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ORS 166.220, recklessly endangering another person,
ORS 163.195, or menacing, ORS 163.190. Finally, the state
asserted that defendant has a prior conviction for battery,
OCGA § 16-5-23.1, which it argued corresponds to fourth-degree assault, ORS 163.160.1
         In response, defendant opposed including any
Georgia convictions in his criminal history score, arguing
that the state had “failed to prove that any of the Georgia
convictions have any correlation to Oregon crimes.”
         After hearing the parties’ arguments, the sentencing court agreed with the state that all five Georgia convictions correspond to Oregon offenses. On that basis, the court
placed defendant in criminal history category “A” and sentenced him on the burglary count to the presumptive term
of 45 months in prison and three years of post-prison supervision. The court explained:
       “To me, the only argument is kind of academic on
    whether it’s an 8A or an 8B under the sentencing guidelines
    grid, looking at all of those offenses that were mentioned as
    person misdemeanors at least, if not person felonies.
       “I believe that they do constitute at least person misdemeanors and that they would constitute either shooting
    recklessly, endangering,[2] or menacing.
        “In addition, I believe they constitute unlawful use of
    a weapon. And those four in and of themselves would be
    enough, but I looked at State v. Higgins[, 

,
    

 (2000)]. Under Higgins analysis on battery, I
    do find that when you leave a bite mark,[3] that is temporary
    impairment as injury. That’s beyond the harassment. We
    find that to constitute the elements of an assault.

     1
       The state also identified in its sentencing memorandum some Georgia
convictions for drug offenses. The sentencing court never addressed the drug
offenses, as the person offenses were dispositive, and the state does not discuss
them on appeal. To the extent those convictions are relevant, the sentencing
court may address them at resentencing.
     2
       Although the court’s phrasing as punctuated in the transcript is awkward,
it is clear in context (and undisputed) that, when the court said, “shooting recklessly, endangering,” it was referring to the Oregon offense of recklessly endangering another person.
     3
       The charging instrument for defendant’s Georgia battery conviction alleged
that defendant caused a “bite mark” to the victim.
520                                              State v. Shields

        “So we have at least five person misdemeanors or at
     least four without looking at merger argument on the person felonies.
        “I believe that there’s three person felonies for sure
     there. … [A]nd that’s without combining the two person
     misdemeanors into a person felony.
        “So at this point, I’m going to sentence you as an
     8A, which is 45 months in the Oregon Department of
     Corrections.”
         On appeal, defendant reprises his arguments to
the sentencing court, contending that his “prior Georgia
offenses, correctly compared … to current Oregon crimes,
do not suffice to place [him] in criminal history category A.”
In defendant’s view, none of his Georgia offenses correspond
to Oregon offenses, and so he should have been placed in
category “I.” The state disagrees, maintaining that no error
occurred.
                           ANALYSIS
A.    Legal Principles
         Under the Oregon sentencing guidelines, a defendant’s criminal history score is calculated by counting
his or her prior felony convictions, Class A misdemeanor
convictions, and felony-equivalent juvenile adjudications.
OAR 213-004-0007. The sentencing guidelines distinguish
between “person” and “non-person” crimes. “Person” felonies
are defined in OAR 213-003-0001(14), and “person” Class A
misdemeanors are defined in OAR 213-003-0001(15). For
criminal history purposes, two person Class A misdemeanors count as one person felony. OAR 213-004-0008.
         Defendant has no established juvenile adjudications,
so we limit our discussion to adult convictions. A defendant
with three or more prior person felony convictions belongs in
criminal history category A, which is the highest category.
OAR 213-004-0007. Categories B, C, and D apply to defendants with one or two prior person felony convictions. 

Categories E, F, G, and H apply to defendants with various
numbers of nonperson felony or misdemeanor convictions but
no prior person felony conviction. 

 The lowest category, I,
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applies to defendants with no prior felony or Class A misdemeanor convictions.
         Out-of-state convictions are to be included in a
defendant’s criminal history score, but only if the elements
of the out-of-state offense “correspond to the elements of an
Oregon felony or Class A misdemeanor.” State v. Tapp, 

, 

 (1991) (discussing former OAR
XXX-XX-XXXX (1991), renumbered as OAR 213-004-0011
(1996)); OAR 213-004-0011(1) (“An out-of-state adult conviction shall be used to classify the offender’s criminal history
if the elements of the offense would have constituted a felony or Class A misdemeanor under current Oregon law.”).
As to “person” crimes in particular, “if the elements of the
offense would have constituted an offense under Oregon law
listed at OAR 213-003-0001(14) or (15),” then the out-of-state
convictions “shall be classified as person felonies or person
Class A misdemeanors.” OAR 213-004-0011(3).
         It is the state’s burden to prove what prior convictions a defendant has. State v. Torres, 

,

, adh’d to on recons, 

, 

(2002). If a presentence report was prepared, “the defendant’s
criminal history as set forth in the presentence report shall
satisfy the state’s burden of proof as to the defendant’s criminal history,” except insofar as the defendant gives notice
of a factual error, in which case the state must prove “by a
preponderance of evidence any disputed part of the defendant’s criminal history.” ORS 137.079(5); see also Torres, 

 (notice is required only to allege a factual
error in the presentence report, not to challenge “the legal
consequence of an accurate report”). Alternatively, the district attorney may provide a “criminal history summary,”
subject to the same dispute process as a presentence report.
OAR 213-004-0013(3). Or, as occurred here, the state may
offer evidence at sentencing to prove prior convictions, such
as (but not limited to) certified copies of prior charging
instruments and judgments. See OAR 213-004-0013; State
v. Santos, 

, 

, rev den, 

 (2009).
         Once the state establishes the existence of an out-of-state conviction, OAR 213-004-0011 requires element
522                                                         State v. Shields

matching to determine if the out-of-state offense corresponds to an Oregon offense. State v. R-Robinson, 

, 

 (2016); State v. Provencio, 

, 

 (1998). The out-of-state offense must
have “elements that are the same as or nearly the same as
the elements of the Oregon crime to which it is compared.”
State v. Guzman, 

, 

 (2019) (internal
quotation marks and emphasis omitted). Significantly, the
sentencing court is limited to comparing the elements of the
offenses. Its task is not to determine whether defendant’s
out-of-state conduct would constitute an Oregon offense.
“Had the drafters intended conduct to be considered, they
could have drafted a rule that was not limited only to consideration of the elements of an offense.” State v. Golden, 

, 

 (1992).
         If the elements of an out-of-state offense are broader
and more inclusive than an Oregon offense—such that some
ways of committing the out-of-state offense correspond to an
Oregon offense, but others do not—it is the state’s burden to
produce the out-of-state charging instrument and judgment
to establish that the defendant committed it in a way that
corresponds to an Oregon offense. R-Robinson, 

. If the state fails to do so, it fails to meet its burden
of proof, and the out-of-state conviction cannot be included
in the defendant’s criminal history score. Provencio, 

; see also Torres, 

 (remanding
for resentencing based on such error); Golden, 

 (same).4 There is no such issue when the elements of
an out-of-state offense are narrower than an Oregon offense.
“When a foreign offense differs from an Oregon offense only
because it is narrower, that difference will not preclude the
offense from being a close element match.” Guzman, 

 n 7. That is because violation of the out-of-state statute
“necessarily constitute[s] a violation of the Oregon statute.”
Provencio, 

.
    4
      To illustrate, in Golden, the defendant was convicted of a Pennsylvania
offense that could be committed in multiple ways, only one of which corresponded
to the Oregon offense of menacing. The state failed to produce the Pennsylvania
accusatory instrument and judgment, so it was unknown which way the defendant had committed the offense. Given that failure of proof, the trial court erred
in counting the Pennsylvania conviction, and the defendant was entitled to resentencing. Golden, 

.
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         We review the calculation of a defendant’s criminal
history category—including the treatment of out-of-state
convictions—for legal error. See ORS 138.105(7), (8)(c)(A);
Provencio, 

. Whether the elements of an
out-of-state offense correspond to an Oregon offense is a
question of law. See State v. Gunter, 

, 

 (2003).
         Here, the sentencing court concluded that defendant
has five Georgia convictions for offenses that correspond to
Oregon person felonies or person Class A misdemeanors.
We consider each of the Georgia convictions in turn. Before
doing so, we note that our task is somewhat complicated
by the sentencing court’s minimal explanation of its legal
reasoning. Except for the battery conviction, the state had
identified multiple Oregon offenses as corresponding to each
Georgia conviction. Given the numerous offenses in play, it
would have been helpful for the sentencing court to address
each Georgia conviction individually and to specify the corresponding Oregon offense(s), even if it did not engage in
the actual element matching on the record. In some cases,
the minimal explanation given here could impede appellate
review. In this case, however, the parties agree as to which
Georgia convictions the sentencing court relied on, as well
as agree as to which Oregon offenses the court considered
to correspond to those Georgia offenses. The parties also
agree as to the applicable legal standard, and neither party
suggests that the sentencing court applied an incorrect
legal standard. The only dispute is whether the sentencing court applied the legal standard correctly to the particular offenses at issue. As such, the universe of relevant
legal issues is clearly defined, and the questions presented
on appeal are purely questions of law. We therefore proceed
to the merits of the parties’ arguments.5
     5
       In a concurring opinion, our colleague suggests that it is somehow improper
for us to address the merits of the parties’ arguments in this case, either because
the sentencing court did not explain its reasoning well enough on the record or
because the state did not meet its evidentiary burden. See 309 Or App at 529,
533-34 (Tookey, J., specially concurring). That position is both perplexing and
untethered to defendant’s arguments. The concurrence suggests that the sentencing court may have applied the wrong legal standard, see id. at 529, 533,
but neither party has suggested that it did, nor does the record indicate that
it did. We have never treated a lower court’s silence as to the details of its reasoning to mean that it applied the wrong legal standard. The concurrence also
524                                                          State v. Shields

B.    First-Degree Criminal Damage to Property, OCGA
      § 16-7-22(a)
         Defendant has two prior convictions for first-degree
criminal damage to property, OCGA § 16-7-22(a). The
sentencing court agreed with the state that that Georgia
offense corresponds to the Oregon offenses of unlawful use
of a weapon and/or recklessly endangering another person.
On appeal, defendant challenges that conclusion, arguing that the Georgia offense does not correspond to either
Oregon offense. In response, the state focuses on recklessly
endangering another person. We agree with the state that
the Georgia offense corresponds to that Oregon offense.
          A person commits the Oregon offense of recklessly
endangering another person “if the person recklessly engages
in conduct which creates a substantial risk of serious physical injury to another person.” ORS 163.195(1). “Recklessly”
means that the person “is aware of and consciously disregards a substantial and unjustifiable risk that the result
will occur or that the circumstance exists.” ORS 161.085(9).
The risk “must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard of
care that a reasonable person would observe in the situation.” Id.

suggests that it is unclear which Georgia convictions the sentencing court used
to place defendant in category A. See id. at 533. But we agree with the parties
that it is apparent from the court’s oral ruling and disposition which Georgia
convictions it used. We also agree with the parties that it is purely a legal question whether the elements of those Georgia offenses match the elements of the
cited Oregon offenses. Both parties have fully briefed those legal questions, and
it does not require any “divination” or “guesswork” to compare the legal elements
of two known statutes. See id. at 529. Nor is there any reason to exclude from
our consideration Oregon offenses raised at the sentencing hearing, see id. at
531-32, when defendant has made no distinction between the state’s arguments
in its sentencing memorandum and the state’s arguments at hearing. Finally,
as for the concurrence’s suggestion that the state failed to meet its evidentiary
burden, id. at 534, defendant has never made that argument—except as to the
battery conviction, which everyone agrees we need not reach (and which we do
not reach)—which alone would make it an improper basis for reversal. In any
event, defendant is correct not to have made it, because the record here contains
precisely what is necessary to identify the out-of-state offenses at issue and compare their elements to Oregon offenses. None of the cases cited in the concurring
opinion support a contrary conclusion. See id. at 529-30, 533 n 3. In sum, the
parties have presented developed arguments on purely legal issues on which the
sentencing court ruled, and there is nothing procedurally improper about our
addressing those arguments and resolving this case on the issues presented.
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          A person commits the Georgia offense of first-degree criminal damage to property if the person “knowingly and without authority interferes with any property
in a manner so as to endanger human life.” OCGA § 16-7-
22(a)(1).6 As to “the elements of criminal damage to property,” the Georgia Supreme Court has construed the phrase
“in a manner so as to endanger human life” as requiring
reckless endangerment. Carthern v. State, 272 Ga 378, 380,

 (2000) (analyzing the offense’s statutory elements and concluding that “in a manner so as to endanger human life” means “reckless endangerment rather than
actual endangerment”).
         The Georgia offense of first-degree criminal damage to property is narrower than the Oregon offense of
recklessly endangering another person, both in that the
Georgia offense requires knowing and unauthorized interference with property (whereas the Oregon offense contains
no such limitation) and in that the Georgia offense requires
the reckless endangerment of human life (whereas a substantial risk of serious physical injury satisfies the Oregon
statute). However, an out-of-state offense that is narrower
than an Oregon offense is still considered to correspond to
the Oregon offense. Guzman, 

 n 7. Applying element matching, we agree with the state that the Georgia
offense corresponds to an Oregon offense.
         Accordingly, the sentencing court did not err in
including defendant’s two prior convictions for the Georgia
offense of first-degree criminal damage to property in defendant’s criminal history score. That offense corresponds to
the Oregon offense of recklessly endangering another person, which is a person Class A misdemeanor. ORS 163.195(2)
(“Recklessly endangering another person is a Class A misdemeanor.”); OAR 213-003-0001(15) (including “ORS 163.195
    6
      An alternative way to commit the Georgia offense of first-degree criminal damage to property is to “knowingly and without authority and by force or
violence interfere[ ] with the operation of any system of public communication,
public transportation, sewerage drainage, water supply, gas, power, or other
public utility service or with any constituent property thereof.” OCGA § 16-7-
22(a)(1). However, the Georgia charging instrument and judgment establish that
defendant was charged and convicted of twice committing the offense in the way
described in the text, specifically by shooting a firearm in a parking lot and striking two vehicles.
526                                          State v. Shields

Recklessly Endanger Another” in the definition of “Person
Class A misdemeanors”). Defendant’s two prior convictions
count as one prior person felony conviction for sentencing
purposes. OAR 213-004-0008.
C. Aggravated Assault, OCGA § 16-5-21(a)
         Defendant has a prior conviction for the Georgia
offense of aggravated assault, OCGA § 16-5-21(a). The sentencing court agreed with the state that that Georgia offense
corresponds to the Oregon offenses of unlawful use of a
weapon, menacing, and/or first-degree assault. On appeal,
defendant challenges that conclusion, arguing that the
Georgia offense does not correspond to any of those Oregon
offenses. In response, the state essentially concedes that
point but argues that we should nonetheless affirm because
the Georgia offense corresponds to the Oregon offense of
attempted second-degree assault, ORS 163.175 and ORS
161.405.
        We agree with defendant that the Georgia offense
does not correspond to any of the three Oregon offenses on
which the sentencing court relied. Because the state does
not contend otherwise, we need not say more.
         As for the state’s new argument, the state essentially asks us to affirm on an alternative basis that was not
raised to the sentencing court. To do so, we would have to
both (1) conclude that the predicate conditions for considering such an argument are met, as described in Outdoor
Media Dimensions Inc. v. State of Oregon, 

, 

 (2001), and (2) choose to exercise our
discretion to affirm on a basis raised for the first time on
appeal. Under Outdoor Media Dimensions Inc., it “is a matter of prudential discretion and not compulsion” whether to
affirm on an alternative basis raised for the first time on
appeal. Biggerstaff v. Board of County Commissioners, 

, 

 (2010).
         Here, the state has neither addressed the Outdoor
Media Dimensions Inc. conditions, nor explained why we
should exercise our discretion. Under the circumstances, we
decline to consider the proffered alternative basis to affirm.
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 (2021)                            527

See State v. Jones, 

, 

(2017) (declining to consider an alternative basis to affirm
raised for the first time on appeal, where the respondent
failed to address the Outdoor Media Dimensions Inc. prerequisites); Trent v. Connor Enterprises, Inc., 

, 

 (2019) (declining to exercise our discretion under Outdoor Media Dimensions Inc., even assuming that the predicate conditions were met, in part because
the respondent did not ask us to exercise our discretion or
explain why it was appropriate).
        Accordingly, the sentencing court erred in including defendant’s prior conviction for the Georgia offense of
aggravated assault in his criminal history score.
D. Possession of a Firearm During the Commission of a
   Felony, OCGA § 16-11-106(b)
         Defendant has a prior conviction for the Georgia
offense of possession of a firearm during the commission of
a felony, OCGA § 16-11-106(b). The sentencing court agreed
with the state that that Georgia offense corresponds to the
Oregon offenses of unlawful use of a weapon, recklessly
endangering another person, and/or menacing. On appeal,
defendant challenges that conclusion, arguing that the
Georgia offense does not correspond to any Oregon offenses.
In response, the state focuses on the Oregon offense of
unlawful use of a weapon.
         A person commits the Georgia offense of possession
of a firearm during the commission of a felony if the person
has “on or within arm’s reach of his or her person a firearm
or a knife having a blade of three or more inches in length
during the commission of, or the attempt to commit” any one
of various specified crimes, including “any crime against or
involving the person of another.” OCGA § 16-11-106(b). Here,
according to the Georgia charging instrument and judgment,
defendant was convicted of having a firearm in his possession during the commission of an “assault.” Under Georgia
law, an “assault” may be committed either by attempting to
commit a violent injury to the person of another or by committing an act that places another in reasonable apprehension of
immediately receiving a violent injury. OCGA § 16-5-20(a).
528                                          State v. Shields

Defendant’s charging instrument and judgment do not specify which type of “assault” he committed.
        We agree with defendant that the Georgia offense
does not correspond to recklessly endangering another person or menacing. Because the state does not contend otherwise, we need not say more.
          As for unlawful use of a weapon, as relevant here,
a person commits that offense if the person “[a]ttempts to
use unlawfully against another, or carries or possesses with
intent to use unlawfully against another, any dangerous or
deadly weapon as defined in ORS 161.015.” ORS 166.220
(1)(a). Although there are similarities between the Georgia
offense of possession of a firearm during the commission of
a felony and the Oregon offense of unlawful use of a weapon,
we agree with defendant that the elements do not sufficiently match. Given Georgia’s definition of “assault,” defendant could have committed the Georgia offense at issue by
carrying a firearm while committing an act that placed
another person in reasonable apprehension of immediately
receiving a violent injury, even if defendant did not actually attempt to commit a violent injury to another person.
OCGA § 16-5-20(a). By contrast, to commit unlawful use of
a weapon, with a firearm, a person must “attempt[ ] to use”
the firearm against another person or “carr[y] or possess[ ]”
the firearm “with intent to use” it against another person.
ORS 166.220(1)(a).
        Accordingly, the sentencing court erred in including defendant’s prior conviction for the Georgia offense of
possession of a firearm during the commission of a felony in
his criminal history score.
E.    Battery, OCGA § 16-5-23.1
         The final Georgia conviction at issue is defendant’s
putative prior conviction for battery, OCGA § 16-5-23.1,
which the sentencing court concluded corresponds to the
Oregon offense of fourth-degree assault, ORS 163.160(1),
a person Class A misdemeanor, OAR 213-003-0001(15).
Defendant challenges the state’s proof of the existence of the
battery conviction, as well as argues that the elements of
the offenses do not match.
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         Given defendant’s two prior convictions for the
Georgia offense of first-degree criminal damage to property, which equate to one person felony, an additional person
Class A misdemeanor would not have any effect on defendant’s criminal history category. See OAR 213-004-0007.
Defendant concedes that the battery conviction “is essentially a moot issue on appeal.” The state agrees, as do we, so
we do not address the Georgia battery conviction.
                       CONCLUSION
        The sentencing court erred in its calculation of
defendant’s criminal history category. Specifically, it erred
when it counted defendant’s out-of-state convictions for
aggravated assault, OCGA § 16-5-21(a), and possession of
a firearm during the commission of a felony, OCGA § 16-11-
106(b), neither of which correspond to any of the Oregon
offenses identified by the state during sentencing.
         Reversed and remanded for resentencing; otherwise affirmed.
        TOOKEY, J., specially concurring.
         This case presents an important jurisprudential
issue as to how this court is to review the work of a lower
court. We are asked in this case to review whether the trial
court correctly matched the elements of defendant’s out-of-state convictions with the elements of an Oregon crime.
However, as I explain below, the trial court’s determination
does not reflect the close element-matching required under
OAR 213-004-0011. Moreover, I cannot even say with certainty which elements were being matched in the trial court:
that information does not appear anywhere in the record,
nor are the elements of the Georgia crimes for which defendant was convicted enumerated in the Georgia indictment
and judgment that the state submitted to the trial court.
        Yet the approach adopted by the majority essentially
requires this court to divine the elements of defendant’s
Georgia convictions that the trial court supposedly used
in determining his criminal history category—apparently
by impermissibly drawing inferences from a characterization of defendant’s conduct underlying his Georgia
530                                                       State v. Shields

convictions, rather than looking to the specific elements of
those crimes. Such guesswork not only distorts this court’s
role in the judicial review process, but it also runs counter
to our own case law. See State v. Golden, 

, 

 (1992) (reversing and remanding without conducting element-matching analysis where the state
impermissibly relied on a description of the defendant’s conduct and had not established the elements of defendant’s
out-of-state offense, nor had the state established that such
offense matched an Oregon offense); State v. Torres, 

, 

, adh’d to on recons, 

, 

 (2002) (remanding for resentencing without conducting element-matching analysis where the state
had not carried its burden, because it did not establish the
elements of defendant’s out-of-state offense nor that that
offense matched an Oregon offense).
         In short, I think our role in reviewing a trial court’s
decision—in this case, or in cases generally—should not
include an attempt to shoulder the state’s unmet evidentiary
burdens or to carry out the very work that was required of
the trial court in the first instance. To do so upsets the institutional equipoise between the work of this court and the
work of trial courts.
         For those reasons—and the reasons that follow—I
respectfully specially concur, and I would review this case
as set forth below and remand for resentencing.
                                     …
        The relevant facts are undisputed. Defendant was
convicted of first-degree burglary (Count 7) and first-degree
aggravated theft (Count 9) for burglarizing a state-licensed
marijuana farm.1 Before sentencing, the state filed a sentencing memorandum, attaching copies of defendant’s criminal records from Georgia case number SU-13-CR-147. Those
records showed that defendant had been convicted of the
following crimes in Georgia: (1) two counts of first-degree
    1
      As a result of that same burglary, defendant was also charged with first-degree assault, ORS 163.185 (Count 1); first-degree robbery, ORS 164.415 (Counts
2 and 3); second-degree robbery, ORS 164.405 (Count 4); second-degree assault,
ORS 163.175 (Counts 5 and 6); and third-degree assault, ORS 163.165 (Count 8).
The jury acquitted defendant of Counts 1 to 6 and 8.
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criminal damage to property, (2) one count of aggravated
assault, (3) one count of possession of a firearm during the
commission of a felony, and (4) one count of possession of a
firearm by a first offender probationer.2
         In its sentencing memorandum, the state opined
that “Oregon does not have an exact corollary to Criminal
Damage in the First Degree,” but asserted that “the charge
corresponds to Unlawful Use of a Weapon,” and, in a footnote, briefly remarked that “[t]he charge also corresponds
to Recklessly Endangering Another Person.” The state
also asserted in its sentencing memorandum that “[defendant’s] aggravated assault charge is equivalent to one or
more Oregon person felonies, including Assault in the First
Degree and/or Unlawful Use of a Weapon.” The state’s sentencing memorandum did not mention Oregon’s crime of
menacing, nor did the state argue that defendant’s Georgia
convictions for possession of a firearm corresponded with
any Oregon offense.
        Defendant also filed a sentencing memorandum,
arguing that the state had “failed to prove that any of the
Georgia convictions have any correlation to Oregon crimes.”
         At the sentencing hearing, the state asserted that
defendant’s Georgia conviction for possession of a firearm
by a first offender probationer “is unlawful use of a weapon,”
noting that “[u]nder Oregon law, unlawful use of a weapon
is pretty much any carrying [of] a firearm. I don’t have the
statute directly in front of me, but I think it falls under
the elements of unlawful use of a weapon.” The state then
explained that its memorandum “had … just a brief footnote regarding … some of the charges and [the state]
said the charges also correspond to recklessly endangering
    2
      The state’s sentencing memorandum also enumerated defendant’s Georgia
convictions for two counts of possession of marijuana with intent to distribute,
one count of possession and use of drug-related objects, and one count of battery.
However, in its sentencing memorandum, the state did not contend that defendant’s Georgia drug convictions correspond to any Oregon crimes, nor did the
state contend at sentencing that those crimes would affect defendant’s criminal
history category. Furthermore, the record does not show that the trial court’s
determination of defendant’s criminal history category involved defendant’s
Georgia drug convictions. Additionally, both parties acknowledge that defendant’s Georgia battery conviction is not germane to our analysis. Consequently, I
would not address defendant’s Georgia battery or drug convictions.
532                                             State v. Shields

another person. And [the state] think[s] they would also correspond to the charge of menacing.”
        After hearing arguments, the sentencing court
explained its decision:
      “To me, the … argument is kind of academic on …
   whether it’s an 8A or an 8B under the sentencing guidelines grid, looking at all of those [Georgia] offenses that
   were mentioned ….
      “I believe that they do constitute at least person misdemeanors and that they would constitute either shooting
   recklessly, endangering, or menacing.
      “…
      “I believe that there’s three person felonies for sure
   there …. …
      “So at this point, I’m going to sentence you as an 8A.”
         On appeal, defendant argues that “defendant’s prior
Georgia offenses, correctly compared … to current Oregon
crimes, do not suffice to place defendant in criminal history
category A.” The state responds that “the court correctly calculated defendant’s criminal history score because some of
the defendant’s Georgia convictions qualify as person felonies or Class A person misdemeanors under Oregon law.”
         We review a trial court’s classification of prior convictions for criminal history purposes for errors of law. ORS
138.105(7), (8)(c)(A); State v. Provencio, 

,

 (1998) (citing former ORS 138.222(4)(b) (1997),
repealed by Or Laws 2017, ch 529, § 26).
        A prior out-of-state conviction may be counted
toward an offender’s criminal history category “if the elements of the offense would have constituted an offense under
Oregon law,” OAR 213-004-0011(3), which the state must
prove by a preponderance of the evidence, ORS 137.079(5)(c);
Torres, 

. That conviction-counting
scheme requires “close element matching.” State v. Carlton,

, 

 (2017) (referring to text of OAR
213-004-0011, among other examples, and observing that,
“when the legislature and the Criminal Justice Commission
Cite as 

 (2021)                                                533

intend to create a conviction-counting scheme that requires
close element matching, they use a variety of words,” such
as “the elements would constitute”). “[C]lose element matching requires a[n out-of-state] offense to have ‘elements that
are the same as or nearly the same as the elements of ’ the
Oregon crime to which it is compared.” State v. Guzman, 

, 

 (2019) (emphasis omitted) (quoting
Carlton, 

). The state may use an accusatory
instrument or judgment to “show the elements of defendant’s
[out-of-state] conviction,” Golden, 

, but the
state may not use the defendant’s conduct underlying that
out-of-state conviction, see 

 (“Had the drafters [of the sentencing guidelines] intended conduct to be considered, they
could have drafted a rule that was not limited only to consideration of the elements of an offense.”).3

        In this case, I would conclude that the trial court
erred when it counted defendant’s Georgia convictions to
make its criminal history determination. The way that the
trial court made its criminal history determination was
opaque and does not reflect the close element-matching
required under OAR 213-004-0011. I cannot discern from
the record which Georgia convictions the trial court relied
on to make that determination, much less why it thought
that the elements closely matched the elements of any
Oregon offenses. Indeed, I highlight the fact that the state

    3
      The state cites State v. Yarbor, 

, 

,
rev den, 

 (1995), for the proposition that, if another state’s statute
“could be violated without necessarily violating the Oregon statute,” then “the
state must establish that a defendant’s out-of-state conviction does in fact match
the elements of the Oregon offense by reference to the facts alleged in the accusatory instrument and confirmed in the judgment.” In Yarbor we said, “We agree
with the state that comparing the factual elements of the offense alleged in the
indictment with Oregon statutes was not tantamount to relitigating the facts
underlying the conviction,” though we also noted that, “if it was error to consider
the factual elements, that error was harmless.” Id. at 364-65.
    Our decision in Yarbor does not help the state, because—as I conclude in
this concurrence—the state did not demonstrate how defendant’s criminal
record shows that his Georgia convictions had elements that are the same as or
nearly the same as the elements of the Oregon crime to which it was compared.
Cf. Golden, 

 (noting that, “to establish the elements of the
conviction, the state presented only a characterization in the PSI of the facts of
the Pennsylvania case” and then concluding that this “characterization could not
prove which of the multiple and alternative elements of the Pennsylvania statute
that defendant violated” (emphases added)).
534                                          State v. Shields

acknowledged at oral argument that “the [trial] court didn’t
really … elaborate or walk through the elements or anything like that.”
         To the extent that the trial court based its criminal
history determination on the evidence and arguments presented by the state, that evidence and argument also does not
indicate which Georgia convictions the trial court relied on
to make its determination or why the trial court thought the
elements closely matched the elements of an Oregon offense.
Although the state did produce records of defendant’s prior
Georgia convictions, it did not provide arguments—either in
its sentencing memorandum or at the sentencing hearing—
that articulated how those records show that the elements
of those Georgia convictions are the same as or nearly the
same as the elements of an Oregon crime.
         In sum, given the trial court’s ruling and the evidence and argument presented by the state, the close element matching required by OAR 213-004-0011 was not
undertaken in the trial court. I would therefore conclude
that the trial court erred when it counted defendant’s
Georgia convictions to determine defendant’s criminal history category. Because defendant’s sentence for Count 7 was
based, in part, on that criminal history category, I would
reverse and remand for resentencing.
          For the foregoing reason, I respectfully specially
concur.