State v. Messer

                                       803

 Submitted December 3, 2021; remanded for resentencing, otherwise affirmed
                            February 24, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              RHONDA COLLEEN JEAN MESSER,
                     Defendant-Appellant.
                 Lincoln County Circuit Court
                     19CR69483; A174040
                                   

    Defendant appeals her judgment of conviction for two counts of criminally
negligent homicide, ORS 163.145, and one count of possession of methamphetamine, ORS 475.894. She assigns error to the trial court’s decision to deny her
eligibility for earned time and alternative sentencing programs under ORS
137.750. Specifically, defendant contends that the fact that, before her arrest, she
did not apologize to both victims’ families after being rebuffed by the first family
member she contacted, did not amount to a “substantial and compelling” reason
to deny her eligibility under ORS 137.750(1). The state concedes that denying
defendant eligibility for failing to apologize to the families before her conviction
was error. Held: Defendant’s failure to apologize to the family of one of the victims was not sufficiently exceptional to amount to a “substantial and compelling”
reason to deny her eligibility for earned time and alternative sentencing programs under ORS 137.750(1). As the record was unclear whether the trial court
found that any of the other factors it considered were independently sufficient to
deny defendant eligibility, resentencing was required.
    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 brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    KAMINS, J.
    Remanded for resentencing; otherwise affirmed.
804                                          State v. Messer

        KAMINS, J.
          Defendant appeals a judgment of conviction for two
counts of criminally negligent homicide, ORS 163.145, and
one count of possession of methamphetamine, ORS 475.894.
She assigns error to the trial court’s decision to deny her
eligibility for earned time and alternative sentencing programs under ORS 137.750. In particular, she points to the
trial court’s determination that “substantial and compelling reasons” supported the denial. Specifically, defendant
contends that the fact that, before her arrest, she did not
apologize to both victims’ families after being rebuffed by
the first family member she contacted, did not amount to
a substantial and compelling reason. ORS 137.750(1). The
state concedes that denying defendant eligibility for failing to apologize to the families before her conviction was
error. We accept the state’s concession, and remand for
resentencing.
         We review a sentencing court’s decision to deny a
defendant sentencing reduction programs for legal error,
and its factual findings for any evidence in the record to
support them. State v. Hikes, 

, 

, rev den, 

 (2014). The trial court concluded
that defendant’s failure to apologize to the families of the
victims before she was arrested demonstrated a “staggering” lack of remorse.
         Under ORS 137.750(1), a sentencing court “shall”
allow a defendant to be considered for sentence reduction
or release programs unless the court finds “substantial and
compelling reasons” to order otherwise. Although we have
not interpreted “substantial and compelling” for purposes
of ORS 137.750(1), we find our analysis of the same phrase
in the context of factors used to impose upward departure
sentences under OAR 213-008-0002 instructive, although
not determinative. See Hikes, 

 (observing that “[t]here is no definition of ‘substantial and compelling reasons’ in the context of a court’s decision under ORS
137.750” and that the departure factors are not “expressly
applicable”); see also State v. Ramirez, 

,

 (2021) (reviewing case law construing comparable language in a closely related statute). There we have said
Cite as 

 (2022)                              805

the circumstances must be “sufficiently exceptional” to show
that the presumptive sentence “would fail to accomplish the
purposes of the sentencing guidelines.” State v. Agee, 

, 

 (2008).

         That interpretation comports with the plain meaning of the phrase “substantial and compelling.” “In the
absence of any evidence to the contrary, we assume that the
legislature intended to give those words their ‘plain, natural, and ordinary meaning.’ ” State v. Ziska/Garza, 

, 

 (2014) (quoting PGE v. Bureau of
Labor and Industries, 

, 

 (1993)).
To determine that ordinary meaning, we turn first to definitions from dictionaries that were in use at the time the
statute was enacted. Id. at 804-05. The relevant definitions
of “substantial” include “being of moment: important, essential.” Webster’s Third New Int’l Dictionary 2280 (unabridged
ed 2002). The definition of “compelling” most apt for this
context is “tending to convince or convert by or as if by
forcefulness of evidence.” Id. at 463. These definitions are
consistent with how we interpret “substantial and compelling” in the departure context to mean sufficiently “exceptional.” See, e.g., State v. Davilla, 

, 

 (2016) (explaining that a trial court’s explanation of
substantial and compelling reasons must demonstrate why
the circumstances are “so exceptional that imposition of the
presumptive sentence would not accomplish the purposes of
the guidelines”).

          In these circumstances, defendant’s failure to apologize to the family of one of the victims, particularly after
being angrily rebuffed by a member of the first victim’s family, is not sufficiently exceptional to amount to a substantial
and compelling reason to deny her eligibility. Indeed, it is an
open question whether the failure to admit to a crime prior
to arrest can be used against a defendant in the subsequent
criminal prosecution. See State v. Schiller-Munneman, 

, 

 (2016) (acknowledging that no
case “expressly addresses whether, absent custody or compelling circumstances, a defendant’s invocation of the right
to silence may be introduced at trial as substantive evidence
of the defendant’s guilt”).
806                                          State v. Messer

         As we cannot say on this record whether the trial
court found any of the other factors it considered to be
independently sufficient to deny eligibility, resentencing is
required. See State v. Enemesio, 

, 

, rev den, 

 (2010) (resentencing required
if any of the departure factors were incorrectly applied and
the trial court did not indicate whether it was relying on the
factors it found singly or in combination).
        Remanded for resentencing; otherwise affirmed.