State v. Cid

No. 142               February 28, 2024                  231

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                       EMANUEL CID,
                     aka Emmanuel Cid,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR03884; A178968

   Oscar Garcia, Judge.
   Submitted January 24, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant. Emanual Cid filed the supplemental briefs pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
   AOYAGI, P. J.
   Affirmed.
232                                                              State v. Cid

           AOYAGI, P. J.
         Defendant was convicted of a total of nine sex
crimes against two children. This is his second appeal, after
remand for resentencing. See State v. Cid, 

,

 (2021). Defendant raises four assignments of
error and three supplemental pro se assignments of error.
In his first assignment of error and first and second supplemental pro se assignments of error, defendant argues that,
as to Counts 1 and 2 and Counts 5 through 9, the trial court
should have sentenced him under ORS 137.707, instead of
ORS 137.700, because he was a minor when he committed
those offenses. In his second, third, and fourth assignments
of error and third supplemental pro se assignment of error,
defendant argues that the trial court erred in failing to
merge the guilty findings on three pairs of charges. For the
following reasons, we affirm.
               SENTENCING UNDER ORS 137.700
         When defendant was 24 years old, he was charged
with sexual offenses against two child victims, some of which
occurred when defendant was 16 years old and some of which
occurred when defendant was 20 years old.1 Defendant
pleaded guilty or no contest to most of the charges, and the
remainder were dismissed. As a result, defendant was convicted of two counts of first-degree sodomy, ORS 163.405
(Counts 1 and 2); two counts of first-degree unlawful sexual penetration, ORS 163.411 (Counts 5 and 6); two counts
of first-degree rape, ORS 163.375 (Counts 7 and 8); first-degree sexual abuse, ORS 163.427 (Count 9); second-degree
rape, ORS 163.365 (Count 10); and second-degree sodomy,
ORS 163.395 (Count 11). All of those crimes are Measure
11 offenses.2 The conduct underlying Counts 1 and 2 and
Counts 5 to 9 occurred when defendant was 16 years old. The

    1
      The indictment alleged that defendant was “at least 18 years of age” at the
time of all of the charged offenses, but it is undisputed that defendant was actually 16 years old at the time of the offenses charged in Counts 1 through 9, and
that fact is reflected in the amended judgment. The parties agree that we should
rely on defendant’s actual age.
    2
      The offenses listed in ORS 137.700(2) and ORS 137.707(4) are commonly
described as Measure 11 offenses, based on the 1994 ballot measure that resulted
in the original enactment of ORS 137.700 to 137.707. State v. Acker, 

, 150 n 3, 

 (2001), rev den, 

 (2002).
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conduct underlying Counts 10 and 11 occurred when defendant was 20 years old. Counts 1 to 8 involved one victim,
and Counts 9 to 11 involved a different victim. Defendant
was sentenced under ORS 137.700 and received an aggregate prison sentence of 138 months.
          As to Counts 1 and 2 and Counts 5 through 9, defendant contends that, because he was a minor when he committed those offenses, the trial court should have sentenced him
under ORS 137.707, rather than ORS 137.700. ORS 137.700
states the mandatory minimum sentences for Measure 11
offenses and allows no eligibility for sentence reduction for
any reason whatsoever. ORS 137.707 is the parallel statute
for juvenile offenders aged 15 years or older3 who are waived
into adult court. It states the same mandatory minimum
sentences for Measure 11 offenses, and similarly allows no
eligibility for sentence reduction—with one crucial exception, which is that offenders sentenced under ORS 137.707
are eligible for a second-look hearing and potential conditional release under ORS 420A.203 and ORS 420A.206:
       “(1) When a person waived under ORS 419C.349(1)(a)
   is convicted of an offense listed in subsection (4) of this section, the court shall impose at least the presumptive term
   of imprisonment provided for the offense in subsection (4) of
   this section. The court may impose a greater presumptive
   term if otherwise permitted by law, but may not impose a
   lesser term. The person is not, during the service of the
   term of imprisonment, eligible for release on post-prison
   supervision or any form of temporary leave from custody.
   The person is not eligible for any reduction in the minimum
   sentence for any reason under ORS 421.121 or any other
   provision of law. The person is eligible for a hearing and
   conditional release under ORS 420A.203 and 420A.206.”
ORS 137.707(1) (emphases added); see also generally ORS
420A.203 (listing all categories of persons eligible for second-look hearings, including persons who were under 18 years of
age at the time of the offense and were sentenced to a term
of imprisonment of at least 24 months under ORS 137.707).

    3
      Children aged 14 years or younger are not subject to Measure 11 sentencing. ORS 137.709 (“ORS 137.700 and 137.707 do not apply to a person who is under
15 years of age at the time the person commits a crime listed in ORS 137.700 or
137.707.”).
234                                              State v. Cid

         It is that exception that causes defendant to want to
be sentenced under ORS 137.707, instead of ORS 137.700. A
second-look hearing provides juvenile offenders the opportunity to serve a much shorter sentence if they demonstrate
that they are rehabilitated and otherwise meet the requirements for conditional release. See ORS 420A.203(1)(b) (providing for a second-look hearing when an eligible offender
has “served one-half of the sentence imposed or when a person described in [ORS 420A.203(a)(B)] attains 24 years and
six months of age”); ORS 420A.203(4)(a)(B) (at the conclusion of the second-look hearing, the court shall order conditional release under ORS 420A.206 if the court finds that
the offender has been rehabilitated and reformed; is not a
safety threat to the victim, the victim’s family or the community; and will comply with the conditions of release); ORS
420A.206 (provisions regarding conditional release).
         As a preliminary matter, we agree with the parties that the trial court’s stated reason for not applying ORS
137.707 was incorrect. The court reasoned that ORS 137.707
did not apply to defendant based on the date that he committed the offenses. However, it is the original sentencing date
that controls, not the date of the offenses. Because defendant was originally sentenced on February 12, 2020, the
second-look eligibility provision in ORS 137.707 would apply
to him, if ORS 137.707 itself applies to him. See Or Laws
2019, ch 634, § 32 (the SB 1008 amendments to ORS 137.707
apply “to sentences imposed on or after January 1, 2020”);
Or Laws 2019, ch 685, § 4 (the SB 1008 amendments to ORS
137.707 do not apply “to persons who were originally sentenced before January 1, 2020, and who are subsequently
resentenced on or after January 1, 2020”).
         We therefore next address whether ORS 137.707
applies to defendant, a purely legal issue that was argued
in the trial court and is properly before us as an alternative
basis to affirm. See Sherertz v. Brownstein Rask, 

, 

 (2021), rev den, 

 (2022) (discussing when and how alternative bases to affirm may be
considered on appeal). This appeal raises a question of statutory construction, specifically whether a person who commits
a Measure 11 crime as a juvenile, reaches the age of majority,
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and then is charged in adult court should, if convicted, be
sentenced as an adult under ORS 137.700 or as a juvenile
offender under ORS 137.707. Defendant argues that “[t]o
effectuate the clear legislative intent to focus on the rehabilitative potential of youth offenders, the second-look provision
of [ORS 137.707] should be interpreted to apply to all persons
who committed their offenses when they were a youth, regardless of when they are ultimately charged.” The state counters
that the statutory text forecloses that interpretation.
         Because the disputed portion of ORS 137.707 was
enacted by the legislature,4 we examine the disputed provision’s text and context, as well as any helpful legislative
history of which we are aware, with the aim of ascertaining
the intent of the legislature. State v. Gaines, 

, 171-
73, 

 (2009). Text and context “must be given
primary weight in the analysis,” as only the text “receives
the consideration and approval of a majority of the members
of the legislature.” 

.
         Here, the text is unequivocal. ORS 137.707(1) applies
only “[w]hen a person waived under ORS 419C.349(1)(a)”
is convicted of a Measure 11 offense. ORS 419C.349 is the
statute providing for waiver of youths into adult court. See
ORS 419C.349(2) (allowing the juvenile court to “waive the
youth to a circuit, justice or municipal court of competent
jurisdiction” if the stated requirements for waiver are met).
ORS 419C.349(1)(a), the specific provision cited in ORS
137.707(1), addresses youths alleged to have committed acts
that would qualify as Measure 11 offenses. It provides for a
     4
       In 2019, the legislature passed Senate Bill (SB) 1008, a comprehensive
juvenile reform bill that “made substantial changes to the prosecution and sentencing of juvenile offenders.” Marteeny v. Brown, 

, 

, rev den, 

 (2022). Among other things, SB 1008 created a procedure
for juveniles aged 15, 16, or 17 years old who commit Measure 11 offenses to be
waived into adult court, whereas they were previously prosecuted in adult court
automatically, and expanded eligibility for second-look hearings to include juveniles waived into adult court on Measure 11 offenses. Compare Or Laws 2019,
ch 634, § 5 (creating the procedure now codified in ORS 419C.349(1)(a) for waiver
into adult court, applicable “in a case in which a petition has been filed alleging
that a youth has committed an act when the youth was 15, 16 or 17 years of
age,” and providing for eligibility for a second-look hearing for youths waived
into adult court, as now codified in ORS 137.707), with Or Laws 1995, ch 422,
§ 49 (requiring that when a person commits a Measure 11 crime and “is 15, 16,
or 17 years of age, at the time the offense is committed, … the person shall be
prosecuted as an adult in criminal court”).
236                                                                 State v. Cid

waiver hearing on the state’s request when “a petition has
been filed alleging that a youth has committed an act when
the youth was 15, 16 or 17 years of age that, if committed by
an adult, would constitute aggravated murder or an offense
listed in ORS 137.707[.]” ORS 419C.349(1)(a).
          Defendant was not “waived under ORS 419C.349
(1)(a).” ORS 137.707(1). Defendant was 24 years old when he
was charged. Consequently, he was not a “youth” for whom a
delinquency “petition” was filed in juvenile court alleging acts
that “would” be crimes if committed by an adult. Rather, he
was an adult for whom an indictment was returned, resulting
in his being charged in circuit court with actual crimes. See
State v. Pike, 

, 

 (2001), rev den,

 (2002) (“As a general rule, if a person is over 18
when he or she is charged with a criminal offense, that person will be tried as an adult,” even if the person was under
the age of 18 when they committed the charged acts.). Indeed,
as defendant acknowledges, given his age when charged, even
if the state had filed a petition in juvenile court, the juvenile
court would have lacked jurisdiction. ORS 419C.005(1).5
         If the legislature wanted the second-look eligibility
provision in ORS 137.707(1) to apply to anyone other than
youths waived into adult court on Measure 11 offenses,
then it presumably would have used broader language than
“waived under ORS 419C.349(1)(a)” when it added second-look eligibility to ORS 137.707(1) in 2019. The text strongly
supports the state’s position that defendant was properly
sentenced under ORS 137.700, rather than ORS 137.707.
         Nothing in the statutory context or legislative history of which we are aware sheds any additional light on
the construction of ORS 137.707 or persuades us that the
legislature affirmatively intended ORS 137.707(1) to apply
to adults who committed Measure 11 offenses as youths but

    5
      See ORS 419C.005(1) (“The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and who has
committed an act that is a violation, or that if done by an adult would constitute
a violation, of a law or ordinance of the United States or a state, county or city.”);
ORS 419C.094 (“Except as otherwise provided in ORS 419C.103(3) and (4), the
jurisdiction of the juvenile court of the county in which a youth is taken into custody under ORS 419C.080 and 419C.088 shall attach from the time the youth is
taken into custody.”).
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were not charged until reaching adulthood. In any event,
where the text of a statute “is truly capable of only one
meaning,” we must give “no weight … to legislative history
that suggests—or even confirms—that legislators intended
something different.” Gaines, 

. Legislative history may be used to confirm or illuminate the meaning of
plain text, or to demonstrate a latent ambiguity in seemingly plain text, but not to contradict plain text. 

.
         There are, of course, policy arguments to be made
for treating all juvenile offenders the same, regardless of
when the state initiates legal action. The circumstances of an
offense, delayed victim reporting, delayed police investigation, or prosecutorial charging decisions are all factors that
may lead to a juvenile offender not being charged until after
they reach adulthood, at which point they will automatically
be charged in adult court. It is not immediately obvious why
young adults charged in adult court for offenses committed as youths are treated differently from youths waived
into adult court based on their sophistication and maturity
and the other waiver factors described in ORS 419C.349(2).
However, such policy decisions are squarely in the province
of the legislature, not the courts. “In the construction of a
statute, the office of the judge is simply to ascertain and
declare what is, in terms or in substance, contained therein,
not to insert what has been omitted, or to omit what has
been inserted[.]” ORS 174.010. Defendant’s arguments are
better directed to the legislature in this instance.
         In sum, we conclude that the trial court did not err
in sentencing defendant under ORS 137.700, instead of ORS
137.707. Although defendant committed the acts charged
in Counts 1 and 2 and Counts 5 through 9 when he was
16 years old, he was not charged until he was an adult.
Consequently, he went directly into adult court, rather than
being waived into adult court under ORS 419C.349(1)(a). It
follows that ORS 137.707(1) did not apply to him at sentencing, as it applies only to juvenile offenders who are “waived
under ORS 419C.349(1)(a).”6
     6
       Our text discussion has focused on defendant’s first assignment of error. In his
first and second pro se assignments of error, defendant argues that the trial court
violated Article I, section 16, of the Oregon Constitution and the Eighth Amendment
to the United States Constitution by “removing defendant (a 16-year-old-juvenile at
238                                                             State v. Cid

                                 MERGER
         Defendant next contends that the trial court erred
in failing to merge its guilty findings on three pairs of
charges involving the same offense against the same victim.
Specifically, he argues that, after accepting his no-contest
plea, the court should have entered a single conviction for
first-degree sodomy based on Counts 1 and 2; a single conviction for first-degree unlawful sexual penetration based
on Counts 5 and 6; and a single conviction for first-degree
rape based on Counts 7 and 8. We review merger issues for
errors of law. State v. Moore, 

, 

, rev den, 

 (2022) (“We review the trial court’s
ruling on whether to merge the guilty verdicts for legal error
and are bound by the trial court’s factual findings if there is
constitutionally sufficient evidence in the record to support
them.”).
         Under ORS 161.067(3), repeated violations of the
same statutory provision against the same victim are separately punishable only if separated “by a sufficient pause in
the defendant’s criminal conduct to afford the defendant an
opportunity to renounce the criminal intent.” As the party
asserting that defendant’s conduct in each count was separately punishable under ORS 161.067(3), it was the state’s
burden to prove that each violation constituted a separate
criminal episode, State v. Martin, 

, 

, rev den, 

 (2022) (“The state bears the
burden of proving by a preponderance of evidence that each
offense was a separate criminal episode.” (Internal quotation
marks omitted.)), or, if two violations occurred in the same
criminal episode, that they were separated by a sufficient
pause to avoid merger, State v. Barton, 

,

 (2020) (“The state, as the party asserting that
defendant’s conduct is separately punishable for purposes
of ORS 161.067(3), bears the burden of adducing legally sufficient evidence of the requisite sufficient pause.” (Internal
quotation marks and ellipses omitted.)).

the time of the offense) from juvenile Court without conducting a waiver hearing
and sentencing under adult statutes (ORS 137.700).” Defendant’s constitutional
arguments rely on the inaccurate premise that he was “removed” to adult court, as
well as being unpreserved. We therefore reject those arguments.
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         Here, defendant was charged in Count 1 with committing first-degree sodomy “on or about January 3, 2010.”
He was charged in Count 2 with committing first-degree
sodomy “[a]s a separate act and transaction,” “on or about
January 3, 2010.” He was charged in Count 5 with committing first-degree unlawful sexual penetration “[a]s a separate act and transaction,” “on or about January 3, 2010.”
He was charged in Count 6 with committing first-degree
unlawful sexual penetration “[a]s a separate act and transaction,” “on or about January 3, 2010.” He was charged in
Count 7 with committing first-degree rape “[a]s a separate
act and transaction,” “on or about January 3, 2010.” He was
charged in Count 8 with committing first-degree rape “[a]s a
separate act and transaction” “on or about January 3, 2010.”
        Defendant contends that the “separate act and
transaction” language in the indictment was insufficient to
establish a sufficient pause between violations of the same
statutory provision for purposes of the anti-merger statute.
The state maintains that the court properly entered separate convictions on each count. We agree with the state.
         The indictment alleged that defendant violated
three different statutory provisions in six “separate act[s]
and transaction[s].” Critically, in pleading no contest to
those charges without qualification, defendant assented to
the broadest construction of the charges and his pleas. State
v. Slagle, 

, 

, rev den, 

 (2019) (“Because defendant pleaded guilty without
qualifying his pleas, he assented to the broader construction [of the charging instrument].”); Hibbard v. Board of
Parole, 

, 

 (1996), vac’d on other
grounds, 

, 

 (1998) (by pleading no
contest without qualification, the petitioner “assented to the
broadest construction of his pleas”).
         The principle of the “broadest construction” has been
applied in various scenarios. For example, when a defendant
pleads guilty or no contest to multiple crimes, each of which
is alleged to have occurred during the same “on or between”
date range, or within overlapping date ranges, the court
may treat each crime as having been committed on a different date for purposes of the anti-merger statute. State v.
240                                               State v. Cid

White, 

, 

 (2016), rev den,

 (2017) (holding that merger was not required
where the defendant pleaded guilty to five counts of identity
theft, which were alleged to have occurred “within an overlapping range of dates,” because “the sentencing court could
find for purposes of merger that the incidents of identity
theft comprising the five counts occurred on dates separate
from each other and, therefore, that each count was separated by a sufficient pause”); State v. Ostrom, 

, 

 (2013) (similar); Hibbard, 

 (similar).
          Slagle provides another example of the principle’s
application. There, the defendant pleaded guilty to 10 counts
of first-degree encouraging child sexual abuse. 

. In each count, he was charged with possessing
a “visual recording of sexually explicit conduct involving a
child.” 

 (internal quotation marks omitted). The
defendant argued that merger was required because the
charging instrument did not specify whether each count
involved the same child or a different child. 

.
We rejected that argument, stating, “Because defendant
pleaded guilty without qualifying his pleas, he assented to
the broader construction that he possessed 10 visual recordings of different children.” 

. It followed that “the
trial court could enter 10 separate convictions” under the
anti-merger statute. Id.; see ORS 161.067(2) (providing for
separate convictions when violations of the same statutory
provision involve different victims).
          In this case, we agree with the state that, under
the broadest construction of the indictment and defendant’s
plea, the trial court did not err in entering six separate convictions on Counts 1, 2, 5, 6, 7, and 8. For present purposes,
we need not resolve the parties’ disagreement as to whether
“on or about January 3, 2010” should be treated as a date
range akin to those in Hibbard, Ostrom, and White, such
that it would be proper to treat the violations as occurring
on separate dates on that basis alone. Rather, in this case,
it is the “separate act and transaction” language that is dispositive. Although two separate “acts” may or may not be
separated by a sufficient pause to avoid merger, the broader
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 (2024)                            241

construction of the indictment language is that they were
so separated. Moreover, a separate “transaction” may be
broadly construed to refer to a separate criminal episode
altogether. By entering an unqualified no-contest plea,
defendant assented to the broader construction of the “separate act and transaction” language in the indictment.
        Therefore, the trial court did not err in declining to
merge, respectively, the guilty findings on Counts 1 and 2,
Counts 5 and 6, and Counts 7 and 8.
        Affirmed.