State v. Mueller

84                      April 17, 2024                  No. 240

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  RYAN BLAKE MUELLER,
                     Defendant-Appellant.
                 Lincoln County Circuit Court
                     22CR19975; A179821

     Amanda R. Benjamin, Judge.
     Submitted March 14, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
     KAMINS, J.
     Affirmed.
Cite as 

 (2024)                                                     85

           KAMINS, J.
         Defendant appeals a judgment of conviction challenging his sentence following a guilty plea to two counts of
aggravated identity theft, ORS 165.803, one count of computer crime, ORS 164.377(2), two counts of first-degree criminal possession of a forged instrument, ORS 165.022, two
counts of possession of a false law enforcement identification
card, ORS 162.369, and one count of unauthorized use of a
vehicle, ORS 164.135. The trial court sentenced defendant
to a total prison term of 60 months.
        On appeal, in a single assignment of error, defendant claims that the trial court erred in determining that he
was ineligible for alternative incarceration programs (AIPs)
under ORS 137.751(1).1 The trial court ruled that defendant
did not meet the eligibility requirements, because it could
not “make [a] finding” that defendant’s crimes were “not
part of an organized criminal operation” pursuant to ORS
137.751(1)(e). For the reasons explained below, we affirm.
         As an initial matter, we assume without deciding
that defendant preserved the issue that he raises on appeal.
We review for legal error a trial court’s determination
regarding eligibility for AIPs. Cf. State v. Hikes, 

, 

, rev den, 

 (2014) (reviewing for legal error the trial court’s determination that the
defendant was not eligible for sentence modification programs under ORS 137.750). AIPs “are prison programs that
the Department of Corrections (DOC) offers to select offenders.” State v. Cross, 

, 206 n 1, 

,
rev den, 

 (2014). They are “highly structured” programs that include “intensive interventions, rigorous personal responsibility and accountability, and service to the
community.” OAR 291-062-0110(2).

    1
      In referring to the trial court’s determination regarding eligibility for AIPs,
we refer to the trial court’s decision under ORS 137.751 as to whether defendant
was eligible for early release under ORS 421.508(4) following the successful completion of an AIP. Ultimately, the Department of Corrections determines which
offenders can participate in AIPs. ORS 137.751 governs whether an offender who
completes such programs is eligible for early release as a result of program completion. State v. Cross, 

, 206 n 1, 

, rev den, 

(2014).
86                                           State v. Mueller

          ORS 421.508 addresses eligibility for participation
in such programs. When an offender successfully completes
a program, then the DOC may release the offender on postprison supervision if certain conditions are satisfied. ORS
421.508(4). One such condition is that the trial court has
entered an order finding, among other things, that “[t]he
crime was not part of an organized criminal operation.” ORS
137.751(1)(e). When a defendant asks the court to determine
eligibility under ORS 137.751(1), “the burden is on the defendant to show that the specified eligibility requirements are
met.” Cross, 

.
         On appeal, defendant argues that the trial court
erred in declining to order that he was eligible for programs
because there was no evidence that he was part of an organized criminal operation. Having reviewed the factual basis
for defendant’s plea, and the facts discussed at sentencing,
we are not persuaded that the trial court erred when it
ruled that defendant did not meet his burden of demonstrating that his crimes were not part of an organized criminal
operation.
          The factual basis for defendant’s plea and the facts
discussed at sentencing reflect that the police obtained a
search warrant after they received a tip that two fugitives
with warrants were staying at a casino in Lincoln City. When
police executed a search warrant on the hotel room, police
found at least 20 identification cards, some of which were
fictitious and some of which belonged to real people. There
were about 52 different names on the pieces of identification.
Defendant had checked into the hotel under a false name.
Defendant had a “player’s club card” for the casino under
that false name, he had gambled approximately $270,000,
and he paid for the hotel room using reward points from
the card. In the room, police found forged checks, two lawenforcement identification cards, a laptop, printer, scanner, card reader, a laminator, and plastic material for the
laminator.
        When police searched defendant’s car, they found
counterfeit checks, check stock for printing checks, credit
cards, computers, printers, digital cameras, and printed
license plates. There were 22 endorsed checks and 64
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 (2024)                                                  87

“non-endorsed” checks in names that matched the identification cards that were found.
         When police searched defendant’s van, which defendant had rented from U-Haul using a fake identification in
Arizona, and which was described as a “mobile counterfeiting office,” police found other equipment used to create fake
identifications and fraudulent checks. The van had been
“cleaned on the outside” of U-Haul stickers or identification,
and the van’s license plates and VIN plate had been removed
and replaced.
        Considering those circumstances, we are not persuaded that the trial court erred when it concluded that it
could not find that defendant’s crimes were not part of an
organized criminal operation.
          In arguing otherwise, defendant relies on State
v. Rodriguez, 

, 

 (1993), which
addressed aggravating factors that can justify an upward
departure from a presumptive sentence. One such aggravating factor is whether the crime was part of an “organized
criminal operation,” which, based on commentary defining
that term contained in the Oregon Sentencing Guidelines
Implementation Manual 131 (1989), we construed as requiring “an entity that has some structure or identity apart
from the individual participants.” Rodriguez, 

 (emphasis in original).2 Defendant argues that the
phrase “organized criminal operation” should be construed
in the same way in ORS 137.751(1)(e). However, defendant
fails to explain why our interpretation of the same phrase
when used in an administrative rule addressing aggravating sentencing factors should apply here. See State v. Brand,

, 

 (2013) (“[I]t is not this
court’s function to speculate as to what a party’s argument
might be. Nor is it our proper function to make or develop a
party’s argument when that party has not endeavored to do
so itself.” (Citations and internal quotation marks omitted;
    2
       Rodriguez cites administrative rules that are no longer in effect. Under
OAR 213-008-0002, which has been in effect since January 1, 2020, whether the
crime “was part of an organized criminal operation” is listed as an aggravating
factor. Under ORS 137.671(1), a court may impose a sentence outside the presumptive sentence if it finds that there are substantial and compelling reasons to
do so.
88                                           State v. Mueller

brackets in original.)). And, in any event, by offering nothing to show that the crimes were not part of an organized
crime operation, defendant failed to satisfy his burden to
show that he was AIP eligible.
        Thus, we conclude that the trial court did not err
when it determined that defendant failed to meet his burden to show that he met the eligibility requirements in
ORS 137.751(1). Considering the nature and extent of the
equipment and items found, as well as the sophistication of
defendant’s operation, there was no error in the trial court’s
decision not to enter the order described in ORS 137.751(1).
We therefore affirm.
        Affirmed.