State v. Igo

460                 October 16, 2024             No. 728

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
           CHRISTIAN MICHAEL RAY IGO,
                 Defendant-Appellant.
             Lincoln County Circuit Court
                 20CR68415; A177343

  Sheryl Bachart, Judge.
  Submitted September 26, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Joyce, Judge.
  LAGESEN, C. J.
  Reversed and remanded for resentencing.
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 (2024)                               461

         LAGESEN, C. J.
         Defendant appeals a judgment of conviction for,
among other things, two counts of first-degree rape (Counts
13 and 15). In one assignment of error, he raises two distinct
challenges to the trial court’s imposition of a 25-year sentence under ORS 137.690(a) on Count 15. First, he contends
that, under State v. Thornsberry, 

, 

(2021), and the Sixth Amendment to the United States
Constitution, the trial court plainly erred when it imposed
the sentence without having a jury make the predicate “separate criminal episode” finding required by ORS 137.690(c).
Second, defendant argues that the sentence is unconstitutionally disproportionate, in violation of Article I, section 16,
of the Oregon Constitution, and the Eighth Amendment
to the United States Constitution. We agree that under
Thornsberry, the trial court plainly erred when it imposed
the 25-year sentence under ORS 137.690 based on judicial
factfinding. Accordingly, we reverse and remand for resentencing for that reason, and do not reach defendant’s proportionality argument.
          ORS 137.690 mandates a 25-year sentence for any
person convicted of a major felony sex crime, including first-degree rape, if the person has one or more prior convictions
for a major felony sex crime. A conviction “in the same sentencing proceeding” counts as a prior conviction for purposes
of the statute “if the conviction is for a separate criminal
episode as defined in ORS 131.505.” ORS 137.690(c). Under
the Sixth Amendment, the “separate criminal episode” finding must be made by a jury. Thornsberry, 

; Perkins v. Fhuere, 

, 

 (2024); cf. Erlinger v. United States, ___ US ___, 

, 1852, 

 (2024) (holding that the Sixth
Amendment requires a jury finding as to whether offenses
occurred on separate occasions as a prerequisite to imposition of enhanced sentence under the Armed Career Criminal
Act (ACCA)).
        Here, in sentencing defendant on Count 15, the
judge, not the jury, found that the predicate major felony sex
crime—the rape underlying Count 13—occurred in a separate criminal episode. Consequently, as the state properly
462                                                                State v. Igo

concedes, the trial court plainly erred under Thornsberry.1
The state nonetheless argues that, under the circumstances
of this case, the error is harmless and, therefore, not grounds
for reversal. The state points to the fact that the rapes
occurred several hours apart on the same night to argue
that, under those circumstances, it is highly likely that a
jury would have accepted the state’s argument and found
that Counts 13 and 15 involved separate criminal episodes.2
        We disagree. Even though the rapes were several
hours apart, that was the case in Thornsberry as well,
and we concluded that the error there was not harmless.
Thornsberry, 

. Moreover, on this record,
reasonable factfinders could disagree as to whether Count 13
and Count 15 arose from separate criminal episodes; in
their briefs to us, defendant and the state each have presented potentially persuasive arguments as to why the
question should be resolved one way or another. Under those
circumstances, had the issue been submitted to the jury in
accordance with the Sixth Amendment, there is some likelihood that the jury would not have been convinced beyond
a reasonable doubt that the offenses arose from separate
criminal episodes. The error was not harmless.3
     1
       Thornsberry was decided the day after sentencing in this case. The state
properly acknowledges that defendant is entitled to the benefit of that decision
under these circumstances. See State v. Jury, 

, 

 (2002),
rev den, 

 (2003) (stating that, on appeal, we apply the current law, not
the law as it existed at the time of the appealed decision).
     2
       As framed in its brief, the state’s argument implies that the jury would have
to find that the two offenses occurred in separate criminal episodes. For example,
the state asserts that “[o]n these facts, unlike in Thornsberry, no rational juror
could have found that the two rapes defendant committed against the victim in a
different manner and several hours apart, after a night of sleeping, were ‘continuous and uninterrupted.’ ” That implication flips the burden of proof and misidentifies what the state must prove to impose a sentence under ORS 137.690. A jury
need not make a finding that offenses arose from the same episode. Rather, where
the state seeks to impose the sentence under ORS 137.690 based on a predicate
offense involved in the same sentencing proceeding, the state must prove beyond
a reasonable doubt that the predicate offense arose from a separate criminal
episode. If the jury is not convinced beyond a reasonable doubt that the offenses
arose from separate criminal episodes, then the sentence cannot be imposed. See,
e.g., Erlinger, ___ US ___, 144 S Ct at 1852 (explaining that to impose enhanced
sentence under ACCA, a jury is required to find that predicate offenses occurred
on separate occasions “unanimously and beyond a reasonable doubt.”).
     3
       The parties dispute whether the federal constitutional harmless standard
applies in this context, in addition to the state constitutional harmless error
standard. Because we conclude that the error is not harmless under the state
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         Finally, we exercise our discretion to correct the
error because it is grave, and the ends of justice require us
to correct it. Defendant was deprived of his constitutional
right to a jury trial on the question of whether Counts 13
and 15 arose from separate criminal episodes and, as a
result, he has been subjected to an enhanced sentence longer than what would be permitted in the absence of that
constitutional violation. See, e.g., Perkins, 

(“Absent the necessary jury finding the trial court could not
have sentenced [the defendant] under ORS 137.690.”).4
           Reversed and remanded for resentencing.




constitutional analysis, and because we exercise our discretion to correct that
error, we need not address that dispute.
    4
      As in Perkins, we express no opinion as to whether it would be permissible
on remand for the state “to empanel a sentencing jury to correct the problem.”
Perkins, 

.