371 P.3d 505
Or. Ct. App.2016Background
- Defendant was convicted by jury of two counts of first-degree criminal mistreatment and two counts of first-degree aggravated theft based on misappropriation of an elderly victim’s funds while caring for her.
- Victim’s liquid assets declined from ~$102,000 to ~$29,000 during the relevant period; the court found $65,580.20 in economic loss and ordered restitution after sentencing.
- Trial court sentenced defendant to concurrent and consecutive prison terms (including 32 months on Counts 3 and 4, with Count 4 consecutive to Count 3).
- After sentencing, the court held a restitution hearing and entered a supplemental judgment specifying the $65,580.20 restitution amount.
- Defendant appealed, arguing (1) the Sixth Amendment required a jury to determine the facts supporting the restitution amount (relying on Southern Union and Apprendi/Blakely principles) and (2) the court erred by failing to apply the “shift-to-I” rule when calculating the criminal history score for the consecutive sentence on Count 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sixth Amendment requires jury findings for restitution amount | State: McMillan controls; restitution does not increase statutory maximum so judge may determine amount | Ortega: Southern Union/Apprendi/Blakely require jury to find facts increasing punishment (restitution) beyond a reasonable doubt | Court: Adopts McMillan; Southern Union does not abrogate McMillan; restitution amount may be judicially determined because it does not increase statutory maximum |
| Whether court erred by not applying “shift-to-I” when imposing consecutive sentence on Count 4 | State conceded error | Ortega: Court used true history score instead of "I" though counts arose from same episode and same victim | Court: Accepts concession; error, and case remanded for resentencing |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (Sixth Amendment requires jury finding of any fact that increases statutory maximum)
- Blakely v. Washington, 542 U.S. 296 (statutory maximum defined as what judge may impose based solely on jury verdict or defendant admissions)
- Southern Union Co. v. United States, 567 U.S. 343 (Apprendi rule applies to criminal fines)
- Oregon v. Ice, 555 U.S. 160 (discusses historic jury role and sentencing allocation between judge and jury)
- State v. McMillan, 199 Or. App. 398 (Oregon court: restitution under ORS 137.106 does not implicate Apprendi)
- State v. Ramos, 267 Or. App. 164 (reaffirms that restitution determinations cannot exceed jury’s verdict under Oregon scheme)