482 P.3d 784
Or. Ct. App.2021Background
- Defendant Derrick Shields was convicted of first-degree burglary and sentenced to 45 months' imprisonment plus three years' post-prison supervision; he appeals only the burglary sentence calculation.
- At sentencing the State relied on five prior Georgia adult convictions to calculate criminal history and placed Shields in the highest guidelines category (A).
- Georgia convictions at issue: two counts of first-degree criminal damage to property (OCGA § 16-7-22(a)), one count of aggravated assault (OCGA § 16-5-21(a)), one count of possession of a firearm during commission of a felony (OCGA § 16-11-106(b)), and one battery conviction (treated as moot on appeal).
- Oregon rule OAR 213-004-0011(1) requires that an out-of-state conviction be counted only if its elements correspond to an Oregon felony or Class A misdemeanor; the State bears the burden of proof.
- The court held that the two Georgia criminal-damage convictions correspond to Oregon recklessly endangering another person (ORS 163.195) and could be counted (two person misdemeanors count as one person felony), but the aggravated-assault and firearm-possession convictions do not correspond to the Oregon offenses identified and were improperly counted.
- Result: the judgment is reversed and remanded for resentencing to correct the criminal-history calculation; the remainder of the judgment is affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Georgia first-degree criminal damage (OCGA § 16-7-22(a)) corresponds to an Oregon person offense | Counts as unlawful use of a weapon or recklessly endangering another person | Does not correspond to Oregon offenses | Corresponds to recklessly endangering (OREGON), so inclusion was proper (two convictions count as one person felony) |
| Whether Georgia aggravated assault (OCGA § 16-5-21(a)) corresponds to Oregon person offenses | Corresponds to first-degree assault, unlawful use of a weapon, or menacing | Does not correspond | Does not correspond to the Oregon offenses relied on; inclusion was error |
| Whether Georgia possession of a firearm during commission of a felony (OCGA § 16-11-106(b)) corresponds to Oregon person offenses | Corresponds to unlawful use of a weapon, recklessly endangering, or menacing | Does not correspond | Does not correspond (elements differ regarding intent/attempt); inclusion was error |
| Net effect on criminal-history category and sentence | Counting all five priors places Shields in Category A and supports 45-month term | Excluding non-matching priors would lower category and affect sentence | Two criminal-damage convictions properly counted (as one person felony); two others improperly counted — remand for resentencing to recalculate category |
Key Cases Cited
- State v. Tapp, 110 Or App 1 (out-of-state convictions counted only if elements correspond to an Oregon felony or Class A misdemeanor)
- State v. Guzman, 366 Or 18 (close element-matching requires out-of-state elements be the same as or nearly the same as Oregon elements)
- State v. Golden, 112 Or App 302 (state must prove which alternative means of violating a multi-method foreign statute defendant was convicted of; may not rely on conduct descriptions)
- State v. Provencio, 153 Or App 90 (if foreign statute is broader, state must show which statutory alternative was proven by accusatory instrument/judgment)
- State v. R-Robinson, 277 Or App 107 (element matching required before counting out-of-state convictions)
- State v. Torres, 182 Or App 156 (state bears burden to prove prior convictions and their correspondence)
- State v. Carlton, 361 Or 29 (textual discussion endorsing the need for close element matching)
- State v. Higgins, 165 Or App 442 (discussed in context of injury definition for assault in assessing element correspondence)