*1 Fеbruary 5, 2007; en banc record and briefs December resubmitted Submitted on 19, 2008 resentencing; March otherwise affirmed reversed and remanded OREGON, STATE OF Plaintiff-Respondent,
v. BANKS, ROBERT LEE Defendant-Appellant. Circuit Court
Washington County C030755CR; A123839
Robert L. Banks filed the brief se. Myers, Mary Hardy Attorney General, Williams, H. Benjamin General, Hartman, and R. Assistant Solicitor Attorney respondent. General, filed the for brief Judge, and Brewer, Edmonds, Landau,
Before Chief Ortega, Armstrong, Schuman, Haselton, Wollheim, Judges. Rosenblum, Sercombe, HASELTON, J. dissenting.
Edmonds, J.,
595 HASELTON, J.
Defendant his convictions fol- appeals, challenging 164.415, trial ORS lowing first-degree robbery, 164.225, second-degree theft, first-degree burglary, ORS ORS those 164.045, reject ORS 163.190. We menacing, also challenges reject without discussion. We without discus- sion is argument facially defendant’s 137.700 We write defendant’s only unconstitutional. address trial unpreserved challenge that the court erred 60-month consecutive sentence his conviction for first- degree rule burglary, violation of the announced v. Washington, 296, US S Ct L Ed 2531, 542 124 159 2d 403 (2004). follow, For the reasons that we affirmatively exercise Meadows, Inc., discretion under Ailes v. our Portland Or 382 n P2d 6, 823 to address and correct that Fults, also See State v. asserted error. 173 P3d v. Ramirez, 822 (2007); State 505, 173 P3d (both proper addressing application bearing considerations discretion). on positive exercise of Ailes Accordingly, we reverse and remand for but resentencing, otherwise affirm.
The circumstances are pertinent Defen- undisputed. dant accosted his former as she girlfriend got out car at her her, home and forced her objections, over to let him inside, inside. Once to leave, refused the prevented victim from leaving, then, a a taking knife from kitchen drawer, threatened her and demanded which money, she alia, inter him. gave The indictment alleged, that defendant had committed first-degree by unlawfully burglary entering in the the remaining house with intent to a crime commit therein, and first-degree by the victim robbery threatening with a knife so as to overcome her resistance commit- while ting theft. crimes, The convicted defendant of as those well as second-degree theft and menacing, acquitted but defendant of unlawful use weapon. of a On December roughly six before months 2003— the United States decided Supreme Court trial —the court sentence in imposed particular, this case. court sentence 90 months on the first-degree robbery pursuant a consecutive sen- 137.123, to ORS and, conviction first-degree burglary conviction.1 on the tence of 60 months explained imposition of the consеcutive The trial court as follows: sentence 9C, and in you’re in Grid Block burglary charge,
“[0]n the commitment to you up end with a 60-month grid block separate it’s And because Department of Corrections. clearly with you back to this location went conduct victim], I’m [the or cause harm to property intent to steal to the 90 consecutive to make those 60 months going months you finish the 90 serve that after you’ll months and robbery.” whether the trial comments, it is -unclear From those 137.123(2) rely purporting or on on ORS to was Defendant consecutive sentence. impo- objection the court’s raise constitutional did not a consecutive sentence. sition of although not raise he did contends
Defendant
challenge
present
court, the court’s
in the trial
his
as
nevertheless, reviewable
is,
sentence
of a consecutive
ORAP
the record.”
the face of
“error of law
5.45(1).
response
Fuerte-
invoke State v.
is to
The state’s sole
(2004),
den,
rev
P3d 773
170, 173, 100
Coria, challenge
impo-
Blakely-based
(unpreserved
16Or
“plain
as
not reviewable
was
of consecutive sentences
sition
error” because
legal point
indeed[,] it is
obvious;
is not
“the
quo-
original;
(emphases
reasonably
dispute”
internal
omitted)).
tation marks
(2007), cert
248,
The
remains whether we should affirma
tively exercise our discretion to consider and correct that
e.g., Jury,
(reiterating
See,
error.
Ailes,
the determination of whether a claim of error
requirements
“plain
merely
satisfies the
step
error” is
the first
“two-step process”).
in a
Factors that bear on our exer
following:
cise of discretion include the
competing
“[T]he
case;
parties;
interests ofthe
the nature ofthe
gravity
justice
рar-
error;
ofthe
the ends of
in the
case;
ticular
how the error
attention;
came to the court’s
policies
general
requiring
and whether the
behind the
rule
preservation of error have been served in the
in
case
way, i.e.,
another
whether
was,
the trial court
in someman-
presented
given
ner,
with both sides of the issue and
an
opportunity
to correct
error.”
Ailes,
In Ramirez, 343 513-14, Or at the court further indi- assessing “competing cated that, in par- interests of the ties,” resentencing a defendant’s interest is minimal if legitimate “there is departure no debate” about whether Similarly, sentence is wаrranted. the court concluded that justice” “the ends of would not be advanced when “the evi- dence 343 overwhelming.” on a factor is Id. In Fults, Or at the court listed several additional considera- including tions, “possibility [a] whether there was a strategic object [a] defendant made a choice not to sen- judicial system tence” avoiding and “the interest of the unnecessary repetitive sentencing proceedings.”
Consistently amplified by Ailes, as Ramirez affirmatively Fults, we exercise our discretion to con- sider and correct the trial court’s error in the con- following given secutive sentеnce for the First, reasons: timing highly unlikely case, this it is that defendant made “strategic forgo present objection choice” to his to the con- (noting secutive sentence. Fults, Accord 343 Or at “possibility strategic that defendant made a choice not to *5 598 against
object
oí
to the sentence” militates
exercise Ailes dis-
cretion).
in
That is
defendant was sentenced
so because
predicate
Blakely,
2003—six months before
the
for
December
pertaining
objection,
Thus, the
such an
issued.
circumstances
possible “strategic
qualitatively
waiver” here differ
from
to
arising
post-Blakely/pre-Iсe
in cases
in the
in
those
“window”
began
increasing frequency
criminal
with
which
to raise constitutional
defendants
challenges
judicial factfinding in
to
pursuant
imposing consecutive sentences
to ORS 137.123.
e.g.,
See,
Tanner,
State v.
210 Or
P3d 31
70, 150
(2007) (remanded,
rem’d,
554,
Fourth,
are unlike those
the circumstances here
procedural posture and evidence
Fults,
or
where the
Ramirez
unlikely
highly
it
that a remand would
such that was
were
any practical
and,
a remand would
thus,
make
merely
difference—
sentencing proceed-
“unnecessary repetitive
result
Specifically,
ings.”
Ramirez,
Fults,
Finally, respectfully, the dis- albeit we contrary. aspects reasoning the dissent Three sent’s specific response. warrant *6 suggestion, contrary it is dissent’s
First, any, “apparent left if additional facts are what, this record (Edmonds, jury.” App J., dis- 218 Or at 606 to found be grounds regardless purported senting). for of the That is so Specifically, imposition the deter- of consecutive sentences. given totality circumstances, whether, mination of multiple and unin- from the same continuous offenses “arise 137.123(2), terrupted whether the conduct,” ORS or course of “willingness requisite to commit acted with the 137.123(5)(a), or offense,” ORS more than one criminal causing greater requisite “risk of whether there was the injury qualitatively harm,” or ORS loss, or different 137.123(5)(b), offact. committed to the trier is matter of fact premise. Ice, See fundamental, irreducible That is Zee’s 264-67. 252-53, Or at contrary the dis-
Second, in a related sense—and (Edmonds, App assumption, apparent J., at 606 sent’s dissenting) jury rejected “all- defendant’s fact that the —the logically, respect guilt or-nothing” not would defense with necessarily, comрel the com- a determination much less requisites multiple crimes here satisfied mission of imposition in accordance with of consecutive sentences 137.123(5)(a) (b). 137.123(2) of multi- or Commission or ORS necessary, ple factual condition insufficient, crimes is a but sentences. for the of consecutive
Finally, suggests not that defendant has the dissent showing “how he or Ramirez of under Fults made a sufficient injustice” suffered an Or as a result ofthe trial court’s error. 218 App (Edmonds, dissenting). acknowledge J., We “injustice” regrettably amorphous is a term, or, even— perhaps, especially dispense justice. those who strive tо —for wrestling implications And, to sure, we will be with the years Fults and Ramirez in months and to come.2Fults and prescribe high Ramirez barrier, but not one that is insur- previously case, mountable. this for the reasons described, App see 218 Or at 597-99, there is a sufficient substantial prospect injustice if we do not correct the error to warrant the exercise ofAiles discretion. resentencing;
Reversed and remanded for otherwise affirmed. dissenting.
EDMONDS, J., again, pro- Once the court is to confront the visions of ORAP and determine whether the error appeal claimed for the first time on is error record, and, face оf the if is, it whether this court should exer- majority
cise its discretion to correct it. The concludes that proceeds the initial criteria under the rule are satisfied and resentencing. to exercise its discretion to remand for I dis- agree majority’s with the decision for the reasons that follow. majority’s perpetuates
The
decision
this court’s
jurisprudence
Jury,
in State v.
57 P3d 970
response
holdings Apprendi
Jersey,
v.New
*7
(2000),Blakely
466, 120
2348, 147
530 US
Washington,
S Ct
L Ed 2d 435
v.
296,
542 US
124 S Ct
L
2531, 159 Ed 2d 403
(2004),
Ice,
and State v.
343 Or 248, 170 P3d 1049
cert
(2008).
granted,_US_,
Apprendi,
128 CtS
In
prior
that,
Court held
other than the fact of a
conviction,
penalty
beyond
fact that increases the
for a crime
prescribed statutory maximum sentence must be submitted
jury
proved beyond
to a
and
a reasonable doubt. 530 US at
Blakely,
purposes
490. In
the Court held
of the Sixth
statutory
judge
Amendment, the
maximum sentence that a
may lawfully impose must be
on the
based
facts reflected in
jury
by
verdict or admitted
the defendant.
In Ice imposition sentencing sen- consecutive of to the time of the tences based findings. The trial factual on the court’s imposed objection consecutive the defendant’s overruled 137.123(5). findings under ORS on its own sentenсes based imposition Supreme of consecutive ruled that Court Our 137.123(5) principles implicated the sentences expressed Blakely, Apprendi the statute because in findings to whether required specific made as to be factual and uninter- continuous of the same arose out the offenses rupted sen- otherwise, the defendant’s conduct; course of concurrently required rather than were be tences consecutively. sentences view, the consecutive In the court’s rights because Amendment Sixth the defendant’s violated by findings necessary rather the trial court were madе by jury. than January 2004, in defendant was sentenced
Here,
Apprendi
and Ice.
decided,
was
but before
after
object
to his con-
at the time of
Defendant did not
ground
to have
that he was entitled
on the
secutive sentences
a
imposition
of
for the
the factors
determine
Jury,
for our decision
Were it not
consecutive sentences.
arguments
fail under ORAP
would
defendant’s
App 170,
Fuerte-Coria, 196 Or
because,
held in State v.
as we
(2005),
an
den,
rev
173,
reference to the law question had never We noted that the time of trial. by Oregon appellate fur- explicitly courts; we addressed been determining plain the law error based ther observed princi- operate appeal to subvert could as of the time comity trial courts. ples preservation error and *8 explained 185 Or at 138. Morever, we that such an approach incongruous could lead to in results which a trial “plain ruling could be reversed for error” when its com- ported compelled by with or was even the law itas existed at the time that the court ruled. Id. at 136-37. Nevertheless, we by applying two-step process plain concluded the plain error review, we could “ensure that review of error will exception, principles be the and not the rule” and that the preservation bypassed “only extraordinary would be in cir- majority’s cumstances.” Id. at 138-39. The decision in this departs pledge brings case from that new and inconsis- meaning plain tent to our exercise of error review. comparison
A between the record in this case and Jury why present the record in illustrates this case does not “extraordinary excep- the circumstances” that constitute “the regard tion to the rule” with to the exercise of our discretion 5.45(1). Jury, under ORAP On the record before inus it was apparent injustice that an obvious had occurred. The defen- appealed dant from controlled substance-related convictions. During the defendant’s in 1994, trial the trial court admitted police through evidence that the had obtained the use of a body they placed wire that had on an informant. Under the police case law it trial, as existed at the time of were not required authorizing to obtain a court order them to use a body opening appeal, wire. In his brief on the defendant argued for the first time that our case law to that effect was wrongly required decided and that a court order inwas fact by pending appeal abeyancе the statute. We held the defendant’s Supreme
a decision Court in other cases involving the same issue. Supreme held, Court as the defendant Jury police contended, that ORS 133.724 using body intercept
obtain a court order before wires to com- Fleetwood, munications. State v. 511, 515, 16 P3d 503 (2000); State v. Cleveland, 531, 534, 16 P3d (2000). After those decided, cases were the state filed its brief Jury, arguing preserve that the defendant had failed to apparent error at trial and that the error was not error determining face of the record. After that the error was now light Supreme on face of the record in rulings in cases, Court’s the other we turned to whether we Relying remedy the error. our discretion should exercise a nonexclusive guided our discre- in Ailes that list of criteria our discretion elected to exercise 6,1 at 382 n we tion, 312 Or *9 unique Jury of a circumstance: in because the error correct body objection evidence of the wire to the admission Had the in it would have been in the trial court raised been existing precedent. rejected Thus, properly case law had altered, even trial would not have been the outcome at justice light, preserved. ends of In that the issue been similarly by treating defendants situated all were served objections preserved. identically, had been or not the whether App at 140. presents from different circumstances This case Jury. the record does not demon- Here, those that existed any injustice explain does not strate —and defendant —how (1) explain provision what fact, In he does not even occurred. of ORS 137.123 is applicable the circumstances or is not what facts remain convictions; that led to his or light by jury. in the record deficiencies decided a those argument appeal, I decline to exer- on would and defendаnt’s may any have to correct error that cise our discretion respect sen- of consecutive occurred with fully explained more for that decision is tences. The basis below. robbery, first-degree charged with
Defendant was weapon, burglary, first-degree first-degree unlawful use of second-degree alleged menacing; the crimes were theft, and all of 1,2003. March In Count been committed on
to have committing robbery by, charged “in the defendant was course of * * * threaten[ing] committing property!,] theft of [the victim] physical and use of force the immediate that, Specifically, court instructed 5.45(1)], deciding applications [ORAP whether to “[I]n future ofthis rule apparent on the face of the an error of law exercise its discretion to consider competing record, may inter- among consider are: the the factors that a court error; case; gravity parties; of the the ends the nature of the ests of the attention; case; court’s and justice particular the error came to the in the how requiring preservation error policies general rule whether the behind was, i.e., way, trial court whether the have served in the case another been given opportu- manner, presented the issue and an with both sides of in some nity to correct the error.” (Citations omitted.)
[using] dangerous weapon, knife, to-wit: a with the intent of preventing overcoming taking and resistance to the property.” alleged Count 2 of the indictment that defendant burglary by “unlawfully committed the crime of and know- ingly entering] remaining] building in a that was a * * * dwelling with the intent to commit the crime of theft therein.” charges By
Trial on the occurred in November 2003. Apprendi time, had decided. trial, been At the state walking offered evidence as the victim was from her car parking apartment, acrоss a lot towards her defendant approached her and took her the arm. She informed defen- supposed dant that he was not to have contact with her apartment but, nonetheless, he led her to her her to let him inside her inside, residence. Once the victim attempted told leave, defendant to but he refused. The victim unplugged phone. 9-1-1, to call tried to flee but The victim *10 through way door, the front but he blocked her and made her sit down. Defendant then went into the kitchen again approached and retrieved a knife. He victim, stand- ing pillow, over her with the knife and a and demanded mоney. request, The victim refused his but defendant told comply. her that he would use the knife on her if she did not dumped purse The victim then the contents of her onto the money coffeetable. Defendant instructed her to take the out wallet, of her which he then stole. Defendant then the victim to drive him Portland, to downtown where he and parted company. the victim response evidence, to the state’s defendant testi-
fied that he no contact 1, 2003, with the victim on March .had and that all the about, events that the victim testified includ- ing threatening demanding money, her with a knife and did jury Thus, not occur. the issue beforе the was whether the victim had fabricated events of March 2003. The guilty charges, except charge found defendant of all of weapon. unlawful use of a convictions,
Before defense coun- regarding court, sel told the trial “We have the one incident multiple [the victim], time[,] don’t have we incidences and During pronounce- multiple its victims here.” have we don’t stated, Count the trial on ment of sentence * ** sepa- charge, burglary it’s because “Andthen on clearly you this location went back rate conduct the intent to [the property victim], cause harm to steal or going to the 90 months consecutive make those 60 I’m months, you you’ll the 90months after finish servethat and robbery.” objected, arguing trial court that “the Defense counsel burglary they robbery time, at the same occurred and the responded, [ts].” separate “I The trial court inciden weren’t disagree Defense I’ve said that.” I with that and know, but simply preserving responded, it for the rec- “And I’m counsel ord, Your Honor.” assignments appeal, two
On defendant advances (1) duty adequately its “The trial court violated error: develop new coun- from which to determine whether a record appellant requested [;]” new counsel after sel is warranted sen- court erred in consecutive and “The trial appeal, he did in the does not claim on as tences.” Defendant trial robbery burglary did not court, that the and offenses uninterrupted course arise from the same continuous dispute identify factual exists in conduct; nor does he what summary argument, regard.2 Rather, in his simply asserts that “[i]n case, consecutivesen- this the trial court presumptive sentences than the concurrent tences rather by flatly prohibited findings making of fact. This is resentencing.”
Blakely.Accordingly,appellant entitled to is argument portion defеndant invokes our brief, of his In the Blakely, Jury argues the court decision erred in conceding Though imposing consecutive sentences. *11 issue, he con- in Fuerte-Coria controls that our decision “wrongly decided and should that the decision was tends only how he offers as to The discussion overruled.”3 137.123(2) when a of consecutive sentences authorizes the ORS simultaneously from offenses that do not arise sentenced for criminal defendant is uninterrupted course of conduct. the same continuous decided, defendant does written before State v. Ice was Because his brief was rely on Ice. not
applies following to the facts of his case, is found in the con- clusory sentences: case,
“In this the trial court consecutivesen- tences on counts one and two. These two crimes occurred simultaneously against the same victim. Whatever facts by support found the court to the consecutivesentences on [sic] only by jury Blakely. counts could be found a findings, required impose Absent those the courtwas 137.123(4). concurrently. sentences such, As the trial court erred in consecutivesentences.” appears
Defendant to assume that the trial court found that the two crimes did not arise from a continuous and uninterrupted point purposes course for of ORS —a majority that, as the concedes, 218 Or at 595-96, is less than clear. If what purposes case, that is fact the then it is not clear jury
facts, record, on this are left for the to decide for 137.123(2). argument of ORS Defendant’s sole actually trial was that none the contact with the victim Essentially, nothing” type occurred. he offered an “all or jury necessarily rejected defense. The his view of the facts engaging when it convicted him of in the contact that he claimed never occurred. any,
It is not on this what, record if addi- by jury. jury tional facts are left to be found The decided by actually that the events testified to the victim occurred on they may explain 1, 2003, March as she said that did. That why, appeal, glosses subject on defendant over the of what issues of fact would be left for the Instead, remand. merely asserts that “whatever facts found * * * only by jury.” could be found In the absence of disputed question additional facts, whether defen- dant’s convictions arose from the same continuous and unin- terrupted essentially course of conduct was one of law for the trial court.
In a related vein, one of the Ailes factors we competing parties must consider is the interests of the regarding judicial economy. majority’s requires The decision sentencing hearing expense a new and the attendant delay public accompanies a remand to the trial court. Defendant, hand, on the other seeks “second bite at *12 apple” explaining the without first what facts he would sub- jury injustice mit to the or how he suffered an as a result of imposition the court’s of consecutive sentences. brings Supreme
That
us to the
Court’s recent deci-
sions in State v. Ramirez,
Wollheim, J., in this