State v. BilesState v. Biles
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- Howell
The 1977 Legislative Assembly extensively revised Oregon’s statutory scheme relating to sentencing of criminal defendants and appellate review of sentences.
1
The question presented on this appeal is whether or not the statutory requirements of a presen-tence report
2
and a statement of reasons for the sentence
3
are mandatory.
Pursuant to a negotiated plea to a charge of unauthorized use of a motor vehicle, the defendant entered a plea of no contest. Also pursuant to the negotiated plea, and the recommendation of the district attorney, the court sentenced the defendant to the custody of the Corrections Division for one year, to be served concurrently with the balance of a sentence for burglary on which defendant’s parole had recently been revoked. At the time of the plea and sentencing, the defendant and his counsel both stated that there was no need for a presentence report.
Defendant then appealed to the Court of Appeals, assigning as error the trial court’s failure to state the reasons for the sentence imposed. The Court of Appeals remanded the case for resentencing, holding that because “the requirements of
I
Before turning to the merits of this particular case, it is helpful to consider generally this state’s statutory scheme governing sentencing of criminal defendants. Prior to 1977,
“* * * A defendant who has pleaded guilty or no contest may take an appeal from a judgment on conviction where it imposes a sentence that is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense. * * * On such appeal, the appellate court shall only consider the question whether an excessive, cruel or unusual punishment has been imposed. If in the judgment of the appellate court the punishment imposed is excessive, unusual or cruel, it shall direct the court from which the appeal is taken to impose the punishment which should be administered.”
In
State v. Dinkel,
34 Or App 375, 579 P2d 245 (1978), the Court of Appeals discussed the effect of the
1977 amendment in the context of an appeal of a lengthy sentence for kidnapping, burglary, robbery, and unauthorized use of a motor vehicle. The court in
Dinkel
held that the 1977 amendment expanded the scope of appellate review of sentences, requiring it to take into account “both the nature and background of the offender and the facts and circumstances of the offense” in determining whether or not a sentence is “excessive.” The court went on to hold, however, that it would not review sentencing de novo, and that it could perceive only two situations in which it would reverse a sentence under
“The first would arise if a trial court failed to comply with its statutory duty underORS 144.790(1) by not considering a presentence report, or violatedORS 137.120(2) by failing to state on the record its reasons for the sentence imposed. The second circumstance would arise only when we find that a sentence imposed by a trial court is, as other jurisdictions with similar sentence review statutes have stated, ‘clearly mistaken,’ Bordewick v. State, 569 P2d 184, 187 (Alas 1977), or a ‘clear abuse of discretion,’ State v. Waldrip, 111 Ariz 516, 533 P2d 1151 (1975).” 34 Or App at 387-88.
We agree
II
In its brief in this court, the state argues for the first time that the Court of Appeals lacked jurisdiction to consider this appeal because
It is true that
The next question is whether the trial court erred in failing to order a presentence report and in failing to state on the record the reasons for the sentence it imposed. Both
This does not end our inquiry, however, because the record in the present case shows that defendant expressly waived a presentence report at the time sentence was imposed. We have held in other contexts that an accused may waive rights even if those rights are granted in obligatory language. See, e.g., State v. Roach, 271 Or 764, 534 P2d 508 (1975) (waiver of right to not be prosecuted twice for same offense); State v. Butchek, 121 Or 141, 253 P 367, 254 P 805 (1927) (waiver of right to counsel). Whether or not a defendant’s waiver dispenses with the need to comply with statutory requirements, therefore, depends not on the presence or absence of obligatory language in the statute but, rather, on whether the legislative policy behind the statutes is solely protection of the defendant, or whether the legislature intended to protect interests beyond those of the defendant. Put another way, the question is whether the statutory mandate can fairly be characterized as a right of the defendant’s. 4
We think the reason a defendant’s waiver does not eliminate the trial court’s duty to comply with
Whether or not this court, as a matter of policy, believes the statutory requirements are necessary to ensure responsible sentencing is irrelevant. As Chief Judge Schwab observed in his opinion below, “We are * * * bound by the legislative mandates except when we can say that the application of the literal words of the statute would produce an absurd result. This is not such a case.” 34 Or App at 533 (citation and footnote omitted.)
In its brief in the Court of Appeals, the state conceded that the statutory requirements might have been enacted for purposes other than simply protecting the defendant, but suggested “the very nature of the sentencing process normally accomplishes such purposes * * Whatever the merits of that argument, we think the legislature, in enacting the above-cited statutes, decided in favor of additional safeguards beyond those provided by “the very nature of the sentencing process.” If those safeguards prove to be excessive in light of the time and expense involved, the change must come from the legislature, not from the court.
For these same reasons, we reject the State’s argument that reversal is not required in this case because the reason for the sentence is apparent from the record. The State would have us hold, in essence, that when a defendant negotiates a plea, and sentence is imposed pursuant to the negotiations, the defendant “gets what he asks for,” and no other reason for the sentence need be given. Our reading of the relevant
statutes, however, indicates that the legislature intended the trial court to make an independent determination of an appropriate sentence, regardless of what agreements are reached pursuant to plea negotiations.
The state’s reliance on
State ex rel Juv. Dept. v. Cole, supra,
is misplaced. We there held that an order of the juvenile court remanding the defendant to adult court was not reversible for failure to make written findings where it was apparent from the record that the judge went
Ill
For the reasons stated above, we hold that the trial court’s failure to order a presentence report and to state on the record the reasons for the sentence imposed requires reversal of the judgment in this case and a remand for resentencing. Since the case must be remanded, it is appropriate that we provide some guidance to the trial court with respect to what constitutes an adequate statement of reasons for the sentence.
OHS 138.050 allows a defendant to appeal a sentence that is “excessive in light of the nature and background of the offender or the facts and circumstances of the offense.” It is apparent from this that in determining an appropriate sentence, the trial court is expected to consider both the particular offender and the particular offense.
In pronouncing judgment after a plea of guilty or no contest or a finding of guilt, the trial judge will have the benefit of the facts relating to the crime, and whether the crime is serious or not. He will know the past record, if any, of the defendant, and the possibilities of rehabilitation, or the necessity of isolating the defendant from society. We do not believe that the trial judge should be required to articulate explicitly every reason for the sentence imposed. The nature of the reasons stated for the sentence will necessarily vary from case to case, and we do not intend to imply that trial courts must follow a particular formula in order to comply with the requirements of
As previously discussed, the trial judge in the present case did not comply with the statute and indicate the reasons for the sentence, and the decision of the Court of Appeals remanding the case for resentencing must therefore be affirmed.
Affirmed.
Notes
1977 Oregon Laws ch 372, §§ 1-18.
” Whenever any person is convicted of a felony, the Corrections Division shall furnish a presentence report to the sentencing court. If a presentence report has previously been prepared by the Corrections Division with respect to the defendant, the division shall furnish a copy of that report, and a supplement bringing it up to date, to the sentencing court. The reports shall contain recommendations with respect to the sentencing of the defendant, including incarceration or alternatives to incarceration whenever the Corrections Division officer preparing the report believes such an alternative to be appropriate. All recommendations shall be for the information of the court and shall not limit the sentencing authority of the court.” (Emphasis added.)
“Whenever any person is convicted of a felony, the court shall, unless it imposes other than a sentence to serve a term of imprisonment in the custody of the Corrections Division, sentence such person to imprisonment for an indeterminate period of time, but stating and fixing in the judgment and sentence a maximum term for the crime, which shall not exceed the maximum term of imprisonment provided by law therefor; and judgment shall be given accordingly. Such a sentence shall be known as an indeterminate sentence. The court shall state on the record the reasons for the sentence imposed. ” (Emphasis added.)
See People v. Brown, 393 Mich 174, 224 NW2d 38, 44 (1974); State v. Richardson, 117 NJ Super 502, 285 A2d 231, 233 (1971); People v. Bentley, 78 Misc 2d 578, 359 NYS2d 391, 393 (1974).
The presentence report and statement of reasons also provide the appellate court with an adequate record on review. See State v. Dinkel, 34 Or App 375, 579 P2d 245 (1978).