Defendant appeals a judgment of conviction and sentence for two felony and two misdemeanor crimes. The sentence for one of the felonies — unlawful use of a weapon, ORS 166.220 — included a durational departure to a prison term of 36 months, even though the trial court originally had announced that it was going to impose a sentence on that charge of 18 months, without a durational departure. Dеfendant argues that the sentence imposed in the written judgment is invalid because he was not present when it was pronounced, that the court lacked the authority to modify the proposed sentence because he had already begun serving it, and that the record does not support the departure factors. We vacate defendant’s sentences and remand for resentencing.
A jury convicted dеfendant of four crimes — unlawful use of a weapon, forgery in the first degree (ORS 165.013), assault in the fourth degree (ORS 163.160), and menacing (ORS 163.190) — arising from his use of a switchblade knife to avoid a citizen’s arrest after attempting to cash a forged check at a supermarket. At a sentencing hearing in September 2001, the court made an oral statement announcing its intended sentences. The court said that it would dis-positionally depart uрward on the unlawful use of a weapon charge based on what the court found to be “persistent involvement by the defendant in carrying a knife and brandishing it when he feels threatened.” The result of that departure would be an 18-month prison sentence. On the forgery charge, the court said that it would dispositionally depart upward based on defendant’s admitted repeated acts of forgery and sentence defendant to 180 days in prison. The court said that it would make the sentence on the forgery count consecutive to the unlawful use of a weapon count. On the assault in the fourth degree and menacing charges — both misdemeanors — the court said that it would sentence defendant to 12 months for each count. The misdemeanor sentences would be served consecutively to each other and the felony sentences.
After the court announced its intentions, defendant’s counsel requested a continuance in order to submit a memorandum to the court on whether the court could impose the consecutive sentences that it intended to impose. The court continued the sentencing for 30 days to allow defendant to brief his objections to the sentence. The court also asked the state to “consider what other departure factors there might be that have been overlooked by the [c]ourt in this oral sentencing order” and to provide it with facts about charges against defendant in Nevada arising from a forgery incident there. The court closed the hearing by stating that it would “hold the final sentencing orders open because once I have signed the sentencing order, there will be a transport and this [cjourt would losе jurisdiction.”
After two continuances, the court heard sentencing arguments in December 2001. At
“THE COURT: The case is continued for one week for entry of an opinion and order on the sentence.
“[COUNSEL]: Judge, is that going to require an appearance in a week?
“THE COURT: No. That’s to give you-
“[COUNSEL]: I understand.
“THE COURT: -a week’s time.”
In March 2002, the court signed its opinion and order on sentencing. 1 In that document, the court imposed not only a dispositional departure on the unlawful use of a weapon count but also imposed a durational departure and sentenced defendant to 36 months in prison. The sentences on the other three counts remained largely the same as those announced at the September sentencing hearing, the only difference being that the forgery sentence was to be served consecutively in part and concurrently in part with the unlawful use of a weapon sentence. Defendant was not present when the court took those actions.
In April 2002, defendant filed written objections to the written sentencing order, arguing that it was invalid because it had not been rendered in defendant’s presence and it imposed a more severe sentence after defendant had raised lawful objections to an oral sentence. Over those objections, the court entered a judgment of conviction and sentence as determined in the March 2002 order.
On appeal, defendant makes three assignments of error. In his first assignment, he asserts that “[t]he court erred in modifying the original oral sentencing order and imposing a substantially different sentence without a hearing and without defеndant present, and when defendant was held in the custody of the county jail without bail.” To support that assignment, defendant makes two arguments. First, he asserts that the court’s written sentencing order and subsequent judgment violated his statutory and constitutional right to be present when judgment is given. Second, he argues that he began serving his sentence immediately after the September hearing, thereby depriving the court of the authority to modify it after that date.
Defendant’s second and third assignments of error are alternative arguments. First, he argues that, if we agree that the court erred by modifying the orally pronounced sentence, then we must consider whether the court erred in imposing an upward departure in that sentence. In the alternative, if we hold that the written sentence is valid, then we must consider whether the court erred in imposing an upward departure in that sentence. In both assignments, defendant’s argument reduces to an assertion that the court erred in finding that defendant was persistently involved in carrying a knife and brandishing it when he feels threatened. Because of our resolution of the first assignment of error in defendant’s favor, we need not address defendant’s second and third assignments of error.
Thus, we begin and end with defendant’s first assignment of error, reviewing for errors of law.
State v. DeCamp,
As we will discuss in more detail below, “[a] defendant has a statutory right to be present аt all stages of a trial, including sentencing * *
State v. Massie,
The brief colloquy between the court and defense counsel аt the close of the December 2001 sentencing hearing is insufficient to show that defendant intentionally relinquished his right to be present at sentencing. Defense counsel merely asked, “Judge, is that going to require an appearance in a week?” The most that can be said about the intent behind that inquiry is that defense counsel wanted to know whether the court was scheduling a hearing. Likewise, defense counsel’s silence on the matter after the court’s response cannot reasonably be construed as a waiver by defendant of his right to be present at sentencing. However they may be construed, defense counsel’s question and silence to the court’s response do not evince an intent to waive a known right.
Furthermore, under these circumstances, defendant did not fail to preserve the issue raised in his first assignment of error. Agаin, in that assignment, defendant argues that the trial court erred by imposing a longer sentence by written order and judgment than that proposed orally in September. Defendant was not aware that the court was contemplating a longer sentence until the court issued its March 2002 opinion and order imposing a durational departure on the conviction for unlawful use of a weapon. As we explained in
DeCamp,
“[a] party cannot be required to raise an objection contemporaneously with a trial court’s ruling or other action when the party was not on notice of the trial court’s intended action and had no opportunity to be present when the trial court acted.”
The right to be present at sentencing has both statutory and constitutional sources.
DeCamp,
As noted above, ORS 137.030 provides that a defendant who is convicted of a felony must be present when judgmеnt is given. Citing that statute, the Supreme Court has stated that “[jjudgment in a criminal case must be pronounced in open court.”
State v. Bonner,
Although defendant frames the question as whether the trial court cоuld modify the sentence pronounced in September, correctly understood, the trial court did not pronounce anything on that date. Instead, it proposed a sentence, i.e., a starting point.
The trial court’s statement of its intentions in September was followed immediately by defendant’s request to argue the
The cases on which the state relies do not persuade us otherwise. Those cases address the question of which judgment controls when the terms of a written judgment vary from those of oral statements made by the court on the record. The rule to be drawn from the cases is that a written order controls over oral statements made by a court.
State v. Swain/Goldsmith,
Thus, the rule derived from the cases that the state relies on does nоt resolve this case. The question is not whether the terms of the written judgment control defendant’s sentence; instead, it is the validity of that judgment. As we explain further below, the trial court retained the authority to modify the proposed sentence based on, as pertinent here, valid departure factors supported by the evidence. That is, it had the authority to change its mind about the appropriate sentenсe. However, to exercise that authority, it had to pronounce the sentence in open court in defendant’s presence. By failing to do that, the court violated defendant’s right to be present when the court pronounced its judgment.
Having concluded that the court erred by failing to pronounce judgment in defendant’s presence, we must address whether the error was harmless. The state argues that defendаnt cannot “identify any prejudice that resulted in his case or that might potentially result in a hypothetical case.” We disagree.
We recognized in
DeCamp
that, when a court imposes a longer sentence than that imposed in the defendant’s presence, unless the defendant is present, he has “no opportunity
Here, as
id.DeCamp,
defendant argues that, because he was already serving an executed sentence, the court lacked authority to modify his sentence. As discussed below, defendant’s argument on that point does not withstand scrutiny. Nonetheless, the mere fact that a defendant’s statements regarding his sentence are likely not to affect the sentencing court does not itself render the defendant’s absence harmless error.
DeCamp,
Having concluded that the court’s error was not harmless, as in DeCamp, “[t]he remaining question is one of remedy.” Id. If defendant’s argument that the September proposed sentence has been executed is correct, then we should remand with instructions to the trial court to enter a judgment reflecting the September proposed sentence. See id. at 245. On the other hand, if that sentence was not executed, then the court retained authority to modify it, and we must remand for resentencing. See id.
Defendant’s argument on this point is that, because he would receive credit toward his prison sentence for the time that he served in the county jail during the sentencing proceeding, he in effect began serving his sentence after the September hearing. Defendant is wrong. Although a сourt may not modify a sentence that has been “executed,” a prison sentence is not executed until the defendant is delivered to
the custody of the Department of Corrections (DOC).
DeCamp,
Defendant relies on
State v. Perry,
“when defendant was incarcerated in the county jail before the issuance of the trial court’s written judgment that made the prison sentence consecutive, the sentences were concurrent and both were ‘put into effect’ when he began his term in the county jail. Therefore, the trial court lаcked authority to subsequently modify the prison sentence.”
Id. at 23.
Whereas the sentences imposed on the defendant in
Perry
were initially concurrent, here, defendant’s sentences were always intended to be consecutive. As we explained in
State v. Lebeck,
“[i]n the context of consecutive prison sentences, * * * the determination of when the various sentences are deemed executed,for purposes of determining a trial court’s authority to modify the sentence, is entirely dеpendent on when a defendant is delivered to the physical and legal custody of the proper authority, rather than whether a defendant is receiving credit for time in custody on a particular sentence. * * * That is so because the time at which a prison sentence is deemed executed is statutorily defined by reference to when a defendant is delivered to the custodial authority.”
(Internal quotatiоn marks omitted.) Regardless of the fact that defendant would ultimately receive credit for time served in the county jail, his sentence for unlawful use of a weapon was not executed until he was delivered to the custody of DOC. Thus, Perry is inapposite, and the trial court retained authority to modify the proposed sentence. Because defendant’s sentence had not been executed, we remand this casе to the trial court for resentencing. 3
Sentences vacated; remanded for resentencing; otherwise affirmed.
Notes
Between the hearing in December 2001 and the issuance of the sentencing order in March 2002, defendant filed three handwritten documents with the court, objecting to the terms of the sentence proposed in September. In one of those documents, styled “Defendant’s Objection to Sentencing,” defendаnt objected to the court’s upward dispositional departures, arguing that he had a right to a jury trial on the facts supporting those departures. Among the authorities defendant cited to support his argument
was Apprendi v. New Jersey,
See State v. Jackson,
Defendant also argues that “the imposition of a harsher sentence following a lawful objection to an earlier Sentence presents questions of retaliation.” He asserts that his situation is analogous to that of a defendant who faces a harsher sentence after a successful appeal. We reject that argument without discussion.