State v. Tanner

28; April Argued en October and submitted resubmitted banc affirmed December OREGON, OF STATE Respondent, TANNER, WILLIE LARON Appellant.

9902-31447; A128680 150 P3d 31 argued Deputy Defender, the cause Miles, R. Public Louis appellant. Ozanne, A. him on the brief were Peter for With Legal Gartlan, Defender, Director, and Peter Chief Executive Defense Services. Division, Officeof Public Services Attorney argued Doug General, Petrina, M. Assistant Hardy respondent. him were With brief cause Myers, Attorney Mary General, Williams, and H. Solicitor General. Judge, Edmonds, Landau, Brewer, Chief and

Before Ortega, Armstrong, Schuman, Haselton, Linder, Wollheim, Judges. Rosenblum, and

ARMSTRONG, J. dissenting.

Haselton, J.,

ARMSTRONG, J. following jury trial

Defendant, who was convicted challenging appeals, the trial court’s crimes, various of authority ofthose consecutive sentences for several presumptive- The trial court various convictions. sentencing-guidelines manda sentences and ORS 137.700 tory determined that certain sen sentences, minimum consecutively. argued Defendant tences should be served reasoning appeal under the trial court reiterates Jersey, 466, 120 530 US S Ct v.New (2000), Blakely Washington, 147 L Ed 2d 435 (2004), impo L Ed 2d 403 court’s 2531, 159 S Ct 137.123(5) pursuant to ORS consecutive sentences sition of right under the Sixth Amendment his to a trial violated (1) in the circum Constitution because to the United States 137.123(4) presumptively presented here, ORS stances required concurrent, consecutive, sen (2) imposed consecutive sentences tences; and the trial court by preponderance of the found the court based on facts by jury beyond a doubt. than reasonable evidence rather squarely that we faced the same issue We are thus App Herrera-Lopez, expressly 188, 204 Or in State v. reserved (2006).1 Or 140 We conclude 193, 238, den, 129 P3d rev 341 imposition sentences did of consecutive that the trial court’s therefore affirm. the Sixth Amendment. We not violate undisputed. are material to our review The facts first-degree following trial of Defendant was convicted robbery first-degree rape, ORS firearm, 164.415, with a ORS penetration, first-degree ORS 163.375, unlawful sexual first-degree kidnapping, first- 163.235, and ORS 163.411, burglary, degree a continuous 164.225, all out of ORS against uninterrupted the vic- of conduct directed and course January trial, defendant In the same tim, T, 31,1999. on robbery first-degree another count of convicted of was also kidnapping, second-degree 163.225, ORS a firearm and uninterrupted and same continuous arose out of the which 1 question cases, to review the same we have declined a number of other 460, 108 App See, Taylor, e.g., Or P3d preservation. State v. because of lack of Fuerte-Coria, App den, (2005); P3d 682, 196 Or State v. rev 339 Or (2005). (2004), den, Or 16 rev against course of conduct directed victim, S, different on January appealed 31, 1999.2 Defendant those convictions App (2003), and, in State v. Tanner, 299, 190 Or 78 P3d 132 App recons, 192 Or den, 87 P3d rev modified (2004) (Tanner I), Or 160 affirmed we defendant’s convictions resentencing. objections, but remanded for On I, remand in Tanner imposed pre- over defendant’s the court either sumptive sentencing guidelines sentences under the mandatory Measure 11 minimum sentences under ORS 137.700 and directed that those sentences be served consec- utively to others. objected imposition

Defendant that the of consecu- 137.123(5)(a) pursuant tive sentences to ORS was unconsti- tutional under the rationale announced in Apprendi: * * * 137.123(5)(a) requiring “I view ORS factual find- ings. presumes Oregon. The law concurrent findingsby judge,

Andwithout additionalfactual it is the position [defendant] given defense’s couldbe con- primary current sentenceswith the offense.” rejected imposition The court defendant’s contention that the 137.123(5)(a) pursuant of consecutive sentences to ORS required findings additional of fact Rather, court. necessary support court concluded that the determination imposition legal of consecutive sentences was “a conclu- Proceeding premise, sion.” imposed from that the court con- totaling imprisonment. secutive sentences 616 months’ appeal, On defendant reiterates his contention that pursuant of consecutive sentences to ORS 137.123(5)(a) was unconstitutional under Blakely. provides, pertinent part: ORS 137.123 “(1) imposedby may A sentence the bemade con- current or consecutiveto other sentence which has previously imposed simultaneously

been or is upon may provide the same defendant. The court for con- provisions secutivesentences in accordancewith the of addition, second-degree robbery, defendant was convicted of four counts of 164.405, firearm, possession 166.270, ORS one count of felon in of a ORS and two solicitation, counts challenge of ORS 161.435. Defendant does not those convictions imposed appeal. and the sentences on those convictions on to be a

this section. A sentence shall be deemed concurrent judgment expressly provides for consecu- term unless tive sentences.

“(2) simultaneously for If a defendant sentenced arise criminal that do not same continu- offenses conduct, if the uninterrupted course of or defendant ous and other court within previously was sentenced yet to a which the defendant has not United States completed, may impose a sentence concurrent court with or consecutive to the other sentence sentences.

* * * * “(4) more guilty has been found When defendant a continuous and than one criminal offense uninterrupted out of conduct, for course the sentences resulting shall be concurrent unless each conviction procedures set forth subsection complies (5) of this section. “(5) impose The court has discretion to separate arising out imprisonment terms of for convictions only if uninterrupted course of conduct of continuous the court finds:

“(a) offense which consecutive That the criminal for an vio- contemplated merely was not incidental sentence is in the course of separate provision lation of a indi- rather was an commission of a more serious crime but more than one willingness cation of defendant’s to commit [.]” criminal offense with the outset, respectfully disagree we

At 137.123(5)(a) calls determination that ORS trial court’s than ORS findings.” rather “factual “legal conclusions” 137.123(5)(a) a court to “find” that commission requires but, “merely incidental” another one offense was to com instead, of defendant’s willingness was “an indication as to a offense.” A determination mit more than one criminal than criminal to commit more one willingness defendant’s of the an assessment innately factual, requiring offense is at 492-93 of mind. defendant’s state Cf. at the of mind a defendant’s state (factfinding concerning hope as one might “is close perhaps time the crime ”).3 criminal ‘element’ come to core offense argument reject even if the determina We also the state’s alternative 137.123(5)(a) is a factual required ORS consecutive sentences under tion

Thus, that, we with defendant under ORS agree 137.123(5)(a), in order to consecutive sentences for impose crimes out of a continuous and course uninterrupted conduct, a court must make factual Judicial fact- findings. circumstances, in some run afoul finding sentencing may, of the Amendment, Sixth as set forth the Court in by and later Apprendi Blakely. The black-letter rule of law from is at issue the here is “Other than following: conviction, the fact of a fact that prior any increases the pen for a crime alty beyond the maximum prescribed statutory must be to a jury, submitted and a reasonable proved doubt.” 530 US at 490. Defendant maintains the “pre scribed maximum” for a series of crimes that arise from a and continuous course of conduct uninterrupted equals sentence he could receive for one greatest any crimes, because certain other crimes must be sentenced in concurrently the absence of judicial factfinding required 137.123(5)(a). by ORS The state the rule suggests from Apprendi to “the applies penalty crime,” for a 530 US at 490 (emphasis added), and that singular, the rule has no finding, requisite necessarily by jury returning facts were found in its ver- dict, (“[T]he obviating any Sixth Amendment concern. 542 US at 303 Cf. ‘statutory Apprendi purposes maximum’ judge may is maximum sentence a impose solely jury on the basis in the verdict or admitted facts reflected (Emphasis original.)). particular, in the state reasons because defendant.” guilty offenses, multiple necessarily found defendant it found that “willingness multiple defendant had demonstrated his to commit” offenses as that 137.123(5)(a). Thus, asserts, term is used in ORS the state the consecutive sen- were, fact, jury’s judi- tences based on the verdict and not on some “extramural” factfinding. cial disagree. logical upshot argument legislature We of the state’s is that the impose intended court to be able to consecutive sentences time the found multiple that a defendant had committed offenses. The text of ORS 137.123 as a interpretation. places whole does not such an bear The statute no restrictions on ability impose the court’s consecutive sentences when criminal offenses “do not conduct,” uninterrupted arise from the same continuous and course of ORS 137.123(2), specifically provides but that when offenses do out of a arise continuous conduct, uninterrupted concurrent,” course of the sentences “shall be ORS 137.123(5). 137.123(4), (Empha- unless “the court finds” the facts described in ORS added.) legislature jury’s finding sis If the believed that a that defendant had com- multiple necessarily requisite “willingness mitted offenses demonstrated the phrase commit more than one criminal offense” as that is used ORS 137.123(4) (5)(a) 137.123(5)(a), there would be no reason for ORS to exist. That is, anything there would be no need for the court to “find” of con- —the automatic, finding requirement secutive sentences would be and the would be nugatory. presume legislature imposed We will not that the a useless condition. generally See ORS 174.010. application determining relationship between sen- being tences when a defendant crimes. sentenced for having explained below, in states statutes similar As 137.123(5), majority of courts that have con to ORS vast Blakely question in the sidered this wake of judicial factfinding sup have reached the conclusion that port of consecutive sentences does not violate Sixth agree propo explained below, As we with that Amendment. Apprendi and concern what facts must be sition. by jury specific found in order to sentence for They say nothing specific when sentences for offense. about begin separate to run. The Court’s decisions offenses should concern that sentenc in ing tionally make clear its usurp factfinding functions that tradi courts should not sup juries. Defendant offers no have been left proposition port of none—for the that we are aware —and determining should run on convic when sentences relationship sentences, has ever tions, is, that the between jury’s part a a traditional function. been recently Oregon Supreme Court summarized The concerning pve-Apprendi when Sixth Amendment the law jury rights trial attach: decided], the Court twice had consid

“[Before was sentencing a factor rejected argument the ered crime, which a had to constituted an ‘element’ of the v. beyond a reasonable doubt. See Almendarez-Torres find States, 224, 1219, L Ed 2d 350 US 118 S Ct 140 United 523 79, S Ct (1998); Pennsylvania, 477 US 106 McMillan v. (1986) (illustrating proposition). 91 L Ed 2d 67 trial court to in McMillan authorized a statute at issue by pre minimum if it a mandatory sentence found impose a ‘visibly pos the defendant of the evidence that ponderance underlying committing certain sessed a firearm’ while stated that vis explicitly The statute crimes. 477 US at 81. an element of the a firearm was not possession ible crime. Id. at 83. underlying York, in Patterson New

“Reaffirming its decision (1977), McMillan L Ed 2d 281 197, 97 S Ct US that, obviously are constitu- there ‘[w]hile Court reasoned may go in this the States beyond limits which tional regard, of the standard applicability reasonable doubt * * * always a dependent has been on how State defines charged any given case[.]’ offense that is (internal at 85 omitted). quotation marks Under the terms of the statute, crime, possession’ not an ‘visible was element of prove jury beyond which the state had a a reasonable doubt, rejected petitioners’ arguments and the Court that the Sixth the Due Amendment and Process Clause required a different Id. at conclusion. 86-91.

“In the of rejecting petitioners’ argument, course Court observed that their argument ‘would have least superficial finding more if a appeal possession of visible exposed greater them to or additional punishment’ rather * ** mandatory a than minimum sentence. Id. 88. Almendarez-Torres,

“In a federal statute authorized impose two-year courts to deported illegally States; aliens who returned United it also authorized an enhanced of up years to 20 if the court found a preponderance of the evidence returning felony had prior alien conviction. See US at statute). (describing Having federal received an enhanced sentence under statute, petitioner argued prior Almendarez-Torres because conviction authorized of a sentence in excess of statu- tory maximum rather than mandatory minimum sen- tence, the fact of a an prior conviction was ‘element’ of the government offense that the prove had to to a reasonable doubt. rejected

“The Court petitioner’s argument. the Id. at It 245. reasoned that whether triggers a factor an increased maximum sentence or a mandatory-minimum sentence, which the Court had held constitutional in McMillan, not dispositive is because ‘the risk of unfairness particular less, to a defendant no and may well be greater, mandatory sentence, when a minimum rather than permissive sentence, a Thus, maximum is at issue.’ Id. the significant Court to a ‘adopt declined rule that increase in a statutory maximum trigger sentence would a constitu- [,]’ requirement reasoning tional “elements” a that ‘such rule light existing would seem anomalous in case law[.]’ Id. at 247. later

“Although cases have recast Almendarez-Torres establishing only exception a ‘prior conviction’ to the rule in Almendarez-Torres, the in read on its

Apprendi, decision terms, far The proposition: own stands for a Court broader rule, in as general held Almendarez-Torres a sentenc- maximum ing factors that enhance the sentence do not constitute elements of an offense the state must beyond Indeed, prove to a a reasonable doubt. the dis- majority apply in Almendarez-Torres invited the sent rule that the Court later announced constitutional invitation that the Court declined. See 523 —an (Scalia, J., dissenting) rule later (urging adopted US at 251 in Apprendi).” (foot (2006) 1, 14-16, 125 Or P3d 1260

Miller Lampert, omitted) (some in original). 79 have that would ment that consecutive sentences on counts 3 and 18 produced 12-year imprison- have term Apprendi’s Apprendi received; actual sentence range was thus within the authorized statute for the ** * guilty. pleaded three offensesto whichhe The consti- however, question, 12-year tutional is whether the imposed on 18 that it permissible, given count was was 10-year charged above the maximum the in that for offense * * * count. 3 22 The sentenceson counts and have no more disposition relevance to our than the dismissal remaining 18 counts.” added). (emphasis at 470, 474 Thus, Court in Id. specifically analyze declined an invitation Apprendi aggregated in constitutional issue terms of whether the sen- statutory tences, whole, as a exceeded the maximum for the group Although certainly of offenses. does not question potential answer the whether there are constitu- problems judicial factfinding imposing tional consec- explicitly provided only sentences, utive it a framework determining whether the sentence for an individual count constitutionally impermissible: was “Other than fact of a any prior penalty conviction, fact that increases the for prescribed statutory crime maximum must be jury, proved beyond submitted to a a reasonable doubt.” added). (emphasis Id. None of the Court’s cases that have followed and elaborated on Apprendi contains discussion that is rele question vant to the at hand here —whether howor the rule applies aggregate to limit sum of sentences for crimes when the sentence for each individual crime does not exceed the maximum.4 Harris v. United States, (2002), Ct 2406, 153 S L Ed 2d the Court implicated considered whether the rule from was issue, Although has cases Court decided no that raise this we note currently Stewart, the Court has under the case Burton v. advisement 05-9222, corpus Waddington, No. case Ninth habeas out of the Circuit. Burton (9th 2005). Appx Although questions presented 142 Fed Cir to the Court in retroactivity appears that case concern the of law it of the rule respondent raised, Court, Supreme question in the first instance issue, Blakely applied apparently whether the sentences at which were chal they consecutively lenged judi on the to run basis were ordered based on factfinding. cial mandatory in which the of a minimum term case if a required judge was found at imprisonment during that a firearm had been “brandished” the commission of The that it not: the offense. Court concluded was any the defendant’s sen-

“Apprendi extending said fact beyond by the the jury’s tence maximum authorized verdict aggravated of an would have been considered an element jury by thus domain of the those who crime—and the — of be of a Rights. framed the Bill The same cannot said fact (but mandatory extending the increasing the minimum maximum), statutory jury’s for the the impose the to the minimum judge verdict has authorized finding.” with or without the not all Thus, judi

536 US at 557. the Court made clear that constitutional sentencing presents prob cial factfinding however, The on to find a constitutional did, go lems. Court factfinding required judicial in a scheme that sentencing flaw of necessary imposition of circumstances aggravating Arizona, 584, US 122 S Ct 536 penalty, Ring death (2002), Ed 2d and found similar constitu 2428, 153 L 556 schemes that required judi tional flaws in other necessary of circumstances cial factfinding aggravating see sentences, durational impose upward departure Booker, 220, 125 US S 303-04; United States v. 543 (2005). 2d those cases contains Ct L Ed None of applied that the must be any suggestion Apprendi analysis of sentences challenge concerning length aggregated on individual where the sentence each under circumstances maximum sentence does not exceed the conviction crime. for each individual prescribed impression, of first before us one Thus, issue of it is not dictated decisions prior and the resolution throughout Court. Other courts Supreme United States in the wake however, with the issue nation, grappled have Defen cases, reaching results. line of various Oh NE2d St 3d Foster, dant relies State v. (2006), S which involved den, _ US _, 127 Ct cert limitations on places 137.123 that statute not unlike ORS court’s of consecutive imposition sentences.5 Ohio held Supreme factfinding Court required under Ohio law for consecutive sentences ran afoul of rule of law announced in The court Apprendi. stated:

“Ohio appears to be a rule that unique having of imprisonment concurrently. be shall served R.C. 2929.41(A) states, ‘Except provided [specific sections 2929.14(E)], term, including prison jail term, R.C. or sen- imprisonment tence concurrently shall served Thus, other prison except term.’ for certain enumerated imposing statutes nondiscretionary terms, judicial fact-finding must occur before consecutive sen- 2929.14(E)(4). tences bemay imposed under R.C. We have * * * 2929.14(E)(4) held previously that R.C. trial require[s] courts that consecutive sentences to make sta- tutorily findings enumerated give reasons at the sen- tencing hearing support findings those for review on appeal.

“Thus, exceptions, with limited the Ohio Revised Code provides that consecutive may sentences Ohio not be imposed except after fact-finding by additional In judge. Lett, 274, State v. 161 3dApp [2005], Ohio 829 NE 2d 1281 decision, an en Eighth banc Appellate District found inapplicable is to consecutive sentencing because ‘the by facts found the court do not increase the maximum penalty an true; for individual offense.’ This is neverthe- less, because the total punishment through increases con- judicial secutive findings beyond sentences after those (R.C.) 2929.14(E)(4) provides, part: Ohio Revised Code § prison multiple “If terms are on an offender of for convictions mul- tiple offenses, require may prison the court offender serve the terms con- secutively necessary protect if finds that the consecutive service public punish from future crime or the offender and that consecutive disproportionate not sentences are to the seriousness of the conduct offender’s danger poses public, and to the and if offender the court also finds any following: of the & ‡ “(b) multiple part At two least of the offenses committed of one were as or conduct, by multiple

more courses of and the harm two or caused more of great single prison offenses so committed was so any or unusual that no term for part any of the offenses as of of the conduct committed courses of ade- quately reflects seriousness the offender’s conduct.” defendant, by stipulated R.C. determined

2929.14(E)(4) Blakely” principles violates announced (citations, foot- 21-22, 109 Oh St 3d at 845 NE2d at 490-91 omitted).6 notes, and emphasis contrast, Washington Court took

By Supreme in Apprendi: narrower view the rule of law announced sen does not have to consecutive “Apprendi application tences; to extend hold Apprendi’s conclude otherwise would it the narrow which rested.” State ing beyond grounds upon (2005). 929, Cubias, 155 Wash 2d 120 P3d Ohio, has a scheme for consecu Washington, sentencing like judicial factfinding that under certain tive sentences requires scheme, generally, Under the Washington circumstances. offenses” are to served “current (RCW) Washington Revised Code of concurrently, § 9.94A.589(1)(a), if “a is convicted two or more person but separate from and distinct serious violent offenses conduct,” the sentences for those offenses criminal then to each other.” RCW consecutively § “shall be served 9.94A.589(1)(b). Cubias, was In the question presented offenses factfinding that the defendant’s whether per and distinct criminal conduct” was “separate arose Apprendi. rejecting argument missible under sentencing disagree was with the Ohio conclusion that its scheme We court’s Although upheld regard. unique in it is true that number of courts that have ground against Apprendi challenges have done so on the consecutive sentences see, judicial factfinding, e.g., require United that the States v. schemes did (2003)(consecutive (11th Davis, Cir), den, cert 124 S Ct 330 329 F3d Bramlett, discretionary guidelines); Kan federal State v. sentence was 67, 41 under (2002)(consecutive statute), discretionary was under state P3d 796 jurisdictions governing have statutes a number other (as well in Cubias to those at issue here bear some resemblance follows). Smylie State, Wagener, 823 NE2d 679 that See v. discussed in text (2005) (Ind), den, (judicial factfinding aggravating factor cert 126 S Ct 545 required because did not violate Sixth Amendment consecutive sentence offenses); statutory máximums for the did not exceed the consecutive sentences 2004) (NY finding 675, (judicial People Murray, Sup 3d 636 Ct v. 785 NYS2d Misc committing crime did not violate formed new intent in second that the defendant statutorily Apprendi single “no sentence exceeds the authorizedmaximum because (2003) 1227, Groves, sentence”); App Rptr 2d People 4th 132 Cal v. 107 Cal concerning factfinding sentencing (judicial required whether for consecutive opportunity after the first to reflect on his actions a reasonable defendant had possible the maximum because it did not increase offense did not violate offense). any sentence for and distinct criminal con factfinding “separate trial, ran the Sixth Amendment right duct” afoul of (as noted we in the Supreme Court have dis Washington above), that in specifically cussion Court declined to terms of cumulative sen analyze question tences, and in fact “deemed for purposes them irrelevant Cubias, at 553, 120 931, its 155 Wash 2d P3d at cit holding.” Apprendi, Washington 530 US at 474. The ing continued:

“We are Blakely also satisfied that the decision does not preclude sentencing imposing court from sen- tences in a such as here. is case we have While it true that of consecutive sentences increases a defen- aggregate dant’s term ofimprisonment, significant it is Blakely, like the court was not concerned with Indeed, consecutive sentences. the court considered the on an sentence additional count irrelevant. 542 US 299 n Blakely at 2. It seems clear long that so as the any single sentence for statutory does not exceed the offense offense, here, maximum for that is the case Additionally, satisfied. we note consecutive sentences increase a defendant’s total sentence because he or she was convicted offenses, serious violent not because the sentence maximum any exceeded the sin- gle offense.” (footnote

Cubias, 155 2d 554-55, Wash at 120 P3d 931-32 omitted).

The Illinois Court likewise found no Supreme consti flaw in tutional a consecutive scheme that bears some resemblance to People ours. In 196 Ill 2d Wagener, 269, 430, 752 NE2d den, (2001), cert 534 US 1011 the court considered the of a constitutionality statute allowed court to impose a consecutive after the sentence court had found that such a sentence “required was protect pub Id. 280, lic.” 752 NE2d at 439 Illlinois (quoting Com (ILCS) 5/5-8-4(b)). piled Statutes The court first noted that § “Apprendi explicitly disclaimed con holding regarding sentencing,” secutive 196 1112d at 752 NE2d at pointing to the Court’s explicit framing of issue as “ 12-year ‘whether count 18 was ” permissible,’ 474), id. 530 US and the (quoting Apprendi,

84 to of the state’s invitation consider con rejection

Court’s in the The stitutionality aggregate. of the sentences Illinois “it is that the Court thus concluded that clear deci Supreme holding lower Illinois that consecutive sen [of courts] sions are that concerns case Apprendi tencing triggers extending Ill 2d at 441. The its facts.” 196 at NE2d beyond concluded: recognize “We that contains isolated statements might appear support which on their face to the conclusion beyond each and that the must find a reasonable doubt on every might impact fact which have real-world might spend in For length prison. of time the defendant instance, the Court stated:

“ pro- Tf a that punishment beyond defendant faces is under by vided when an offense committed statute others, it that certain circumstances but not is obvious to liberty stigma attaching both loss of necessarily heightened; are it follows offense put not—at the moment the State defendant should deprived proof protections of those circumstances —be have, point, attached.’ unquestionably until that US Apprendi, also “Apprendi, 530 US 484. See (‘the form, of effect— inquiry relevant is one not but greater required finding the defendant to a expose does the by guilty jury’s than that authorized punishment verdict?’). of con- “However, statements cannot be taken out these Due was ‘whether the Process text. issue fac- requires that a Amendment Clause the Fourteenth maxi- in the authorizing determination an increase tual years be for an 10 to 20 prison mum offense beyond proof a reasonable made basis added.) at 469. See Apprendi, (Emphasis doubt.’ (‘[o]ther the fact of a US at 490 than also for a conviction, any penalty fact that increases the prior must maximum prescribed crime beyond a doubt’ proved reasonable jury, submitted (emphasis added)). con- specifically The Court stated issue’ ‘narrow sentencing was ‘not relevant’ secutive US at Apprendi, 530 474. under consideration. Supreme

“We are bound to follow the United States interpretation Court’s of the Constitution of the United * * * States. But we are not bound to extend the decisions of address, purport the Court to arenas which it did not it specifically addressing, which indeed disavowed in order to find unconstitutional lawa of this state.” (some 286-87, 196 Ill 2d at 752 NE2d at 442-43 citations omitted). jurisdictions grappled sum, In a number of have presented and, with the issue here all while have considered implications Apprendi Blakely may and have on judicial factfinding support sentences, of consecutive all Apprendi but one have declined to extend the rule oflaw from Blakely generally ground into this context, on the Apprendi appeared Court itself to indicate that the rule inapplicable multiple was sentences. agree majority

We with the of courts that have con importantly, agree sidered this matter. First, and most we apply with the Illinois while our court is bound to by the constitution in the manner dictated Court, it is “not bound to extend the decisions of the Court to arenas purport Wagener, which it did not to address.” 196 Ill 2d at 287, 752 NE2d at 442. would, however, so if we We not hesitate to do

perceived inevitably the result to flow from the despite Court’s decisions, announced the fact that the Court did not address the exact Here, however, circumstance. we do perceive Apprendi an extension of into the realm of consecutive to be inevitable. Apprendi The core concern identified the Court in “ jury

was that a defendant is entitled to ‘a determination [he] guilty every that is element the crime with which he ” charged, beyond (quot a reasonable doubt.’ US 477 ing Gaudin, United States v. 506, 510, 115 S Ct (1995) added)). (emphasis By making 132 L Ed 2d length specific dependent of a sentence for a crime factfinding, Jersey the New statute issue was unacceptable departure jury considered “an from the tradi indispensable part justice sys tion that is an of our criminal Apprendi, “jury however, tem.” 530 US at tradition,” 497. concerning jury factfinding manner in has never included separate be served.7More sentences for crimes should which might crime relate in which the facts of one over, the manner not, in the vast another distinct crime have to the facts of majority “elements” of either situations, been considered Constitution does not fact, crime.8And in the United States separate require time and to crimes be tried at same jury. generally Dixon, 509 US See United States the same (1993) (double jeopardy 2d 2849, 125 S Ct L Ed subsequent prosecution if crimes have the “same bars elements”). light considerations, it is difficult to of those judicial factfinding a defendant how to determine when see hap begin crimes that to serve sentences for distinct should proceeding pen constitutes an to have been tried in the same “unacceptable departure tradition.” 530 US at 497. possible that it is that the United

We understand Supreme might, rationale set forth Court based on the States point conclude that at some finding right to the trial extends Sixth Amendment separate relating crimes sentences on facts whether consecutively. concurrently is, That should be served “prescribed future, choose to discern the could, Court statutory in the 490, as the total of maximum,” 530 US required to serve for multi- that a defendant is the sentences ple so, done and it Nonetheless, the Court has not crimes. Apprendi.9 And in relevant in declined to consider issue 7 law, authority a defen inherent to determine whether At common courts had See to or concurrent with other sentences. dant’s sentence should be consecutive (1968). However, Jones, recognized generally P2d as we State v. 250 Or (1997), abrogated Trice, 15, 21, legislature App Or 933 P2d 345 in State v. respect authority with the enactment of ORS 137.123. inherent in that the court’s crimes, prove specific burglary, the state must such as where For certain crime, felony murder, state where the intended to commit another the defendant committing another prove the defendant was that a death occurred while must However, jury. crime, by in the pertaining multiple crimes must be found facts jury right prevent course, guard carefully from a defendant’s courts normal hearing crimes, grounds generally concerning on the of a defendant’s other facts See, e.g., (recognizing on the use of prejudice. constitutional hmitations OEC 404 (9th Rees, cases); McKinney F2d 1378 crimes” evidence criminal “other (1993) process Cir), den, (recognizing defendant’s due criminal cert 510 US 1020 evidence). prejudicial right to exclusion of essentially Admittedly, ofwhat we was obverse the situation in case, urged were if the individual sentences In that the state even have here: only case that we are aware of fact, in the Sixth Amendment addressing question “aggre- of that even comes close to gating” multiple purposes crimes for of Sixth Amendment analysis, rejected approach. an In Lewis v. the Court such L States, United 518 US 116 S Ct 135 Ed 2d 590 (1996), multiple offenses, each of the defendant was tried for penalty Court, which carried a maximum of six months. The presumption cases, in earlier had established a that an carrying prison a maximum term of six months or “offense presumed petty” less is and a defendant such a case is not jury entitled under the Amendment to a trial. Id. at Sixth argued Lewis, In 326. the defendant that he was entitled to a jury aggregated prison trial because the terms authorized multiple charged for the offenses with he was could which imprisonment. exceed six months’ Id. at 323. The Court concluded: “Certainly aggregate potential penalty by faced petitioner importance is ofserious to him. But to determine pur- whether an offenseis serious for Sixth Amendment poses, legislature’sjudgment we lookto the as evidenced penalty the maximum charged authorized. Where the offenses petty, deprivation liberty are and the exceedssix aggregation charges, months as a result of right apply.” trial doesnot Although controlling

Id. at 329. Lewis is not here it because jury rights has to do with when attach at all and not with the scope jury factfinding, provide it at least further does some approach indication that Amendment the Court is inclined to Sixth questions “offense-specific” point an supports view, and thus the idea that a function should simply not be altered based on whether the state tries a defendant for at the time or at differ- offenses same ent times. might summary, although in the future the Court announced rule of law

extend the Sixth Amendment factfinding relating a defendant will whether not; case, by constitutionally aggregate suspect, were in this con- sentences trast, though pass urges constitu- defendant that even the individual sentences aggregate tional under sentences do not. muster consecutively, presently per- serve sentences we are not requires factfinding that the Sixth Amendment such suaded by jury. to be made

Affirmed. dissenting.

HASELTON, J., Oregon’s particular pecu Does somewhat indeed, — imposition scheme for of consecutive sen liar — tences for crimes and uninter from a “continuous 137.123(4) (5), rupted require conduct,” course of ORS and judicial factfinding principles that violates the constitutional Apprendi Jersey, 466, 120 announced in v. New 530 US S Ct (2000), Blakely Washington, L 2348, 147 Ed 2d 435 and (2004)?1 L 2d 403 2531, 159 S Ct Ed question, although hardly easy. stark, That touching Blakely nothing and their Almost and implications years, past We, is. like other state courts over the five “shadowboxing” placed posture have in a been —of divining anticipating and where it is what the Court meant dynamic going. sure, that is not unusual in the wake of To be significant decisions, it is the Court’s most constitutional but especially Nevertheless, I must conclude that acute here. underlying Apprendi principles and the core constitutional Blakely pur- preclude 137.123(4) (5). Accordingly, respectfully I suant to ORS dissent.

My compelled the coincidence and conclusion is although convergence First, both of two factors. challenges the enhancement of a sen- arose as single holdings dependent offense, their were not

tence for holding in each Rather, on that circumstance. the Court’s unqualified condemnation of enhancement case rested on its “punishment” on facts other than of a defendant’s based by jury: those found disputed in that the convictions concern a “continuous and It is not this case 137.123(4) (5) appli

uninterrupted and thus ORS are the course of conduct” cable subsections. that increases the “[A]ny penalty prior [other conviction] fact than statutory maxi- prescribed for a crime beyond jury, proved to a mum must be submitted reasonable doubt.” added). at 490 (emphasis 530 US form, of effect— inquiry

“[T]he relevant is not one of but required finding expose greater does the the defendant to punishment by jury’s guilty than that authorized verdict?” added).

Id. at 494 (emphasis * * * precedents ‘statutory “Our make clear that the maxi- Apprendi purposes mum’ for is the maximum sentence a judge may impose solely on the basis facts reflected verdict or admitted In other defendant. words, ‘statutory the relevant maximum’ is not the maxi- mum facts, judge may impose finding sentence a after additional may impose

but the maximum he without addi- findings. judge punishment tional When a that the inflicts jury’s allow, verdict alone the essential all does not has not found the facts ‘which the law ment,’ the punish- makes judge authority.”

and the proper exceeds his (citations omitted; 542 US at 303-04 first emphasis added). in original; second See also United States v. emphasis (2005) Booker, L 220, 738, 543 US 125 S Ct 160 Ed 2d 621 (federal which fact- sentencing guidelines, required judicial sentences, violated finding support imposition greater Amendment); Arizona, 584, Sixth 536 US 122 S Ct Ring (2002) (death L Ed 2d 556 penalty sentencing cir- required judicial factfinding aggravating scheme Amendment); cumstances violated Sixth Harris v. United (2002) States, 536 US 122 S Ct 153 L Ed 2d 524 (rule of man- implicated by from sentences). datory minimum

Second, 137.123, under sentences for multiple ORS “continuous and arising single uninterrupted crimes concurrent unless course of conduct” are presumed 137.123(1), facts. See ORS affirmatively “finds” certain (4) (5).2 , is, statute, That Oregon’s sentencing states, unlike the statutes in other embod- sentencing many “concurrency ies a default” for offenses out of a continuous and course of con- uninterrupted (1987) Nail, 359, 366, duct. See State v. 304 Or 745 P2d 415 concluding similar statute (interpreting prior the norm and statute “makes concurrent sentences consecu- tive sentences It consecutive sen- exception. permits [.]”). tences if the court makes [specific] findings 137.123(4) line is under The bottom ORS (5), to transform one or more judicial factfinding necessary statutorily concurrent sentences into consecutive presumed matter, factfinding As a such can practical sentences. incarceration, a actual his punishment, increase defendant’s in Indeed, here, years for defendant will 30 more years. spend of the trial fact- sentencing-related because court’s prison finding.

That result cannot reconciled with Apprendi’s be default” of “concurrency core Given the Blakely’s principles: 137.123(1)provides, pertinent part: in ORS may provide only in “The court for consecutive sentences accordance with provisions a term of this section. A sentence shall be deemed to be concurrent judgment expressly provides unless the for consecutive sentences.” 137.123(4)provides: ORS guilty than criminal offense “When a defendant has been found ofmore one conduct, uninterrupted arising the sentences out of a continuous and course of

imposed resulting each conviction shall be concurrent unless the court com- for (5) plies procedures set in subsection of this section.” with the forth added.) (Emphasis 137.123(5)

Finally, provides: ORS imprisonment terms of “The court has discretion to uninterrupted separate a continuous and course of convictions out of only conduct the court if finds'. “(a) sentence is contem- That the criminal offense for which consecutive merely separate provision plated was not an incidental violation of a an indi- of a more serious crime but rather was in the course ofthe commission offense; willingness than one criminal or cation of defendant’s to commit more “(b) contemplated which a consecutive sentence is The criminal offensefor loss, injury causing greater qualitatively different caused or created a risk of or harm to the victim or caused or created risk or loss, injury causing or harm by the other offense or victim than was caused or threatened to different uninterrupted during course of conduct.” offenses committed a continuous and added.) (Emphasis 137.123(4), aggregate that the maximum

ORS solely “impose[d] of the facts on the basis could have jury’s US at was verdict,” imposed in the reflected find- additional without amount that could 137.123(5). Consequently, the ings required under ORS 137.123(5) “expose[d] findings pursuant to ORS court’s greater punishment that authorized than defendant to jury’s guilty 494. 530 US at verdict.” dispute, I differ with on which The essential meaning “prescribed proper majority, pertains utory stat- to the amplified in maximum” as used (and “prescribed majority’s) Blakely. view, In the state’s statutory any to the sentence maximum” refers to the in isolation—and not count viewed individual aggregate view, the con- In defendant’s sentence. defendant’s Although inquiry with both. is concerned stitutional question “concurrency may given abstract, in the be close agree with defendant. 137.123,1 default” feature of ORS suggestion reject the state’s I at the outset Blakely reasoning Apprendi and to the extension of the because the sentences is foreclosed of consecutive were, in the state’s in those cases circumstances addressed Certainly, particular “offense-specific.” circum- words, “offense-specific.” But, were stances reasoning opinion respectfully, its “So what?” Neither expressly any subsequent opinion holding, Court, of the nor question imposes con- of constitutional a limitation. The such any, imposition of con- court’s straints, if on the simply in those cases.3 was not at issue secutive sentences here, argument attempted the Apprendi, to make the obverse of In. the state imposed was not viz., on one count sentence that the that the enhanced the total sentence that did not exceed the unconstitutional because that sentence consecutive, rather than con imposed if it had elected to court could have current, of, alia, There, counts of inter two the defendant was convicted sentences. firearm; statutory for that crime possession maximum sentence of a the unlawful court, finding had acted from a years, upon that the defendant the was 10 imposed motive, a con imposed 12-year one count but racially sentence on biased that, the court The reasoned because on the other count. state current sentence counts, 12-year 10-year the imposed on the two sentences could have “statutory 20-year The Court maximum” sentence. total sentence was within argument: rejected that 12-year however, question, is whether

“The constitutional 10-year given max- permissible, that it was above 18 was on count * * * [consecutive sentence charged in that count. imum for the offense Consequently, I whether, must determine extent, to what reasoning applies that lies the core ofthose decisions judicial process. this context. That is the nature of the argues, The state nevertheless, the relevant “statutory purposes maximum” for of the Sixth Amendment concerning multiple in situations crimes from a con- uninterrupted tinuous and course conduct is not the maxi- may imposed pursuant mum sentence that to ORS judicial factfinding. 137.123 Rather, without the state con- “statutory pur- tends that the maximum” for constitutional poses offense-by-offense must and, be assessed on an basis— long so as each of those sentences rests on facts found jury, the Sixth Amendment is unconcerned with how much actually totality spend prison time a defendant will for the of those crimes. readily acknowledge approach—

I that the state’s majority adopts appeal. which not without intuitive —is principles Nevertheless, I cannot reconcile its result with the expressed Apprendi amplified Blakely. Again, in. those preclude judicial factfinding practical decisions as “punish matter, functional ment.” See increases a criminal defendant’s 303; 542 US at 530 US at 494 by added). (emphasis Again, is what occurred here sentencing judge’s findings pursuant virtue of the to ORS 137.123(5). disposition remaining has] no more relevance to our than the dismissal of the 18 counts.” 530 US at 474. States, The state contends that Lewis v. United 518 US 116 S Ct (1996), supports proposition 135 L Ed 2d 590 the Sixth Amendment does Lewis, sentences, apply aggregated but to individual sentences. jury question right Court addressed the whether to a trial under the Sixth charged “petty Amendment attached when a defendant was offenses,” punishable by imprisonment. each no more than The Court six months’ carrying prison pre noted that an “offense a maximum term of six months or less is and, petty,” legislature provided sumed unless the has additional severe penalties, trial under the Sixth Amend a defendant will not be entitled to rejected argument ment. Id. at 326. The Court the defendant’s that his entitlement aggregation possible to a trial should be determined based on the multiple charges petty offenses: by looking judgment of “[W]e determine whether an offense is serious to the legislature, expressed primarily in the maximum authorized term of Here, by prison

imprisonment. setting the maximum authorized term at six months, obstructing Legislature categorized the offense of the mail as fully appreciate urge I that the result I differs just majority holdings from the also from the of most but appellate other state courts that have addressed the same Compare People Wagener, 269, issue. v. 196 Ill 2d 2d Smylie, 752 NE (2001); 430, den, cert 534 US 1011 State v. 823 NE 2d (Ind), (2005);People cert 126 S den, _ US _, Ct 545 Rptr Black, 740, v. 35 Cal 4th 1238, 534, Cal 3d 113 P3d (2005); pending Cubias, cert 549, and State v. 155 Wash 2d (2005), 120 P3d 929 In re VanDelft, 731, with 158 Wash 2d (2006), Foster, 147P3d 573 State 109 Oh St 3d NE 2d (2006), 470, den, _ US _, Cubias, cert 127 S Ct 442 and (Madsen, 557-58, Wash 2d at 120 P3d J., at 933 concur ring). unper Nevertheless, follow, for the I am reasons reasoning suaded the of most of those courts. begin Wagener, Blakely.

I which antedated Supreme There, the Illinois Court the considered constitu tionality of a statute that allowed a court to a consec utive sentence after the court had found that such sentence “ ” ‘required protect public.’ was 2d 196 Ill 5/5-8-4(b)). (quoting NE2d at 438 730 ILCS The court first “Apprendi explicitly any holding noted that regarding disclaimed sentencing,” 196 Ill 2d at 284, 752 pointing framing NE2d at to the Court’s the issue as “ 12-year per ‘whether the on count 18was ” (quoting 474), missible,’ id. 530 US at and the rejection Court’s stitutionality of the state’s invitation to consider con aggregate.

of the sentences in the The Illinois petty. petitioner charged petty The fact that was with two counts of a offense legislative judgment gravity particular does not revise as of that offense, one, petty nor does it transform into offense a serious to which the jury right apply.” trial would Id. at 327. The Court accept further if it were to noted defendant’s approach, properly jury right by charg- “the Government could trial circumvent ing separate Id. at 330. trying separately.” counts informations and them inapposite. Lewis jury is It concerned whether a defendant entitled to a was Here, dispute “petty” all. there is no had the crimes are not defendant right jury trial; rather, whether, question given ato is defendant’s entitle- trial, properly ment to a facts the determination certain was committed Apprendi Further, clear, as and not the court. the touch- make Lewis, not, Thus, inquiry legislative judgment. stone here one Lewis, light which antedated sheds no the Court’s view of support factfinding in of consecutive sentences. factfinding sup- apply

court then declined to concluding: sentencing, port of consecutive Supreme “We are bound to followthe United States interpretation the decisions Court’s of the Constitution of United * * * we are the of States. But not to extend bound purport address, to it to Court arenas which did specifically addressing, which indeed it disavowed in order unconstitutional a law ofthis state.” find (some Ill 443-44 2d at 752 NE2d at citations omitted). respect, premise court’s that the

With the Illinois “specifically addressing” Apprendi con- Court in disavowed sentencing Rather, noted, 210 Or see secutive erroneous. (Haselton, dissenting), rejected App J., n the Court at 92-93 4 Jersey’s treat error in the defendant’s New invitation to “even without as harmless based on the notion that finding judge judge’s bias, racial could have the trial imposed of counts] [other that would consecutive sentences produced imprisonment 12-year term of have (emphasis Apprendi US at 474 received.” added). explained question that the constitutional The Court specific on a before it was whether the sentence implicitly permissible. Thus, foreclos- Id. far count was factfinding necessary ing analysis application for of its (as imposition the Illinois court of consecutive believed), no address had occasion to Court question. fundamentally,

Perhaps the Illinois court’s more judicial Wagener product holding caution, of was the recently its decided hesitation to extend development pending particular further circumstances ampli- guidance, Blakely, however, afforded that instruction. perceive persua- guidance, fying Apprendi. I no Given application Apprendi’s principled on the limitation sive necessary factfinding Blakely’s reasoning presumptively con- consecutive, rather than current, sentences. Smylie, Supreme Court reached the Indiana

In Wagener, differ- for somewhat to that albeit result similar sentencing “on when noted There, the court ent reasons. counts, may an Indiana trial consec- judge impose if she fac- aggravating utive sentence he or finds least one factor is “a an tor” and that finding aggravating requirement may imposed.” before a consecutive sentence Nevertheless, 823 NE2d at 686. the court concluded that any target “our statutes do not erect con- presumption cerning concurrent or consecutive sentences. Where criminal unguided law leaves discretion judge ‘judicial of the no impingement upon there is the tra- ” jury.’ ditional role of the 309). Id. US at (quoting do

Again, respect, I not understand that rea- I soning. how, do not understand if a sentenc- particular, ing requires findings scheme court to make of aggravating circumstances before the court can consecutive sen- tence, the court is the sort of unlimited discretion exercising in that the Court indicated would be permissible. is, 308-09. That the exercise of “discretion” is hardly

unlimited —it is conditioned predicate judicial factfind- upon ing and, the but those defendant would receive findings, — a concurrent Accord sentence. 542 at 305 (“Whether the to an judge’s enhanced sen- authority (as in. tence on a Apprendi), depends finding specified fact one (as of in Ring), any aggravating specified several facts or fact (as it the here), remains case that the jury’s verdict alone does not authorize the sentence.” in (Emphasis original.)).5 Cubias, decision,

In a closely Washington divided the oí Supreme Court addressed application the and see scheme, to Washington’s sentencing (RCW) Revised of Washington 9.94A.589(1), which, Code like 5 similarly law, law, appears Oregon Black to be Under flawed. California like convictions, when on the to if court “fails direct how the terms run, 1261-62, they concurrently.” Rptr are to must run Cal 4th at 29 Cal 3d at added). 756, 113 (emphasis judge P3d at If a desires the sentences to be served consecutively concurrently, pri rather than or she must on the “he state the record (internal mary support quota factor or factors that the of exercise discretion.” Id. omitted). Black, jury’s tion marks citations In the court concluded that a find ing guilt multiple of the offenses “authorizes maximum sentence for offense,” judge’s each and that a determination of whether those sentences are to concurrently consecutively “usurp!] jury’s be served does not historical 1263, 29 Rptr role.” Id. at Cal 3d at P3d at 549. for concurrent offenses “sentences

Oregon’s, provides are run with limited concurrently exceptions” to presumed make sentence, a consecutive court must “impose 2d additional of fact.” Wash P3d findings (Madsen, J., concurring). majority court’s viewed in as did the Illinois court essentially issue same manner con- application does have Wagener: “Apprendi sentences; to conclude otherwise would extend secutive it beyond grounds upon the narrow which Apprendi’s holding 2d at 120 P3d at 931. How- Cubias, rested.” 155 Wash I pointed Cubias out —and ever, concurring judges circumstantially was not so circum- agree —that Thus, concurring in the view: judges’ scribed. imposing can little consecutive sen- “There doubt dramatically quantum presumptive tences increases legislature the trial court to punishment authorized circumstances. For Sixth impose, exceptional absent there is no difference between an purposes, Amendment length exceptional that increases the of sentence sentence beyond range, exceptional and an consec- for one count length presumptive utive sentence increases prisoner Both incarcerated keep incarceration. longer serve if presumptive than case would be the cases, length impris- the overall imposed. were both cases, increased, judge has and in made onment both findings fact order to additional by the presumptive of incarceration authorized period legislature. ‡ ‡ Hí

«íH distinguish between principled “There is no basis to exceptional consecu- exceptional individual sentences from the sentences; depart in each the decision tive case on a factual determination presumptive sentence is based by judge.” made J., 558-59, (Madsen, at 934-35 2d P3d

155 Wash (internal omitted; in emphasis marks quotation concurring) original).6 they judges in concluded that in that case because concurred the result Those support imposition did, fact, findings of consec requisite in make the (Madsen, J., concurring). 562, 120 P3d 2d at at 933 utive Wash sentence. Foster,

More in the Ohio Court recently, Supreme unanimously held that that state’s consecutive sentencing that required ran afoul of the provisions judicial factfinding Sixth Amendment in Apprendi. announced principle court concluded: 2929.41(A) states, ‘Except

“R.C. sec- provided [specific in including 2929.14(E)], term, jail term, tions R.C. prison or imprisonment sentence of any shall concurrently be served with prison Thus, other term.’ for except certain enumerated nondiscretionary imposing terms, statutes consecutive judicial fact-finding occur must before consecutive sen- 2929.14(E)(4). may tences under R.C. haveWe * * 2929.14(E)(4) held previously *require[s] that R.C. trial courts that impose consecutive sentences to make sta- tutorily findings give enumerated and to reasons the sen- tencing hearing to support findings those for review appeal.

“Thus, exceptions, with limited the Ohio Revised Code provides that may consecutive sentences Ohio not be imposed except after fact-finding by additional judge. Lett,

State [2005], 161 Ohio 3d App NE 2d 1281 decision, an Eighth en banc Appellate District held that Blakely is inapplicable to consecutive sentencing because ‘the facts found the court do not increase the maximum penalty true; for an individual offense.’ This is neverthe- less, punishment because the total through increases con- secutive sentences findings beyond after those determined by jury stipulated by defendant, or R.C. 2929.14(E)(4) principles violates Blakely.” announced in 21-22, 109 Oh 3d at (citations, St 845 NE2d at 490-91 foot- omitted). notes, and emphasis

Finally, most recently, VanDelft, Washington Court revisited Supreme Blakely’s appli proper cation state’s consecutive scheme. Cubias, Although closely divided court had determined did preclude pursuant 9.94A.589(1)(b),7 to RCW in VanDelft, 9.94A.589(1)(b) provides: RCW person ‘Whenever a convicted two more serious violent offenses conduct, separate and distinct criminal the standard sentence range highest offense seriousness level under RCW 9.94A.515 of a held that consecu unanimously imposition court 9.94A.589(1)(a) to did violate tive sentence RCW pursuant 9.94A.589(1)(a) in as pertinent part, RCW Blakely. provides, follows: shall be imposed under this subsection served

“Sentences concurrently. may only be imposed Consecutive sentences exceptional provisions sentence RCW under 9.94A.535.”8 concluded: court by judge the trial in this case went

“[T]he facts found changed verdict and the nature the sen expect to for count tence that the defendant was entitled findings judge’s to consecutive. The trial from concurrent violent operated punishment to elevate the for nonserious punishment to for serious violent offense the realm of not in the verdict. jury’s offenses based on facts reflected 303; 530 U.S. at 494 Blakely, 542 U.S. at See * * *. dispute legisla

“More there is no that importantly, imposed has ture under characterized consecutive (1)(a) requiring finding aggra of an exceptional, fact, in 9.94A.535. In order vating support. factor for RCW in presumption sentencing of concurrent to overcome the very (1)(a), employed in this case sentencing judge Blakely.” at issue in exceptional sentencing scheme at 579. Wash 2d at P3d VanDelft, 158 jurisdictions from other sum, courts appellate divided on the sentencing laws are with similar consecutive to do as the tempting It is, frankly, here. question presented prior using and other current determined the offender’s convictions shall be and not in the score that are serious violent offenses offender convictions range shall be determined for other serious violent offenses standard sentence by range using for an score of zero. The standard offender according that violent offenses shall determined offenses are serious (b) (a) imposed shall under of this subsection of this subsection. All sentences consecutively concurrently with sentences each other and be served (a) of this subsection.” under operation explained between subsections the difference The court (1)(a) (1)(b) applies are not “[f]elonies and is that former offenses,” VanDelft, 2d P3d at and the Wash serious violent sepa latter, solely terms, pertains to “serious violent offenses its criminal conduct.” rate and distinct majority apply Apprendi Blakely has done and decline to and imposition pending to instruction —or of consecutive sentences further yet,

compulsion. And unlike Wagener majority agree and the in Cubias, I cannot that the reasoning holdings Apprendi preclu- and are sively “offense-specific.”And like the courts in VanDelft given my Foster and the concurrence in Cubias, understand- ing principles of the core informed principled dechning apply I no see basis those principles pursu- to the of consecutive sentences 137.123(5). ant to ORS sum, I would conclude that the of con- judicial findings pursuant secutive sentences based on offact 137.123(5) to ORS violates Sixth Amendment Consequently, United States Constitution. remanded for the case should be resentencing. respectfully

I dissent. Ortega, join Schuman, Rosenblum, JJ., in this dissent. notes brackets law. Apprendi brought major change about two guilty the defendant second- Apprendi, pleaded and one of third- degree possession charges charge firearm of a Based on degree possession unlawful bomb. the crime because of the defendant committed finding enhanced bias, an racial the court offenses, the firearms which otherwise would years for one of years. have carried a maximum sentence of 10 question a con- in that case was whether the defendant “had issue find bias on stitutional have such basis right 475- doubt.” reasonable proof its analytical 76. The Court’s facts and description on the issue at hand: light shed some approach on plea agreement provided that the sentence “Because the (count 22) run concur- third-degree offense would the sole sentences, rently potential other judge counts critical. If second-degree the two were enhancement, purpose no for the biased found basis sentences on those counts would maximum consecutive if, however, judge years in aggregate; amount to 20 18, maximum on that on count enhanced the sentence two years and the maximum the count alone would be * ** years aggregate [.] would be 30 counts * ‡ * * why certain appropriate begin explaining “It is issue that case to the narrow aspects of the are relevant First, argued has that even with- must the State we resolve. bias, judge judge’s of racial could finding out the trial

Case Details

Case Name: State v. Tanner

Court Name: Court of Appeals of Oregon

Date Published: Dec 20, 2006

Citation: 150 P.3d 31

Docket Number: 9902-31447; A128680

Court Abbreviation: Or. Ct. App.