State v. TriceState v. Trice
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- Before:
- Deits
Defendant was waived to adult court, under
For the juvenile adjudication, defendant was placed within the jurisdiction of the juvenile court for an indefinite period not to extend beyond his 21st birthday. At sentencing for the adult conviction for murder, which was before the same judge as in juvenile court, defendant was sentenced to a durational departure of256 months to run consecutive to the juvenile court’s jurisdiction. On the first-degree assault charge, the court determined that defendant was a dangerous offender and again departed, imposing a 130-month determinate sentence and a 230-month indeterminate sentence. That sentence was ordered to run concurrent with the sentence for murder and consecutive to the juvenile court’s jurisdiction.
Defendant first argues that the court did not have authority to impose the adult sentences consecutive to the juvenile dispositions. He relies on
“(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been previously imposed or is simultaneously imposed upon the same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.
“(2) If a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct, or if the defendant previously was sentenced by any other court within the United States to a sentence which the defendant has not yet completed, the court may impose a sentence concurrent with or consecutive to tbe other sentence or sentences.” (Emphasis supplied.)
Defendant contends that, under
The state responds by arguing that a disposition that a child is within the jurisdiction of the juvenile court is a “sentence” for purposes of
In determining whether a juvenile adjudication is a “sentence” for purposes of
As noted above,
One rule of construction that we use to determine the legislature’s intent is that words of common usage are to be given their “plain, natural, and ordinary meaning.” PGE, 317 Or at 611. The term “sentence” is generally defined as “the judgment passed by a court or judge on a person on trial as a criminal or offender” and as an “order by which a court or judge imposes punishment or penalty upon a person found guilty.” Webster’s Third New International Dictionary 2068 (unabridged ed 1993). Under that general definition, in the absence of specific inclusion or exclusion by a statutory provision, in order for a particular disposition to be a sentence, the disposition must be ordered by the court, it must be a disposition that affects a criminal or an offender, and it should serve to punish or penalize.
Without doubt, most of the various dispositions that a criminal defendant faces following conviction for crimes or offenses under the provisions of section 137 and the sentencing guidelines are “sentences,” as defined above. The more difficult question is whether a juvenile adjudication comes within the general definition of a “sentence” as discussed
On the other hand, there are significant distinctions between the juvenile and adult criminal process. First, there are a number of dispositions available in a juvenile proceeding that are not available in a criminal context. Further, the statutes make clear that “[a]n adjudication by a juvenile court that a child is within its jurisdiction
is not a conviction of a crime or offense,” former
After considering the text and context of
The state argues alternatively that the court has inherent authority to structure sentences as it sees fit, and that the court’s decision to impose the adult sentences consecutive to the juvenile court adjudication was within that authority. The state relies primarily on
State v. Jones,
250 Or 59, 440 P2d 371 (1968). In
Jones,
the court held that even though, at that time, there were no statutes authorizing imposition of concurrent or consecutive terms, the court had inherent authority to do so “when the occasion demands it.”
Id.
at 61. Since that time, however, the legislature has enacted
“(1) Subject to the provisions ofORS 161.737 , the maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and if it further finds, as provided inORS 161.735 , that one or more of the following grounds exist:
“(a) The defendant is being sentenced for a Class A felony, and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.
“(b) The defendant is being sentenced for a felony that seriously endangered the life or safety of another, the defendant has been previously convicted of a felony not related to the instant crime as a single criminal episode and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.
“(c) The defendant is being sentenced for a felony that seriously endangered the life or safety of another, the defendant has previously engaged in unlawful conduct not related to the instant crime as a single criminal episode that seriously endangered the life or safety of another and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.”
“(1) Upon motion of the district attorney, and if, in the opinion of the court, there is reason to believe that the defendant falls withinORS 161.725 , the court shall order a presentence investigation and an examination by a psychiatrist or psychologist. The court may appoint one or more qualified psychiatrists or psychologists to examine the defendant in the local correctional facility.
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“(5) Upon receipt of the examination and presentence reports the court shall set a time for a presentence hearing, unless the district attorney and the defendant waive the hearing. At the presentence hearing the district attorney and the defendant may question any psychiatrist or psychologist who examined the defendant pursuant to this section.
“(6) If, after considering the presentence report, the examination reports and the evidence in the case or [from] the presentence hearing, the court finds that the defendant comes withinORS 161.725 , the court may sentence the defendant as a dangerous offender.” (Emphasis supplied.)
Defendant is correct that the psychiatrists evaluating him did not formally conclude that he had a “severe personality disorder.” Dr. Rice, testifying for the state, stated that he could not “technically” diagnose defendant as having a severe personality disorder, because the DSM III-R lists age 18 as the age at which such a formal diagnosis can be made. However, he also said that that line was arbitrary and that, because of defendant’s personality structure, he did not expect defendant to change much before he turned 18 and could be formally diagnosed. He diagnosed defendant with a conduct disorder as well as an anti-social personality disorder. He also stated his belief that defendant has a psychopathic personality organization that is
Dr. Johnson, in a report prepared for defendant’s presentence investigation, stated that it is uncommon to assign personality disorders to an adolescent. However, he concluded that defendant suffered from a narcissistic personality disorder and a borderline personality disorder and that “these disorders appear to be well established and there is reason to believe they will be durable.” He concluded also that defendant was at high risk for committing future violence.
While it is true that none of the experts here stated that defendant suffered from a “severe personality disorder,” we do not agree that there must be such a conclusion by an expert in order for the court to reach that conclusion. The Supreme Court, in State v. Huntley, 302 Or 418, 730 P2d 1234 (1986), has made it clear that it is not necessary for a psychiatrist or psychologist officially to diagnose a defendant with a severe personality disorder in order for a court to find that a severe personality disorder exists for purposes of the dangerous offender statutes. 3 The court explained that although diagnostic criteria set out in accepted psychiatric manuals, such as the DSM III, may be helpful to the court in making its determination, the question of whether a defendant suffers from a severe personality disorder indicating a propensity toward criminal activity is ultimately one for the court:
“[T]he essence of the dangerous offender classification is not one specific diagnosis, but any significant mental or emotional disorder or disturbance — a lay concept — and that the finding should be based on the judge’s evaluation of all the information gathered, not exclusively on the clinical diagnosis.” (Emphasis supplied.)
Id. at 430, citing Guides for Sentencing, Dangerous Offenders, Council of Judges of the National Council on Crime and Delinquency (2d ed 1974). See also State v. Odoms, 117 Or App 1, 7, 844 P2d 217 (1992) (sentencing court is not bound by psychiatric expert’s evaluation).
We conclude that the trial court made the findings required by the statute to impose a dangerous offender sentence and, as discussed above, those findings are supported by the record. We affirm defendant’s remaining assignments of error without discussion.
Judgment of conviction affirmed; remanded for resentencing.
Notes
Defendant’s adult convictions and sentencing occurred before the effective date of the 1995 amendments to the juvenile code.
We do not address whether any of the 1995 amendments to the juvenile code changed the purpose of the juvenile process. However, we note that
Some of the language in