Argued and submitted on September 27, 2012.
Marion County Circuit Court 10C44374 Dennis J. Graves, Judge.
Laura E. Coffin, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
Defendant appeals a judgment of conviction for two counts of criminal mistreatment in the first degree, ORS 163.205,  for knowingly causing physical injury to two of his children by repeatedly striking or "spanking" them severely enough to produce large bruises on their buttocks. The issue on appeal is whether the two spankings constitute a single criminal episode or two separate criminal episodes for purposes of sentencing. The trial court concluded that the two spankings constituted separate criminal episodes. Defendant contends that the trial court improperly sentenced him when it relied on that conclusion as a basis for enhancing defendant's criminal history score. The state argues that defendant's appeal is not justiciable because it depends on hypothetical future events and that, regardless, the trial court correctly determined that defendant's offenses constituted separate criminal episodes. We conclude that defendant's appeal is justiciable and that the trial court erred when it concluded that each spanking comprised a separate criminal episode. We remand for resentencing.
The salient facts are not in dispute. Defendant, a single father, was living with his three children (A, K, and S). Defendant awoke one morning to find that the children had made a mess in the bathroom. Defendant was angry with the children and ordered them to return to their bedroom. K and S shared a bunk bed in the room and A had a separate bed in the same room. Defendant struck all three children. Defendant first spanked A, who did not sustain any injuries. The state did not charge defendant for that conduct. Next, defendant walked to the bottom bunk bed and spanked S several times. After striking S, defendant stood on the bottom bunk to reach K on the top bunk. Defendant struck K 15 to 25 times, saying, "Don't do that again" and "How many times do I have to tell you; don't do that." Both K and S sustained injuries as a result of the spanking.
The state charged defendant with two counts of criminal mistreatment in the first degree in violation of ORS 163.205. A jury found defendant guilty on both counts. Before sentencing, the state filed a memorandum in which it argued that defendant's two offenses constituted separate criminal episodes and that the court should use the conviction for Count 1 as criminal history for sentencing on Count 2. At sentencing, defendant argued that the two offenses were part of the same criminal episode and that, therefore, the trial court could not use the conviction Count 1 as criminal history for Count 2.
The trial court concluded that defendant's offenses constituted two separate criminal episodes. The court categorized defendant as a "7H" offender on Count 1 and sentenced him to a probationary term of 36 months--within the presumptive range for that grid block. The trial court then used that conviction as part of defendant's criminal history for purposes of imposing sentence on Count 2 and therefore calculated defendant as a "7D" offender on that count. However, for Count 2, the court did not impose the presumptive sentence under 7D, 19 to 20 months of incarceration. Instead, the court imposed a downward dispositional departure sentence of 36 months on probation, the same sentence that defendant received under grid block 7H for Count 1.
On appeal, defendant challenges the trial court's use of his conviction on Count 1 as criminal history when sentencing him on Count 2. Defendant asserts that the trial court erred by concluding that the offenses constituted separate criminal episodes. The state argues that the trial court correctly ruled and, as a threshold matter, that defendant's claim is not justiciable.
II. THE SENTENCING GUIDELINES
We begin with a discussion of the relevant aspects of Oregon's sentencing guidelines. "In 1987, the Oregon legislature authorized the Oregon Criminal Justice Council [(the council)] to develop a set of mandatory felony sentencing guidelines * * *." State v. Davis, 315 Or 484, 486, 847 P.2d 834 (1993) (footnote omitted). The legislature also created the State Sentencing Guidelines Board (the board) to serve as the administrative body that would adopt and promulgate the guidelines in the form of administrative rules. Id.; State v. Miller, 317 Or 297, 300-01, 855 P.2d 1093 (1993). The board completed that task and the legislature approved the guidelines in 1989. Davis, 315 Or at 486-87.
The guidelines were developed to address two overarching concerns: inconsistent sentencing practices and overcrowding in Oregon's prisons. This is evident from the preamble to the implementing legislation, which provides, in part:
"[T]he Legislative Assembly finds that within the present system it is impossible to insure that the sentencing decisions of judges result in reasonably uniform and proportional use of state and local correctional resources; and
"* * * the decision to imprison offenders and decisions as to the period of such imprisonment must be made on a systematic basis that will maintain institutional populations within a level for which the Legislative Assembly and the people of the state are prepared to provide[.]"
Or Laws 1987, ch 619; State v. Davis, 113 Or.App. 118, 121, 830 P.2d 620 (1992), aff'd and rem'd for rensentencing, 315 Or 484, 847 P.2d 834 (1993) (referring to the preamble as articulating the policy underlying the guidelines); State v. Seals, 113 Or.App. 700, 704, 833 P.2d 1344 (1992) (same); Laird C. Kirkpatrick,  Mandatory Felony Sentencing Guidelines: The Oregon Model, 25 UC Davis L Rev 695, 697 (1992) ("[P]roponents [of the guidelines] argued that the guidelines could reduce current prison overcrowding and prevent future overcrowding."). The rules and the implementing legislation both note that the "primary objectives" of the guidelines are "to punish each offender appropriately, and to insure the security of the people in person and property, within the limits of the correctional resources." OAR 213-002-0001(1) (emphasis added); see also Or Laws 1987, ch 619, § 2(2) (containing substantially similar language); OAR 213-002-0001(3)(a) ("The response of the corrections system to crime * * * must reflect the resources available for that response. A corrections system that overruns its resources is a system that cannot deliver * * *.").
Based on that policy, the council developed the centerpiece of the guidelines, the 99-block Sentencing Guidelines Grid. Kirkpatrick, 25 UC Davis L Rev at 700-01; Davis, 315 Or at 487; see also OAR ch 213, app 1 (setting out the grid). The grid was based on the council's conclusion that "the two primary determinants of an appropriate sentence should be the seriousness of the crime and the offender's criminal history." Kirkpatrick, 25 UC Davis L Rev at 701. A sentencing judge uses the grid to determine the proper sentence for a given conviction by, first, identifying the appropriate category for the crime of conviction on the vertical crime seriousness scale; then, determining the appropriate category for the convicted offender on the horizontal criminal history scale; and, finally, locating the grid block where the two categories intersect. Davis, 315 Or at 487.
The criminal history scale classifies an offender's history according to the number and nature of the offender's prior convictions. OAR 213-004-0006(1). The scale consists of nine categories, ranging from "A" (the highest) to "I" (no criminal history). Id. In establishing criminal history as one of the two determinants of a given sentence, the council reasoned that
"greater severity is justified when the offender has been convicted previously but has continued to engage in criminal conduct. Because authorities generally consider criminal history one of the best predictors of an offender's likelihood to engage in future criminal conduct, consideration of criminal history is relevant to both appropriate punishment and protection of public safety."
Kirkpatrick, 25 UC Davis L Rev at 701.
The rule at issue here, OAR 213-004-0006(2), governs the determination of the appropriate criminal history category, or "score, " for a given conviction. State v. Bucholz, 317 Or 309, 311-12, 855 P.2d 1100 (1993) (stating that former OAR 253-04-006 is "the governing rule for calculation of criminal histories"); State v. Allen, 151 Or.App. 281, 283 n 1, 948 P.2d 745 (1997) (noting that, "[i]n late 1995, the sentencing guidelines * * * were shifted from OAR chapter 253 to chapter 213"). Specifically, OAR 213-004-0006(2) provides, in part:
"An offender's criminal history is based upon the number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender's criminal history at the time the current crime or crimes of conviction are sentenced."
The sentencing judge must determine the offender's criminal history by a preponderance of the evidence at the sentencing hearing (unless the offender admits his criminal history in open court). OAR 213-004-0013(1).
The rule was intended to advance the two primary objectives of the guidelines, discussed above, by promoting consistency in sentencing so as to mitigate prison overcrowding. See Commentary to Oregon Sentencing Guidelines Implementation Manual, 51 (1989) (the commentary) ("[T]he legislative intent [of the rule] was to capture as accurately as possible the offender's criminal record at the time of sentencing without encouraging the manipulation of court proceedings as a means to affect the offender's criminal history classification."); Seals, 113 Or.App. at 703 (holding that that commentary "accurately reflects the legislative intent"); see also id. at 704 (noting that legislators agreed, after discussing "the impact of the rule on projected prison populations[, ]" that the rule was not intended to be interpreted in a way that would "result in increased prison population" and that "[t]hat understanding of [the rule] comports with the principle underlying the guidelines to punish offenders within the limits of correctional resources").
Each grid block states a presumptive range for offenders whose crime of conviction and criminal history place them in that grid block. OAR 213-004-0001(2). A sentencing judge must impose a presumptive sentence within the range dictated by the appropriate grid block, unless the factfinder finds "substantial and compelling" reasons in aggravation or mitigation, in which case the judge may depart from the presumptive range. OAR 213-008-0001. A sentence that imposes probation when the presumptive sentence is prison, or vice versa, is known as a "dispositional departure." OAR 213-003-0001(6).
When an offender violates a condition of probation, a court may revoke the offender's probation and impose a prison term as a sanction. OAR 213-010-0001; OAR 213-010-0002. For offenders whose probationary sentence resulted from a dispositional departure, the sanction upon revocation is a prison term up to the maximum presumptive prison term that could have been imposed under the presumptive sentence. OAR 213-010-0002(2). Accordingly, in this case, although defendant received a dispositional departure of probation on the second count of conviction, if his probation is revoked and he is sentenced to a term of incarceration as a sanction, he could be sentenced to serve 19 to 20 months in prison. By contrast, had the trial court sentenced defendant as a 7H offender, as defendant argues the court should have, the maximum permitted revocation sanction would be just six months. As a threshold issue, the state focuses on the ...