Argued and Submitted October 16, 2013.
Clackamas County Circuit Court CR8600945. Eve L. Miller, Judge.
Peter Gartlan, Chief Defender, argued the cause for appellant. With him on the brief was Office of Public Defense Services.
Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[262 Or.App. 111] HADLOCK, J.
In 1987, defendant pleaded guilty to attempted aggravated murder and ex-convict in possession of a firearm. The trial court imposed a 30-year dangerous-offender sentence with a 15-year minimum term of confinement by way of a document titled simply " ORDER" (the 1987 sentencing order). At around the same time--in a case that is not implicated by this appeal--defendant was sentenced to life imprisonment with a 30-year minimum in a separate case in which he pleaded guilty to several crimes including the aggravated felony murder of his father, and he began serving that term. Nearly 25 years later, the Oregon Department of Corrections (DOC) declined to include the dangerous-offender sentence on defendant's attempted aggravated murder conviction when it calculated defendant's overall prison term. Accordingly, the state asked the trial court to enter a new judgment generally reflecting the terms of the 1987 sentencing order. The trial court did so in 2011 and defendant now appeals, seeking a remand for a new sentencing hearing.
The unusual procedural history of this case presents us with several questions. First, we must determine whether the 1987 sentencing order was a final judgment from which defendant could have--and should have--appealed. The state contends that it was and that, therefore, defendant cannot belatedly challenge his dangerous-offender sentence by appealing the judgment entered in 2011. In addition to that jurisdictional issue, the case also presents the questions (1) whether the trial court had authority, in 2011, to enter a general judgment of conviction and sentence that generally reflects the terms described in the 1987 sentencing order, (2) whether defendant properly could appeal that judgment, and (3) if so, whether defendant has established that we should reverse that judgment and remand for resentencing. For the reasons that follow, we conclude that we have jurisdiction to consider defendant's appeal, and we affirm the 2011 judgment.
For purposes of this appeal, the facts are undisputed. In September 1986, defendant fired a shotgun at a law enforcement officer. As a result of that shooting and [262 Or.App. 112] other alleged criminal acts, defendant was charged in this case--Clackamas County case number 86-945--with attempted aggravated murder with a firearm, first-degree burglary with a firearm, and ex-convict in possession of a concealable firearm with a firearm.
A few days after defendant committed the crimes described above, defendant kidnapped and murdered his father. Defendant was charged in a separate criminal case--Clackamas County case number 86-946 (the aggravated murder case)--in relation to that killing and, in mid-1987, pleaded guilty to crimes including aggravated felony murder with a firearm, ex-convict in possession of a firearm with a firearm, and unauthorized use of a vehicle (UUV) with a firearm. Defendant was sentenced to life imprisonment with a 30-year minimum period of confinement on the murder conviction. In addition, the trial court imposed five-year sentences with 30-month minimum periods of incarceration on the possession and UUV convictions, to run consecutively to all other sentences.
Defendant later pleaded guilty to two of the charges in this case: attempted aggravated murder and ex-convict in possession of a firearm. The state then moved for an order declaring defendant to be a dangerous offender under ORS 161.735, based in part on his convictions in the aggravated murder
case. The trial court ordered defendant to submit to a dangerous-offender evaluation and scheduled a sentencing hearing, which eventually occurred on December 18, 1987. At some point during the hearing, the court explained its intent to sentence defendant as a dangerous offender:
" The Court makes the following findings pursuant to ORS 161.725, which is the dangerous offender statute we have been talking about this morning. Based upon the testimony of [two doctors], the presentence investigation and all the others in the case, I find that you suffer from a [262 Or.App. 113] severe personality disorder indicating a propensity toward criminal conduct. I find further that first because of your dangerousness, an extended period of confinement is necessary to protect the public.
" I find that you are being sentenced for a Class A felony. I further find that you are being sentenced for a felony that seriously endangered the life or safety of another and that you have a previous felony conviction. I find further, as previously indicated, that you suffer from a severe personality disorder indicating a propensity toward criminal activity. These findings in the Court's opinion justify a conclusion that the provisions of ORS 161.725 apply.
" The Court further finds, pursuant to ORS 161.610, that there was a felony involving the use of a firearm. In short, you tried to shoot a police officer with a shotgun.
" The Court, therefore, based upon that, imposes sentence as follows:
" Having found that you are a dangerous offender, you will be sentenced to the custody of the State Corrections Division for a period of 30 years. I will impose a minimum sentence of 15 years. The Court finds that this is not part of the same course of conduct for which you were previously ...