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State v. Dizick

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON RAY DIZICK, Defendant-Appellant.

          Argued and submitted January 20, 2016

         Coos County Circuit Court 93CR0153; Richard L. Barron, Judge.

          David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary: Defendant appeals an amended judgment of conviction for two counts of attempted aggravated murder, two counts of first-degree robbery with a firearm, and two counts of first-degree assault. That amended judgment was entered more than 20 years after defendant was first convicted of those crimes, pursuant to the state's motion to modify the judgment under ORS 138.083(1)(a) to change "erroneous term[s]" in the judgment. The state moved to amend the judgment to include the grid block scores and presumptive sentences for the two counts of attempted aggravated murder that the trial court had previously announced on the record but omitted from the judgment. Defendant responded to that motion and asserted that the court should amend the judgment to impose different sentences because the grid block scores it had announced on the record were legally incorrect. The court granted the state's motion and added the omitted terms. Defendant assigns error to the court's failure to recalculate his grid block scores. Held: A trial court's decision whether to modify an erroneous term of a judgment under ORS 138.083(1)(a) is highly discretionary, and the court may decline to correct a legally erroneous term so long as it articulates a permissible reason for doing so. Here, the trial court offered appropriate reasons for denying defendant's proposed modifications to the judgment. Thus, even assuming that the trial court erroneously calculated defendant's grid block scores, the trial court did not abuse its discretion by declining to revisit its oral rulings and amending its judgment to accurately reflect those rulings.

          SERCOMBE, P. J.

         Defendant appeals an amended judgment of conviction for two counts of attempted aggravated murder, ORS 163.095 and ORS 161.405, two counts of first-degree robbery with a firearm, ORS 164.415, and two counts of first-degree assault, ORS 163.185. That amended judgment was entered by the trial court more than 20 years after defendant was first convicted of those crimes, pursuant to the state's motion to amend the judgment under ORS 138.083(1)(a).[1]The state moved to amend the judgment to include the grid block scores and presumptive sentences for the two counts of attempted aggravated murder (Counts 5 and 6) that the trial court had previously announced on the record (11-D and 177 months on Count 5, and 11-D and 121 months on Count 6, respectively) but omitted from the written judgment. Defendant responded that the court should instead calculate grid block scores of 10-I on each of the attempted aggravated murder counts, because the grid block scores it had announced on the record were legally incorrect. The court granted the state's motion, rejected defendant's arguments, and entered an amended judgment that added the omitted terms but did not correct the calculation of the presumptive sentences. On review for abuse of discretion, State v. Larrance. 270 Or.App. 431, 433, 347 P.3d 830 (2015), we affirm.

         Defendant pleaded guilty and was convicted of the attempted aggravated murder, first-degree robbery, and first-degree assault crimes in 1993. The trial court found defendant to be a "dangerous offender" and imposed consecutive 30-year prison terms on the two counts of attempted aggravated murder. At the time of the sentencing, ORS 144.232(1) (1991), amended by Oregon Laws 1993, chapter 334, section 4, provided that a dangerous offender is eligible for release "after having served the presumptive sentence established under ORS 161.737." ORS 161.737 (1991), amended by Oregon Laws 1993, chapter 334, section 6, provided that a dangerous offender sentence "shall constitute a departure from the sentencing guidelines" and, when that sentence is imposed, "the sentencing judge shall indicate on the record the reasons for the departure and the presumptive sentence that would have been imposed" if the court had not departed.

         On defendant's appeal from the resulting judgment, we concluded that the trial court had erred in imposing that sentence and remanded for resentencing. State v. Dizick, 137 Or.App. 486, 491, 905 P.2d 250 (1995), rev den, 322 Or 490 (1996). We explained that the court had not, but was required to, "determine the crime seriousness classification for defendant's crimes, calculate the presumptive sentence [and] make the appropriate record as required by" the sen-tencing-guidelines rules. Id.

         In 1996, on remand from that decision, the trial court resentenced defendant. As relevant to this appeal, the court concluded that defendant's attempted aggravated murder convictions should be ranked as 11 on the crime seriousness scale, and that defendant's criminal history should be scored "D" on Count 5 and "I" on Count 6. The court further concluded that the presumptive sentences for those counts were 177 and 121 months, respectively, and it imposed dangerous offender sentences of 354 on Count 5 and 242 months on Count 6. The trial court then entered an amended judgment, which included the 354- and 242-month dangerous offender sentences, but failed to include defendant's grid block scores or the presumptive sentences.

         Defendant appealed that judgment, asserting that the state had erred with respect to a "gun minimum" term imposed on one of defendant's convictions for first-degree robbery with a firearm. The state agreed with defendant, and the parties filed a joint motion to remand the case to the trial court; defendant then voluntarily dismissed his appeal. Another amended judgment was entered correcting the gun minimum provision.

         Subsequently, defendant filed a motion for postconviction relief in which he argued that his dangerous offender sentences were unlawful under the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The postconviction court denied his petition, this court affirmed, and the Supreme Court denied review. Dizick v. Lampert, 185 Or.App. 109, 57 P.3d 952 (2002), rev den, 335 Or 266 (2003).

         Then, in 2008, defendant requested a parole-consideration hearing on his sentences in this case. The Board of Parole and Post-Prison Supervision denied defendant's petition. The board concluded that defendant's "presumptive term [was] the same as the full sentence on both counts of aggravated murder, " because that was what was reflected on the face of the judgment-and the Department of Corrections "face sheet" stating those terms-and it lacked authority to calculate a presumptive sentence different from the sentence provided by the trial court on the face of the judgment. Dizick v. Board of Parole, 260 Or.App. 229, 233, 317 P.3d 911 (2013). The board then set a ...


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