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State v. Febuary

Supreme Court of Oregon, En Banc

June 22, 2017

STATE OF OREGON, Respondent on Review,
ROGER ROBERT FEBUARY, Petitioner on Review.

          Argued and submitted January 12, 2017.

         On review from the Court of Appeals CC 080982, CA A154662. [*]

          David O. Ferry, Deputy Public Defender, Salem, argued the cause and fled the brief for the petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

          Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [361 Or. 545] Case Summary: Defendant was convicted of five counts. The convictions were reversed on appeal and remanded. On remand, defendant pled guilty to two of the original five counts. At resentencing, the trial court imposed a new sentence that was shorter in total than the original sentence, but included a sentence of 12 months' imprisonment on a misdemeanor count that had originally carried a sentence of probation only. Defendant challenged the new sentence as violating the rule against vindictiveness set out in State v. Partain, 349 Or. 10, 239 P.3d 232 (2010), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Court of Appeals affirmed, concluding that defendant's second sentence did not trigger the "presumption of vindictiveness." Held: A "presumption of vindictiveness" applies when a second sentence in aggregate is longer than the first sentence in aggregate; therefore, defendant's second, shorter sentence did not violate the rule against vindictiveness.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [361 Or. 546] BALMER, C. J.

         The prophylactic rule of State v. Partain. 349 Or. 10, 239 P.3d 232 (2010), protects against vindictiveness in the resentencing of a criminal offender after a successful appeal. Partain, in turn, was based on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where the United States Supreme Court held that due process "requires that vindictiveness against a defendant for having successfully attacked [a] first conviction must play no part in the sentence [the defendant] receives after a new trial." Id. at 725. In this case, the specific issue is how Partain and Pearce apply if an offender's total sentence has decreased after resentencing, but a sentence imposed for one of several individual counts has increased. A separate and preliminary issue is whether this court and the Court of Appeals have jurisdiction to hear this case and review defendant's claims. We conclude that the appellate courts have jurisdiction to consider defendant's appeal. On the merits, we conclude that defendant's sentence does not violate the rule against vindictiveness.


         A jury found defendant guilty of five crimes relating to an incident where defendant provided a minor with alcohol and sexually abused her. Defendant was convicted and sentenced as follows: two terms of 75 months' imprisonment for two counts of sexual abuse in the first degree, ORS 163.427; 20 months' imprisonment for one count of attempted sodomy in the second degree, ORS 163.395; 60 months' probation for one count of providing alcohol to a person under 21 years of age, ORS 471.410(2); and 60 months' probation for one count of sexual harassment, ORS l66.O65(4)(a). The sentencing court ordered that the three prison terms run consecutively and that the probation terms run concurrently. In total, defendant was sentenced to 170 months' imprisonment and 60 months' probation. Defendant appealed and the Court of Appeals reversed because of evidentiary error at trial. State v. Febuary, 253 Or.App. 658, 666, 292 P.3d 604 (2012) (Febuary I).

         On remand, defendant made a plea bargain with the state. Defendant pled guilty to one count of sexual abuse [361 Or. 547] in the first degree and one count of providing alcohol to a person under 21. The state dismissed the remaining three charges. The state asked for a sentence of 12 months on the providing alcohol conviction, on which the defendant originally had received only probation. Defendant argued that imposing any sentence of imprisonment on the providing alcohol count was vindictive and would violate his due process rights under Pearce.

         After hearing arguments, the court sentenced defendant to 75 months' imprisonment on the sexual abuse count and 12 months' imprisonment on the providing alcohol count, to run consecutively. As a result, his final sentence was 87 months in prison. The judge stated that he had a "non-vindictive reason" for changing the sentence on the providing alcohol count: the nature of defendant's crime, which he described as "malicious" and "profoundly offensive." The judge explained that defendant's crime was not "just a matter of leaving a jug of whiskey on the coffee table for a child to use while they're watching television." Rather, defendant provided alcohol to a minor "to facilitate the commission of sex abuse in the first degree." The judge further stated that his previous decision to impose a sentence of probation for the providing alcohol conviction occurred in the context of the "overall [sentencing] scheme, " i.e., defendant's otherwise total sentence of 170 months' imprisonment. At resentencing, however, the single other count carried a sentence of 75 months. The judge explained that the shorter total sentence motivated his decision to change the sentence on the misdemeanor from probation to 12 months' imprisonment.

         Defendant again appealed, arguing that the increased sentence on the providing alcohol count was prohibited under Pearce and violated his due process rights. Defendant did not assert that the sentence violated any other statutory or constitutional limits. The Court of Appeals identified the issue as "the precise standard for measuring whether a new sentence triggers the presumption of vindic-tiveness, " which, it observed, "since the issuance of Pearce, 'has been the subject of some confusion.'" State v. Febuary, 274 Or.App. 820, 826, 361 P.3d 661 (2015) (Febuary II) (quoting United States v. Campbell, 106 F.3d 64, 67 (5th Cir 1997)). The court noted that the federal courts of appeals have split [361 Or. 548] in their resolution of that issue, with a majority of circuits applying the "aggregate approach, " which looks at whether an offender's total sentence has increased following a successful appeal and resentencing to apply the rule of Pearce. Id. A minority of circuits employ the "remainder aggregate" approach, which applies the rule of Pearce when "the new sentence on the remaining counts exceeds the original sentence on those counts."[1] Id. (quoting Campbell, 106 F.3d at 68).

         The court then analyzed our decision in Partain and concluded that, in that case, this court did not consider "the length or nature of the individual sentences that had been imposed by the trial court, but only the length of the total sentences that had been imposed." Id. at 829. Here, because the length of the total sentence decreased, the court concluded that a presumption of vindictiveness did not apply and affirmed the trial court. Id. at 832.

         Defendant petitioned for review, and we allowed the petition. After we allowed the petition, the state filed a motion to determine jurisdiction, contending that neither the Court of Appeals nor this court had appellate jurisdiction over the case. We instructed the parties to address that issue at oral argument.


         The jurisdictional issue in this case is whether an appellate court may review a defendant's due process [361 Or. 549] challenge to a misdemeanor sentence in a case where the defendant was sentenced on both misdemeanor and felony convictions, and the defendant pleaded guilty. The state argues that because defendant is challenging the increased sentence on his misdemeanor conviction for providing alcohol to a minor, his appeal is governed by ORS 138.040 and ORS 138.050, and those statutes do not permit an appeal in the circumstances present here. Responding to defendant's claim that ORS 138.222 confers jurisdiction here, the state argues that ORS 138.222 applies to the appeal and review of felonies only, and does not confer appellate jurisdiction over defendant's case because defendant seeks review of his misdemeanor sentence and not his felony sentence. Defendant asserts that ORS 138.222 confers jurisdiction here regardless of the particular arguments that he makes on appeal. We agree with defendant and conclude that ORS 138.222 confers appellate jurisdiction over this case.

         We begin with basic principles: A criminal defendant does not have an inherent right to appeal; he or she must appeal pursuant to some statute authorizing the appeal and granting the appellate court jurisdiction. State v. Cloutier, 351 Or. 68, 74, 261 P.3d 1234 (2011). Furthermore, the ability of a party to appeal a case, and of a court to hear it, is distinct from reviewability. State v. Montgomery, 294 Or. 417, 420, 657 P.2d 668 (1983). "Appealability generally is concerned with whether an appeal can be taken at all. Usually, but not always, appeals lie only from final judgments and orders. Reviewability generally involves the consideration of a variety of rulings and orders made by the court, usually before judgment." Id. (emphasis omitted). Therefore, we must conclude both that the judgment is appealable and that the claim defendant raises is reviewable.

         Our analysis in Cloutier of the statutes that allow for appeals of criminal convictions is helpful. In that case, we explained that two statutes governing criminal appeals, ORS 138.040 and ORS 138.050, do not govern appeal and review in all criminal appeals, even though the text of those provisions might suggest as much. 351 Or at 90. Rather, those statutes must be read together with later-enacted ORS 138.222. ORS 138.222(7) "begins by authorizing appeals of judgments of conviction based on a sentence for felonies [361 Or. 550] committed on or after November 1, 1989." Cloutier, 351 Or at 90. ORS 138.222(1) provides, "Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony * * * may be reviewed only as provided by this section." Based on those provisions, we concluded that ORS 138.222 governed appeal and review of sentences for felonies and therefore "ORS 138.040 and ORS 138.050 *** apply only to appeal and review of sentences for misdemeanor offenses." Cloutier, 351 Or at 91.

         What Cloutier did not address, and what we must address in this case, is how appeal and review work in cases such as this, which include both felony and misdemeanor convictions and sentences. Appeals are generally taken from "final judgments and orders, " not sentences. Montgomery, 294 Or at 420; see also ORS 138.053 (describing appealable orders and judgments in criminal cases). Here, a single judgment contains convictions and sentences for both a misdemeanor and a felony, so the question is whether ORS 138.222 or ORS 138.050 governs the appeal and review.

         Other provisions of ORS 138.222 provide for appellate jurisdiction and define the ...

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