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State v. Sierra

Supreme Court of Oregon

August 10, 2017

STATE OF OREGON, Respondent on Review,
v.
JOAQUIN SIERRA, Petitioner on Review.

          Argued and submitted May 8, 2017

         On review from the Court of Appeals, CC 05C40355; CA A153534.[*]

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

          Timothy A Sylwester, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices, and Baldwin, Senior Justice pro tempore. [**]

         [361 Or. 724] Case Summary:

         Defendant was convicted of nine offenses and sentenced to 250 months in prison. On review, this court reversed two of defendant's convictions and remanded the case to the trial court for resentencing. State v. Sierra, 349 Or. 506, 254 P.3d 149 (2010), adh'd to as modifed, 349 Or. 604, 247 P.3d 759 (2011). On remand, before a different judge, the state sought upward departure sentences based on enhancement factors found by the jury. The second sentencing court imposed a total sentence of 276 months-an increase of 26 months over the original sentence. Defendant appealed, arguing that (1) the Smith rule and the Double Jeopardy Clause of the federal constitution prevented the sentencing court from applying ORS 138.222(5)(b) and imposing new sentences on defendant's UUW convictions because defendant had served the original sentences on those counts; and (2) under Pearce and Partain, the Court of Appeals was required to presume that the second sentencing judge had acted vindictively and that due process therefore precluded imposition of a more severe sentence. The Court of Appeals affirmed the judgment of the trial court, and defendant petitioned for review by this court. In a unanimous opinion, the Supreme Court held that (1) the common-law rule of State v. Smith, 323 Or. 450, 918 P.2d 824 (1996), and the Double Jeopardy Clause of the United States Constitution did not prevent the trial court from resentencing defendant on all of the convictions that remained on remand, pursuant to ORS 138.222(5)(b); and (2) when a different judge resentences a defendant on remand and the sentence is more severe than the sentence originally imposed, the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 11 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and this court's decision in State v. Partain, 349 Or. 12 10, 239 P.3d 232 (2010), require that the second sentencing court articulate the reasons for the increased sentence on the record, and that those reasons be "wholly logical" and "nonvindictive."

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

         [361 Or. 725] WALTERS, J.

         This court reversed two of defendant's nine convictions and remanded the case for resentencing on the remaining convictions. State v. Sierra, 349 Or. 506, 254 P.3d 149 (2010), modified and adh'd to on recons. 349 Or. 604, 247 P.3d 759 (2011). On remand, a different judge, who did not preside over defendant's original trial, imposed a longer total sentence than had the original trial court. This case requires us to decide two issues: first, whether Oregon common law or the federal Double Jeopardy Clause precludes the second sentencing court from imposing new sentences on defendant's convictions for unlawful use of a weapon (UUW) because defendant already had served the previously imposed sentences; and second, whether the Due Process Clause, as interpreted by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and by this court in State v. Partain, 349 Or. 10, 239 P.3d 232 (2010), precludes the imposition of a more severe sentence than originally imposed. The answer to both questions is no. We affirm the decisions of the trial court and the Court of Appeals, State v. Sierra, 278 Or.App. 96, 374 P.3d 952 (2016).

         I. BACKGROUND

         A jury convicted defendant of nine offenses: one count of first-degree kidnapping; two counts of second-degree kidnapping; one count of fourth-degree assault; and five counts of unlawful use of a weapon (UUW). The state did not allege enhancement factors. The trial court sentenced defendant to a total of 250 months in prison. The court imposed a 110-month sentence on the conviction for first-degree kidnapping, two consecutive 70-month sentences on the convictions for second-degree kidnapping, and concurrent sentences of 14 months or less on the remaining convictions (including all of defendant's UUW convictions). On review, this court concluded that the evidence did not support the convictions for two counts of second-degree kidnapping because the state had failed to prove the act element. Sierra, 349 Or at 518. The court reversed defendant's convictions on those counts and remanded the case to the [361 Or. 726] trial court for resentencing. Sierra, 349 Or at 607 (modified and adh'd to on recons).

         On remand, before a different judge, the state sought an upward departure sentence on defendant's conviction for first-degree kidnapping, as well as longer sentences than originally imposed on the other convictions. On the kidnapping conviction, the state alleged, and the sentencing jury found, four enhancement factors-the use of a weapon; threat of or actual violence towards a witness; prior sanctions should have deterred defendant's criminal conduct and did not; and incarceration is necessary for public safety. Based on the jury's findings, the state sought, by upward departure, a sentence of 220 months on that count-an increase of 110 months over defendant's original sentence. The state also asked the court to place four of defendant's UUW convictions (counts 5, 7, 10, and 11) into gridblock 6-D and impose the 14-month presumptive sentence on each and to require defendant to serve those four sentences consecutively to each other and to the 220-month sentence imposed on the kidnapping conviction, for a total sentence of 276 months.

         Defendant objected under Partain, arguing that the imposition of a longer total sentence would be presumed vindictive because the second sentencing court would not be basing its sentence on information unknown to the first court at the time of the original sentencing. Defendant also contended that the common-law rule of State v. Smith, 323 Or. 450, 918 P.2d 824 (1996), prevented the sentencing court from imposing new sentences on any of the UUW convictions because defendant had fully served the sentences originally imposed on those counts. Finally, defendant argued that revisiting a completely served sentence would deny him due process and the swift and complete administration of justice, under Article I, section 10, of the Oregon Constitution.[1]

         The sentencing court overruled defendant's objections and imposed the sentence requested by the state. The [361 Or. 727] court explained that defendant's sentence complied with the Partain requirements because the court had based the increased sentence on information not available to the first court: the apparent continued impact of the crimes on the victims and defendant's prison disciplinary record. The court also explained that it was imposing an upward durational departure sentence on the first-degree kidnapping conviction based on the enhancement factors found by the jury, and that the sentences requested by the state on the UUW convictions were appropriate under the sentencing guidelines.

         Defendant appealed to the Court of Appeals, arguing that (1) the Smith rule and the Double Jeopardy Clause of the federal constitution prevented the sentencing court from applying ORS 138.222(5)(b) and imposing new sentences on any of the UUW convictions; and (2) under Pearce and Partain, the Court of Appeals was required to presume that the judge on remand had acted vindictively and that due process precluded imposition of a more severe sentence. The Court of Appeals rejected defendant's arguments, holding that the Smith rule did not bar the trial court from applying ORS 138.222(5)(b) and modifying defendant's UUW sentences on remand and that the trial court had satisfied the Pearce/Partain requirements. Sierra, 278 Or at 100-105. The court also held that defendant's double jeopardy argument was not preserved and did not warrant plain error review. Id. at 98.[2]

         Defendant petitioned for review in this court, renewing the arguments presented before the Court of Appeals. We allowed defendant's petition.

         [361 Or. 728] II. ANALYSIS

         A. Defendant's Objections to Increases in His Sentence Based on Crimes of UUW

         1. Defendant's common-law argument

         We turn, first, to defendant's common-law argument, because our ordinary practice is to analyze state law claims before reaching a party's federal constitutional claims. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). Defendant contends that the common-law Smith rule, which prohibits a sentencing court from modifying a sentence that has been served, precluded the trial court from imposing a new sentence on defendant's UUW convictions. The state responds that the legislature partially overruled Smith when it enacted what is now codified as ORS 138.222(5)(b). That statute provides that, when an appellate court reverses the judgment of conviction on any count in a multi-count case in which at least one count is a felony, "the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts." ORS 138.222(5)(b) (emphasis added). According to the state, in the limited circumstance in which a court reverses one or more convictions and affirms the other convictions, and the court does not otherwise rule that any of the sentences were imposed in error, ORS 138.222(5)(b) has supplanted Smith to require that the court remand the case for resentencing on all remaining counts.

         In Smith, the defendant was convicted of numerous felony and misdemeanor offenses and received a sentence of consecutive and concurrent sentences totaling 120 months. 323 Or at 452. After the Court of Appeals affirmed the defendant's convictions but reversed the sentences on some convictions, State v. Smith, 116 Or.App. 558, 563, 842 P.2d 805 (1992), adh'd to on recons, 120 Or.App. 438, 852 P.2d 934 (1993), the defendant was resentenced to 102 months in prison. Smith, 323 Or at 452. The defendant then appealed from the amended judgment, arguing that the sentencing court had erred when it imposed new consecutive sentences on some of his misdemeanor convictions because he already had served the original sentences on those convictions at the time of the resentencing. Id. at 452-53. On review, this [361 Or. 729] court recognized the common-law rule that "a sentencing court lacks the authority to modify a valid sentence once the original sentence has been executed" and determined that the same result follows "when the original sentence not only has been executed, but also has been served." Id. at 453-54.

         Defendant and the state agree that, in response to the Court of Appeals decision in Smith, the legislature amended ORS 138.222(5)(a), which governs the scope of review of sentences imposed on felony convictions, to expressly authorize a remand for resentencing of the entire case when an appellate court determines that there has been a sentencing error. The amended provision provides,

"The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court's factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case!'

ORS 138.222(5)(a); Or Laws 1993, ch 692, § 1 (added language italicized). As this court recognized in Partain, that amendment "unambiguously provides that, when a case is remanded because of a particular sentencing error, the sentencing court may impose different sentences on any and all counts-even those not affected by the identified error." 349 Or at 19.

         In 2005, the legislature enacted ORS 138.222(5)(b). Or Laws 2005, ch 563, § 2. That provision applies when an appellate court reverses the judgment of conviction on any count in a multi-count case, where at least one count is a felony. ORS 138.222(5)(b) provides,

"If the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for ...

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