Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Ortega-Gonzales

Court of Appeals of Oregon

August 30, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DEREK ORTEGA-GONSALEZ, aka Derek Ortega-Gonzales, Defendant-Appellant.

          Submitted September 6, 2016

         Klamath County Circuit Court 1301085CR; Roxanne B. Osborne, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Shorr, Judge, and Aoyagi, Judge.

         Case Summary: Defendant was convicted of one count of racketeering, ORS 166.720(1) (Count 1), and fve counts of unlawful delivery of methamphetamine, ORS 475.890 (Counts 6, 7, 8, 9, and 10). On appeal, defendant frst contends that the trial court erred when it reconstituted his criminal history score on Counts 6 and 7 based on his conviction on Count 1 because, defendant argues, those counts are part of the same criminal episode. Defendant also claims that the trial court erred when it sentenced Counts 6 and 7 consecutively to Count 1. Held: First, the trial court erred when it reconstituted defendant's criminal history score on Counts 6 and 7 based on his conviction for Count 1 because those counts are part of the same criminal episode. Crimes are from the same criminal episode when the principles of former jeopardy require that those crimes be prosecuted together. In this case, under State v. Lyons, 161 Or.App. 355, 985 P.2d 204 (1999), the state could not have frst prosecuted defendant for Count 1 and then later prosecuted him for Counts 6 and 7 because Counts 6 and 7 were based on the same facts that the state alleged to establish predicate acts in Count 1. Second, to the extent that defendant's second assignment of error is preserved, the trial [287 Or.App. 527] court did not err. A trial court may impose consecutive sentences for racketeering and its predicate offenses.

         [287 Or.App. 528] SHORR, J.

         Defendant appeals a judgment of conviction for one count of racketeering, ORS 166.720(1) (Count 1), and five counts of unlawful delivery of methamphetamine, ORS 475.890(2) (Counts 6, 7, 8, 9, and 10). On appeal, defendant raises two assignments of error, both regarding the sentences that the trial court imposed as to Counts 6 and 7. Defendant contends that the trial court erred when it calculated his criminal history score on Counts 6 and 7, and that the trial court erred when it sentenced Counts 6 and 7 consecutively to Count 1. As to defendant's first assignment of error, we agree that the trial court erred when it recalculated defendant's criminal history score on Counts 6 and 7 after first considering his conviction for Count 1 as a prior conviction in defendant's criminal history. However, as to defendant's second assignment of error, we conclude that the trial court did not err when it ordered the sentences on Counts 6 and 7 be served consecutively to Count 1.

         This case is based on a series of transactions in which an agent from the Bureau of Alcohol, Tobacco, and Firearms (BATF) purchased two and one-half pounds of methamphetamine and 14 guns from defendant over the span of approximately five months. During this time, the BATF agent learned that defendant was part of a "family network" that spanned "Mexico to Utah to Fresno to Yakima." That network provided defendant with connections to multiple sources and large quantities of methamphetamine. Defendant was charged by indictment with two counts of racketeering, ORS 166.720(1) and (4), and eight counts of unlawful delivery of methamphetamine, ORS 475.890(2).

         Defendant subsequently pleaded guilty to Counts 1, 6, 7, 8, 9, and 10 of the first amended indictment.[1] Count 1, racketeering, alleged that, "on or between October 1, 2012 and May 14, 2013, " defendant "unlawfully and intentionally" participated in an "enterprise through a pattern of racketeering activity" that consisted of two or more of the eight listed predicate acts. The facts of the eight listed predicate acts as to Count 1 also form the factual basis for the [287 Or.App. 529] charges of unlawful delivery of methamphetamines alleged in Counts 3 through 10.

         At sentencing, the state requested that defendant be sentenced to a total of 216 months in prison; the trial court imposed a total sentence of 205 months based on the following. First, the court determined defendant's grid block on the Oregon Felony Sentencing Guidelines Grid for Count 1 and concluded that defendant's criminal history score for Count 1 was "I" because he had "no criminal history" prior to his involvement in this case. Next, the court assigned a crime seriousness score as to Count 1. Based on the quantity of drugs and weapons involved in the transactions, the court concluded that the seriousness score of the racketeering charge was 11. The court remarked, "I think that it's my responsibility to send a clear message to the community that this behavior is not going to be tolerated" because "I have never had someone in front of me who dealt this much drugs in my community." Applying defendant's just determined criminal history score on Count 1 to Count 6, the court concluded that defendant's grid block was 9-G and imposed 40 months' prison, to be served consecutively to the sentence on Count 1. On Count 7, the court, now using the two felonies in Counts 1 and 6 as part of defendant's criminal history, concluded that defendant was a 9-F on the grid and sentenced him to 45 months to be served consecutively to the sentence on Count 6. On Counts 8, 9, and 10, the court imposed concurrent sentences: Count 8 (grid block 8-F, 24 months' prison), Count 9 (grid block 9-E, 50 months' prison), and Count 10 (grid block 9-E, 50 months' prison).

         On appeal, defendant advances two assignments of error. First, defendant contends that the trial court erred when it increased his criminal history score on Counts 6 and 7 based on Count 1 because, under ORS 131.505(4), Counts 6 and 7 are from the "same criminal episode" as Count 1. Second, defendant contends that the trial court erred when it ordered that defendant's sentences on Counts 6 and 7 were to be served consecutively to the sentence on Count 1 because the racketeering charge and its predicates form a "continuous and uninterrupted" course of conduct under ORS 137.123(2), meaning that they could not be sentenced [287 Or.App. 530] consecutively without findings under ORS l37.l23(5)(a) or (b), which the trial court did not make.

         As a preliminary matter, we reject the state's argument that any error as to defendant's first assignment of error was harmless. We will affirm a judgment even though we determine that the trial court erred in sentencing when the record shows that the trial court could have imposed the same total sentence without the error and we are "completely confident" that the trial court would impose the same sentence if the case were remanded for resentencing. State v. Calderon-Ortiz. 222 Or.App. 1, 8, 191 P.3d 808 (2008), rev den, 345 Or. 618 (2009). Although the record in this case demonstrates that the trial court wanted to "send a clear message to the community" that this type of behavior would not be tolerated, we cannot be sure that the exact number of months in prison that the trial court imposed, 205, had any significance beyond being the total of the aggregated sentences. Indeed, the trial court did not sentence defendant to the 216 months in prison requested by the state. Here, unlike in Calderon-Ortiz, in which we were "completely confident" that the trial court would impose the same sentence on remand when the trial court stated at sentencing, "I want to get to the 180 months, " it is unclear whether the trial court had 205 months as a specific sentencing goal-or whether that was merely the total of the sentences imposed. See 222 Or.App. at 4. Consequently, we cannot conclude that the court would impose the same sentence on remand, and therefore any error as to the first assignment of error was not harmless. See State v. Carter. 272 Or.App. 161, 163, 354 P.3d 764 (2015) (remanding for resentencing when we were not certain that the court would impose the same sentence even though they could).

         Defendant's first assignment of error presents a question of law, although the answer may depend on "predicate findings of historical fact." State v. Potter, 236 Or.App. 74, 82, 234 P.3d 1073 (2010). Nearly all felonies in Oregon have a corresponding presumptive sentence on Oregon's sentencing guidelines grid, determined by the intersection of the number corresponding to the crime seriousness score and the letter corresponding to the individual defendant's [287 Or.App. 531] criminal history score. State v. Cuevas, 358 Or. 147, 149, 361 P.3d 581 (2015).

         Generally, the trial court calculates a defendant's criminal history score based on multiple factors, including the number and severity of the defendant's prior convictions. Id. at 161; OAR 213-004-0006. When multiple convictions are sentenced in a single sentencing proceeding, the trial court may include the sentence imposed on the first-sentenced conviction as part of the defendant's criminal history in determining the sentence for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.