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State v. Reinke

Court of Appeals of Oregon

November 22, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
LEONARD LLOYD REINKE, Defendant-Appellant.

          Argued and submitted April 26, 2016.

         Multnomah County Circuit Court 090130185; Kelly Skye, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Doug M. Petrina, 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 Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction, challenging the sentence that he received on remand after a successful appeal. In defendant's initial appeal, the Court of Appeals concluded that the dangerous-offender sentence of 280 months for one of defendant's convictions was erroneous and reversed and remanded for resentencing. Defendant was resentenced by a different judge, who relied on the initial sentencing court's dangerous-offender finding and sentenced defendant to a 30-year indeterminate sentence with a 120-month minimum determinate sentence. Defendant first contends that the resentencing court violated his due process rights by increasing his sentence on remand without articulating adequate grounds to justify the increase. Second, defendant contends that the court could not rely on the original dangerous-offender finding because, although defendant had waived his right to a jury trial in the initial proceeding, he had not done so on remand.

         Held:

         The resentencing court did not violate defendant's due process rights, because it recognized that defendant's initial sentence was legally erroneous and articulated "wholly logical, nonvindictive reasons" for the longer [289 Or.App. 11] sentence that it imposed on remand. Second, the resentencing court did not err by relying on the finding that defendant is a dangerous offender, because the reversal of defendant's original sentence did not reverse the trial court's finding that defendant is a dangerous offender.

         Affirmed.

         [289 Or.App. 12] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for, among other things, second-degree kidnapping, ORS 163.225, challenging the sentence that he received on remand after a successful appeal.[1] In the proceeding that led to the initial appeal, the court had convicted defendant of various crimes and, with regard to the kidnapping conviction, had found defendant to be a dangerous offender. In the initial appeal, State v. Reinke, 245 Or.App. 33, 260 P.3d 820 (2011) (Reinke I), aff'd , 354 Or. 98, 309 P.3d 1059, adh'd to as modified on recons, 354 Or. 570, 316 P.3d 286 (2013) (Reinke II), we concluded that defendant's dangerous-offender sentence of 280 months on the kidnapping charge was erroneous and reversed and remanded for resentencing.[2] Defendant was resentenced on remand by a different judge from the judge who had imposed the initial sentence. However, the resentencing court relied on the initial sentencing court's finding under ORS 161.725 to 161.737 that defendant is a dangerous offender and, based on that finding, sentenced defendant to a 30-year indeterminate sentence with a 120-month minimum determinate sentence on the kidnapping conviction.

         Defendant challenges his new dangerous-offender sentence on two grounds. First, he contends that the resentencing court erred under the principles established in State v. Partain, 349 Or. 10, 239 P.3d 232 (2010), by increasing his sentence on remand without articulating adequate grounds to justify the increase. The state responds, and we agree, that the record is sufficient to support the decision by the resentencing court to impose the sentence that it did. Second, defendant contends that the resentencing court could not rely on the dangerous-offender finding made by the initial sentencing court because, although defendant had waived his right to a jury trial in the initial proceeding, the jury [289 Or.App. 13] waiver and concomitant finding by the initial sentencing court that defendant was a dangerous offender could not be applied on resentencing. We disagree. The scope of the remand for resentencing did not require the resentencing court to empanel a jury to determine whether defendant is a dangerous offender for the court to sentence defendant as a dangerous offender. Accordingly, we affirm.

         The facts relevant to this appeal are procedural and undisputed. After waiving his right to a jury trial, defendant was convicted by the trial court of, among other things, second-degree kidnapping. The court thereafter found, for purposes of sentencing defendant on his kidnapping conviction, that he is a dangerous offender. The state argued at sentencing that the maximum dangerous-offender sentence that the court could impose was capped by the "400 percent rule" at four times the presumptive sentence on the kidnapping conviction.[3] Because the state understood the presumptive sentence on the kidnapping conviction to be 70 months, [4] the state asked the court to sentence ...


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