Submitted August 23, 2016
County Circuit Court 131173; Cindee S. Matyas, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Eric Johansen, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, fled the brief for respondent.
DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi,
appeals a judgment of conviction for manslaughter, assault,
heroin possession, DUII, and reckless endangerment. Among
other things, he contends that the trial court erred in
imposing an upward dispositional departure sentence on his
conviction for possession of heroin (Count 4) without advance
notice, as required by ORS 136.765, that the state intended
to rely on enhancement facts to increase his sentence. The
state concedes that, under State v. Buehler, 206
Or.App. 167, 136 P.3d 64 (2006), it was required to give
defendant advance notice of its intent to rely on enhancement
facts to obtain a dispositional departure sentence-which it
did not do-but contends that Buehler is no longer
good law, given the United States Supreme Court's
reasoning in Oregon v. Ice, 555 U.S. 160, 129 S.Ct.
711, 172 L.Ed.2d 517 (2009). Defendant also contends, and the
state concedes, that the trial court plainly erred in
imposing court-appointed attorney fees without evidence in
the record that defendant has the ability to pay them.
Held: First, the trial court erred in imposing an
upward dispositional departure sentence on Count 4.
Buehler is not inconsistent with the reasoning of
[290 Or. 297] Ice. Second, the court plainly erred in
imposing court-appointed attorney fees, and the Court of
Appeals concluded that it was appropriate to exercise its
discretion to correct the error.
Or. 298] AOYAGI, J.
caused a traffic accident in which two people were killed and
one person was seriously injured. In connection with the
accident, he was charged and convicted of manslaughter,
assault, heroin possession, DUII, and reckless endangerment.
On appeal from the judgment, defendant asserts five
assignments of error. We reject his first three assignments
of error without discussion. For the reasons that follow, we
conclude that defendant's fourth and fifth assignments of
error, which relate to sentencing and attorney fees, are
meritorious. Accordingly, we reverse the attorney fee award
and remand for resentencing. Otherwise, we affirm.
ingesting heroin and methamphetamine, defendant fell asleep
while driving his car, crossed the center line of a road, and
collided head-on with another vehicle. The two men in the
other vehicle died at the scene. Defendant's girlfriend,
who was a passenger in his car, suffered serious injuries.
Defendant was charged with numerous crimes. After a jury
trial, he was convicted of two counts of manslaughter in the
second degree, ORS 163.125 (Counts 1 and 2); assault in the
third degree, ORS 163.165 (Count 3); possession of heroin,
ORS 475.854 (Count 4); driving under the influence of
intoxicants, ORS 813.010 (Count 5); and recklessly
endangering another person, ORS 163.195 (Count 6).
with the state's sentencing recommendation, the court
sentenced defendant to a term of 75 months' imprisonment
on Count 1; 75 months' imprisonment on Count 2; 18
months' imprisonment on Count 3; six months'
imprisonment on Count 4; six months' imprisonment on
Count 5; and six months' imprisonment on Count 6. All of
the terms were to be served consecutively, except that the
term for Count 6 was to be served concurrently with that for
Count 3. The sentence on Count 4 was a dispositional
departure. Defendant's presumptive sentence for
that count [290 Or. 299] under the sentencing guidelines was
18 months' probation, but the court instead sentenced him
to six months' imprisonment. The court explained that it
did so both because defendant would be in prison on the other
convictions and therefore unavailable for supervision and
because of the impact of defendant's crimes. The court
also imposed a term of post-prison supervision, and it
ordered defendant to pay restitution, fines, and $4, 600 in
fourth assignment of error, defendant asserts that the trial
court erred in sentencing him to six months' imprisonment
on Count 4. As he did below, defendant argues on appeal that
it was error for the court to impose a dis-positional
departure sentence on Count 4 without advance notice, as
provided in ORS 136.765, that the state intended to rely on
enhancement facts to increase his sentence. The state
concedes that it did not give any notice of enhancement facts
to defendant, but it contends that no notice was required
under ORS 136.765.
starting point to address ORS 136.765, it is necessary to
understand the line of United States Supreme Court cases that
underpins it, beginning with Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as well
as some of our own caselaw. In Apprendi, the Court
held that, under the Sixth Amendment to the United States
Constitution, "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt."
Id. at 490. "[T]he Court adopted the rule
in Apprendi to address determinate sentencing
schemes that defined the maximum sentence for an offense but
permitted a trial court to enhance the sentence for that
offense if the trial court found certain 'sentencing
factors' by a preponderance of the evidence."
State v. Cuevas, 358 Or. 147, 159, 361 P.3d 581
years later, in Blakely v. Washington,542 U.S. 296,
303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court
clarified "that the 'statutory maximum' for
Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant." (Emphasis
omitted.) Thus, the Court [290 Or. 300] held that the rule of
Apprendi precludes judicial factfmding under a