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State v. Frinell

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
STERLING MAXWELL FRINELL, Defendant-Appellant.

          Submitted August 23, 2016

         Clatsop County Circuit Court 131173; Cindee S. Matyas, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Defendant 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.

          [290 Or. 298] AOYAGI, J.

         Defendant 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.

         After 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).

         In line 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.[1] 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 attorney fees.

         In his 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.

         As a 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 (2015).

         Four 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 sentencing ...


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