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State v. Hainline

Court of Appeals of Oregon

January 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JEFFREY CHARLES HAINLINE, Defendant-Appellant.

          Submitted December 7, 2018

          Clackamas County Circuit Court 16CR29324; Eve L. Miller, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Remanded for resentencing; otherwise affirmed.

         [295 Or.App. 838] PER CURIAM.

         Defendant appeals a judgment of conviction for five counts of first-degree sexual abuse. Defendant challenges his sentence, arguing that the trial court plainly erred in basing its sentencing decision, in part, on defendant's exercise of his right to a trial. The state concedes that the trial court plainly erred. We agree, accept the state's concession, and remand for resentencing; we otherwise affirm.

         Defendant was indicted on 10 counts of first-degree sexual abuse of defendant's two daughters. Defendant waived a jury trial and his case was tried to the court. The court convicted defendant of five of those counts. During sentencing, in considering whether to order consecutive terms of incarceration, the trial court stated:

"[T]he fact that you did put your daughters through additional trauma by forcing them to take the witness stand, and, obviously, they were traumatized by it. And at no time did you seem to want to-to save them from having to be traumatized further, it does bear some weight on the Judgment that I'm going to render and the sentence I'm going to render.
"And I say that not to punish you for exercising your right to a jury trial but to, I guess, point out that it reflects a rather calloused and narcissistic view that this is about you and not about somebody you've caused harm to.
"So I've gone back and forth. Initially it appeared to me that one 75-month sentence for each of the children, and have them run consecutive would be significant and sufficient. So I just want to spend a moment reflecting on whether I make a third one consecutive or in part consecutive and concurrent."

         The court then sentenced defendant to 75 months of incarceration on each of Counts 1 and 2 to run concurrently, 75 months on Count 5 to run consecutive to Count 1, 75 months on Count 7 to run consecutive to Count 5 for 25 months, and 75 months on Count 10 to run concurrently to all other counts, for a total of 175 months.

         On appeal, defendant argues that the trial court plainly erred by imposing a sentence based, in part, on the [295 Or.App. 839] improper consideration that defendant had exercised his right to trial. The state concedes that the trial court plainly erred when it stated that defendant's decision to go to trial and require his daughters to testify would "bear some weight" on its sentencing decision, because that statement "improperly created an inference ...


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