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State v. Decleve

Court of Appeals of Oregon

September 25, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIC FRANCISCO DECLEVE, Defendant-Appellant.

          Submitted April 30, 2018.

          Lincoln County Circuit Court 972222; Thomas O. Branford, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, 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 Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for two counts of rape in the second degree, ORS 163.365, and two counts of delivery of a controlled substance to a minor, ORS 475.906, challenging the sentence imposed after a guilty plea. Specifcally, defendant contends that the trial court erred when it failed to apply the "200 percent" rule from OAR 213-012-0020(2)(b) after it applied the "shift-to-I" rule from OAR 213-012-0020(2)(a)(B). Although defendant did not preserve that argument, he contends that the trial court plainly erred and that the Court of Appeals should exercise its discretion to correct that error. Held: The trial court plainly erred. The Court of Appeals has repeatedly held that if a trial court applies the "shift-to-I" rule, it must also apply the "200 percent rule."

         [299 Or.App. 529] POWERS, J.

         In this criminal case, we address whether a trial court commits plain error when it sentences a defendant using the "shift to I" rule required by OAR 213-012-0020 (2)(a)(B), but neglects to apply the "200 percent rule" in OAR 213-012-0020(2)(b). Defendant asserts that the trial court committed plain error and that we should exercise our discretion to correct the error as we have done in prior similar cases. The state argues that we should decline plain-error review, because the record is not clear that the court should have used the shift-to-I rule in the first place and, had defendant raised the 200-percent rule at sentencing, the parties would have had an opportunity to develop the record further to determine whether those rules applied under the circumstances of this case. As explained below, we agree with defendant's arguments and remand for resentencing.

         The pertinent facts are undisputed. In 1997, defendant, who was 24 years old at the time, enticed four young girls who were skipping their middle school classes to come to his home by offering them marijuana. When they arrived at defendant's home, he did not produce any marijuana, and two of the girls left.

         Defendant then proceeded to rape both girls, who were 11 and 12 years old at the time. He then produced marijuana, and both girls smoked with him. One of the girls reported the incident the following morning, which triggered an investigation. Defendant was indicted for various offenses and then absconded, even living outside the country at times.

         In 2016, defendant pleaded guilty to two counts of second-degree rape and two counts of delivering a controlled substance to a minor. At sentencing, the state argued that the sentences for the second-degree rape convictions should be consecutive, and that the sentences for the delivery convictions should be served concurrently with each other, but consecutive to the rape sentences. Defendant argued that, because the crimes took place in "one criminal episode, " the sentences for the delivery convictions should be concurrent with the second-degree rape sentences. Defendant also [299 Or.App. 530] asserted that, if the court were to impose the sentences consecutively, then the shift-to-I rule would apply to the delivery convictions.

         The trial court sentenced defendant to 75 months' incarceration on each second-degree rape conviction as required by ORS 137.700(2)(a)(L) and ordered one of the rape sentences to be served consecutively to the other.[1] Further, the trial court sentenced defendant on each of the delivery convictions to 18 months' incarceration to be served concurrently with each other, but consecutively to the rape sentences, for a total sentence of 168 months. In so doing, the court applied the shift-to-I rule when it calculated defendant's criminal history score on the delivery convictions. The court did not, however, apply the 200-percent rule, which was not raised by any party at sentencing.

         On appeal, defendant argues that the trial court committed plain error by failing to apply the 200-percent rule required by OAR 213-012-0020(2)(b) after it applied the shift-to-I rule required by OAR 213-012-0020(2)(a)(B).[2]Relying on State v. Longenecker, 175 Or.App. 33, 27 P.3d 509, rev den, 332 Or. 656 (2001), and State v. Skelton, 153 Or.App. 580, 957 P.2d 585, rev den, 327 Or. 448 (1998), defendant urges us to exercise our discretion to correct the plain error as we have done in similar cases. The state remonstrates [299 Or.App. 531] that defendant's unpreserved claim is not reviewable as plain error, because, in its view, the trial court was not required to apply either the shift-to-I rule or the 200-percent rule under the facts of this case. The state argues that the two unlawful deliveries were not part of the "same criminal episode" as the two rapes.

         To qualify for plain-error review under ORAP 5.45, an error must be: (1) an error of law; (2) obvious and not reasonably in dispute; and (3) apparent on the record without requiring an appellate court to choose among competing inferences. See, e.g., State v. Vanorum,354 Or. 614, 629, 317 P.3d 889 (2013); Ailes v. Portland Meadows, 312 Or. 376, 381-82, 823 P.2d 956 (1991). If the three-pronged plain-error test has been satisfied, we must then decide whether to exercise our ...


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