Submitted April 30, 2018.
Lincoln County Circuit Court 972222; Thomas O. Branford,
G. Lannet, Chief Defender, Criminal Appellate Section, and
David O. Ferry, Deputy Public Defender, Offce of Public
Defense Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Timothy A. Sylwester, Assistant Attorney
General, fled the brief for respondent.
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
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."
Or.App. 529] POWERS, J.
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.
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
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.
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.
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. 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.
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).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.
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 ...