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State v. Guzman

Supreme Court of Oregon, En Banc

December 27, 2019

STATE OF OREGON, Respondent on Review,
v.
RICKY LEE GUZMAN, Petitioner on Review. STATE OF OREGON, Respondent on Review,
v.
TIMOTHY JAMES HECKLER, Petitioner on Review.

          Argued and Submitted June 6, 2019

          On review from the Court of Appeals, (CC 15CR52393), (CA A164152), (CC 16CR33772), (CA A163979). [*]

          Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and fled the briefs for petitioners on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Robert M. Wilsey, Assistant Attorney General, Salem, argued the cause and fled the briefs for respondent on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [366 Or. 19] In State v. Guzman, S066328, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. In State v. Heckler, S066373, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         Case Summary:

         Defendants unsuccessfully moved to exclude certain prior convictions, arguing that those convictions were not "statutory counterparts" to ORS 813.010 that could raise the seriousness of their present driving under the influence of intoxicants offense under ORS 813.011. The Court of Appeals affirmed in both cases. Held: (1) For a foreign conviction to be a statutory counterpart to ORS 813.010 for the purposes of ORS 813.011 the conviction must be for an offense with elements that closely match those of ORS 813.010; (2) defendant Guzman's Kansas conviction was not under a statutory counterpart to ORS 813.010; (3) defendant Heckler's Colorado convictions were not under a statutory counterpart to ORS 813.010.

         [366 Or. 20]NELSON, J.

         These consolidated cases concern two defendants who were convicted of driving under the influence of intoxicants (DUII), a crime that is ordinarily a misdemeanor but that, in each case, was elevated to a felony based on the defendant's two prior convictions from other jurisdictions. See ORS 813.011 (DUII is a Class C felony if the person has been convicted at least two times in the past ten years of DUII in violation of ORS 813.010 or its statutory counterpart in another jurisdiction). The question before us is whether the foreign laws under which defendants were convicted are "statutory counterparts" to ORS 813.010, the statute criminalizing DUII in Oregon. After analyzing the relevant statutes, we conclude that the appropriate inquiry requires "close element matching," State v. Carlton, 361 Or. 29, 42, 388 P.3d 1093 (2017), between ORS 813.010 and the foreign offense, an approach that we have previously employed in giving legal effect to convictions from other jurisdictions. Applying that standard to defendants' foreign convictions, we conclude that none of the convictions at issue in this case were under a statutory counterpart to ORS 813.010.

         I. BACKGROUND

         A. State v. Guzman

         Defendant Guzman was charged by indictment with felony DUII and other crimes. With respect to the DUII charge, the indictment alleged that Guzman had two prior convictions for DUII from other jurisdictions, including a 2015 Kansas conviction. Guzman moved to exclude the Kansas conviction, contending that it was not a "statutory counterpart" to ORS 813.010 and therefore could not be a basis for treating his Oregon offense as a felony.

         Guzman argued that the statute under which he had been convicted, Kan.Stat Ann § 8-1567(a), was broader than ORS 813.010 in two respects: it applied to "attempting to operate any vehicle" and it allowed conviction based on a blood alcohol concentration of .08 "as measured within three hours of the time of operating or attempting to operate a vehicle." Both, he argued, made Kan.Stat Ann § 8-1567(a) meaningfully broader than ORS 813.010, with the result [366 Or. 21] that it could not be a statutory counterpart. The state argued, relying on State v. Mersman, 216 Or.App. 194, 172 P.3d 654 (2007), rev den, 344 Or. 390 (2008), that those differences in statutory elements did not matter, because Kan.Stat Ann § 8-1567(a) shared a "use, role, or characteristics" with ORS 813.010.

         The trial court denied Guzman's motion and ruled that the Kansas conviction was admissible to prove that defendant had two prior convictions for DUII or a statutory counterpart in another jurisdiction. Guzman was tried by a jury. At trial, the state introduced records of Guzman's foreign convictions, including his Kansas conviction, as exhibits, and the jury found him guilty of felony DUII based on those records.

         Guzman appealed, assigning error to the trial court's denial of his motion to exclude the Kansas conviction.[1] He argued that Mersman, and subsequent Court of Appeals cases, had been overruled by this court's decision in Carlton, 361 Or. 29, which had been decided after Guzman's trial. In light of Carlton, Guzman argued, the term "statutory counterpart" in ORS 813.011 applied only to foreign offenses virtually identical to ORS 813.010.

         The Court of Appeals disagreed, stating without explanation that Carlton did not overrule Mersman and concluding that Guzman's Kansas conviction was properly considered a conviction under a statutory counterpart. State v. Guzman, 294 Or.App. 552, 432 P.3d 387 (2018).

         Guzman petitioned for review, which we allowed.

         B. State v. Heckler

         Defendant Heckler was charged by indictment with felony DUII and reckless driving. With respect to the DUII offense, the indictment alleged that he had previously been "convicted of driving while under the influence of intoxicants in violation of the laws of this state or another jurisdiction at least two times in the ten years prior to the date [366 Or. 22] of the current offense." The indictment listed two separate Colorado convictions, which occurred in 2006 and 2010.

         Prior to trial, Heckler moved to exclude both prior convictions. He noted that both convictions had been for violations of Colo Rev Stat § 42-4-1301(1)(b), which defines the offense of "driving while ability impaired." That offense, he argued, was a lesser included offense of Colorado's principal offense of "driving under the influence," Colo Rev Stat § 42-4-1301(1)(a), and was therefore not a "statutory counterpart" to ORS 813.010. Relying on Mersman, the state responded by arguing that the Colorado offense had the same "use, role, or characteristics" as ORS 813.010 and was therefore a statutory counterpart. The trial court ruled for the state and did not exclude the convictions.

         Heckler entered a conditional no contest plea to felony DUII, reserving his right to challenge the trial court's pretrial ruling on appeal. See ORS 135.335(3) (authorizing conditional pleas). After the trial court entered a judgment of conviction based on that guilty plea, Heckler appealed, assigning error to the denial of his motion and arguing that neither of his Colorado convictions involved a violation of a "statutory counterpart" to ORS 813.010. The Court of Appeals affirmed, relying on its decisions in State v. Donovan, 243 Or.App. 187, 256 P.3d 196 (2011), and Mersman. State v. Heckler, 294 Or.App. 142, 430 P.3d 224 (2018).

         Heckler petitioned for review, which we allowed.

         II. "STATUTORY COUNTERPART"

         This case turns on the meaning of the term "statutory counterpart" in ORS 813.011, a statute enacted by the voters through a ballot measure approved in 2010. In pertinent part, that statute provides that the crime of DUII will be a felony "if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense." ORS 813.011(1). The parties approach that interpretive question differently. Defendants' primary argument is that "statutory counterpart" should be read narrowly, to include only foreign offenses with elements [366 Or. 23] the same or nearly the same as ORS 813.010. Defendants argue that the text and context of ORS 813.011 support that reading. They also rely on Carlton, where we addressed the meaning of "statutory counterpart" in several statutes- although not ORS 813.011-in the course of interpreting the term "comparable offenses." Defendants argue that Carlton, as precedent of this court construing the term "statutory counterpart," should guide, if not govern, our interpretation of "statutory counterpart" in ORS 813.011. Defendants also argue that a narrow interpretation of ORS 813.011 is required in order to avoid two constitutional problems: a violation of principles of nondelegation and a potential conflict with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

         The state, by contrast, focuses on a single piece of context. The state argues that, when ORS 813.011 was enacted in 2010, two decisions of the Court of Appeals-Mersman and State v. Rawleigh, 222 Or.App. 121, 192 P.3d 292 (2008)-had interpreted the term "statutory counterpart" to include foreign offenses with the same "use, role, or characteristics" as ORS 813.010 and that those decisions had not required close element matching. The state argues that the voters who enacted ORS 813.011 would have had their understanding informed primarily by that context.

         We approach this case using our ordinary interpretive methodology. See State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009); Burke v. DLCD, 352 Or. 428, 432-33, 290 P.3d 790 (2012) (applying that methodology to a law enacted by the people). Although it is neither party's focus, we begin our analysis by examining the text of ORS 813.011. We then turn to Carlton. Although we agree with defendants that Carlton is relevant precedent concerning the meaning of the term "statutory counterpart," we conclude that it does not control the construction of ORS 813.011. Finally, we turn to the Court of Appeals decisions that the state relies on and to defendants' constitutional arguments.

         A. Text

         ORS 813.011(1) provides:

"Driving under the influence of intoxicants under ORS 813.010 shall be a Class C felony if the defendant has been [366 Or. 24] convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense."

         The first important term in that text is "convicted of." That phrase immediately and substantially limits the inquiry created by ORS 813.011(1). The relevant question is not whether the defendant has, in fact, driven under the influence of intoxicants; what matters is whether that conduct formed the basis for a conviction.

         The next key phrase is "driving under the influence of intoxicants," which specifies the particular conduct of which the defendant must have been convicted. Relevant context for that phrase comes from ORS 813.010(1), which provides:

"A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
"(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;
"(b) Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or
"(c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant."

         In light of that context, "driving under the influence of intoxicants" could be read to refer to the precise elements of ORS 813.010. But more immediate context suggests otherwise: ORS 813.011(1) refers to convictions for "driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction." (Emphasis added.) That indicates that "driving under the influence of intoxicants" should not necessarily be read to be coextensive with ORS 813.010, at least to the extent that the term "statutory counterpart" includes offenses that are not identical to ORS 813.010.

         That brings us to the term "statutory counterpart." Only one of the senses of "counterpart" set out in Webster's [366 Or. 25] Third New Int'l Dictionary 520 (unabridged ed 2002) seems relevant here:

"3 a: one remarkably similar to another: a person or thing so like another that it seems a duplicate *** b: equivalent: something or someone having the same use, role, or characteristics often in a different sphere or period"
The listed subsenses have the same core of meaning-a high degree of similarity. The range from "remarkabl[e]" similarity to "so like another that it seems a duplicate" to "same *** characteristics" is not great. Any ambiguity in the phrase "statutory counterpart" does not arise from uncertainty about how similar to ORS 813.010 a foreign offense must be to qualify as a statutory counterpart- it must be very similar-but from uncertainty about the respects in which it must be similar.

         Read in context, however, that ambiguity is easily resolved. The phrase "statutory counterpart" refers to a law under which the defendant was "convicted of driving under the influence of intoxicants." ORS 813.011. As a result, a "statutory counterpart" to ORS 813.010 must, like ORS 813.010 itself, be an offense that includes the elements of "driving under the influence of intoxicants." It follows that the relevant similarity between ORS 813.010 and its statutory counterparts is that they have those elements in common-not that they share some other "characteristics," "use," or "role."

         B. State v. Carlton

         We turn to Carlton, a decision where we discussed other uses of the term "statutory counterpart," along with various similar terms throughout our laws. Defendants argue that this court construed "statutory counterpart" in Carlton to require close element matching and that we should adhere to that holding here. They argue that, even if Carlton is not read that expansively, it at least established a presumption that "statutory counterpart" should be read narrowly, in the absence of context indicating otherwise. The state argues that our discussion of "statutory counterpart" in Carlton was dicta and that, in any event, Carlton does not preclude the argument that it makes in this case.[2]

         [366 Or. 26] In Carlton, we construed ORS 137.719, a statute providing for presumptive life sentences for defendants who had previously been sentenced two or more times for felony sex offenses, including "[s]entences imposed by any other state or federal court for comparable offenses." ORS 137.719(3)(b)(B). The defendant in Carlton had three prior convictions under California Penal Code § 288(a), which defines an offense that "may be proved by any touching of a child, even outwardly innocent touching, if the touch is sexually motivated." Carlton, 361 Or at 44.

         Beginning with the term "comparable offenses," we consulted the dictionary definition of "comparable," concluding that

"the word 'comparable' has two primary senses. Using the first sense, that word could refer to a degree of similarity that makes comparison appropriate based on the commonality of salient features of the things being compared (meaning that they are alike in substance or essentials). Alternatively, using the second sense, the word could ...

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