Oregon v. Ice

555 U.S. 160

129 S.Ct. 711

172 L.Ed.2d 517

OREGON, Petitioner

v.Thomas Eugene ICE.

No. 07–901.

Supreme Court of the United States

Argued Oct. 14, 2008.

Decided Jan. 14, 2009.

Mary H. Williams, Solicitor General, Salem, OR, for petitioner.

Ernest G. Lannet, Salem, OR, appointed by this Court, for respondent.

Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Counsel of Record, Mary H. Williams, Solicitor General, Douglas Petrina, Assistant Attorney General, Salem, Oregon, for Petitioner.

Peter Gartlan, Chief Defender, Rebecca A. Duncan, Assistant Chief Defender, Counsel of Record, Ernest G. Lannet, Senior Deputy Public Defender, Office of Public Defense Services, Appellate Division, Salem, OR, for Respondent.

Opinion

Justice GINSBURG delivered the opinion of the Court.

This case concerns the scope of the Sixth Amendment's jury-trial guarantee, as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Those decisions are rooted in the historic jury function—determining whether the prosecution has proved each element of an offense beyond a reasonable doubt. They hold that it is within the jury's province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular offense. Thus far, the Court has not extended the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of concurrent, sentences?

Most States continue the common-law tradition: They entrust to judges' unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor. Other States, including Oregon, constrain judges' discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences. It is undisputed that States may proceed on the first two tracks without transgressing the Sixth Amendment. The sole issue in dispute, then, is whether the Sixth Amendment, as construed in Apprendi and Blakely, precludes the mode of proceeding chosen by Oregon and several of its sister States. We hold, in light of historical practice and the authority of States over administration of their criminal justice systems, that the Sixth Amendment does not exclude Oregon's choice.

I

A

State laws, as just observed, prescribe a variety of approaches to the decision whether a defendant's sentences for distinct offenses shall run concurrently or consecutively. Oregon might have followed the prevailing pattern by placing the decision within the trial court's discretion in all,¹ or almost all,² circumstances. Instead, Oregon and several other States have adopted a more restrained approach: they provide for judicial discretion, but constrain its exercise. In these States, to impose consecutive sentences, judges must make certain predicate factfindings.³

The controlling statute in Oregon provides that sentences shall run concurrently unless the judge finds statutorily described facts. Ore.Rev.Stat. § 137.123(1) (2007). In most cases, finding such facts permits—but does not require—the judge to order consecutive sentences.⁴ Specifically, an Oregon judge may order consecutive sentences “[i]f a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct.” § 137.123(2). If the offenses do arise from the same course of conduct, the judge may still impose consecutive sentences if she finds either:

“(a) That the criminal offense ... was an indication of defendant's willingness to commit more than one criminal offense; or

“(b) The criminal offense ... caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or ... to a different victim....” § 137.123(5).

B

On two occasions between December 1996 and July 1997, respondent Thomas Eugene Ice entered an apartment in the complex he managed and sexually assaulted an 11–year–old girl. 343 Ore. 248, 250, 170 P.3d 1049, 1050 (2007). An Oregon jury convicted Ice of six crimes. For each of the two incidents, the jury found him guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim's vagina; and first-degree sexual assault for touching the victim's breasts. Ibid .

At sentencing, the judge made findings, pursuant to § 137.123, that permitted the imposition of consecutive sentences. First, the judge found that the two burglaries constituted “separate incident[s].” Id., at 255, 170 P.3d, at 1053 (internal quotation marks omitted). Based on that finding, the judge had, and exercised, discretion to impose the two burglary sentences consecutively. Ibid.; see § 137.123(2).

Second, the court found that each offense of touching the victim's vagina met the statutory criteria set forth in § 137.123(5) : Ice displayed a “willingness to commit more than one ... offense” during each criminal episode, and his conduct “caused or created a risk of causing greater, qualitatively different loss, injury or harm to the victim.” Id., at 253, 170 P.3d, at 1051 (internal quotation marks omitted). These findings gave the judge discretion to impose the sentence for each of those sexual assault offenses consecutive to the associated burglary sentence. The court elected to do so. Ibid. The court ordered, however, that the sentences for touching the victim's breasts run concurrently with the other sentences. Ibid. In total, the court sentenced Ice to 340 months' imprisonment. App. 46–87.⁵

Ice appealed his sentences. In relevant part, he argued that he had a Sixth Amendment right to have the jury, not the sentencing judge, find the facts that permitted the imposition of consecutive sentences. The appellate court affirmed the trial court's judgment without opinion. 178 Ore.App. 415, 39 P.3d 291 (2001).

The Oregon Supreme Court granted Ice's petition for review and reversed, 4 to 2. 343 Ore., at 250, 170 P.3d, at 1050.⁶ In the majority's view, the rule of Apprendi applied, because the imposition of consecutive sentences increased “the quantum of punishment” imposed.

343 Ore., at 265, 170 P.3d, at 1058. The dissenting justices concluded that “[n]either the holding in Apprendi nor its reasoning support[ed] extending that decision to the question of consecutive sentencing.” Id., at 267, 170 P.3d 1049,170 P.3d, at 1059 (opinion of Kistler, J.). State high courts have divided over whether the rule of Apprendi governs consecutive sentencing decisions.⁷ We granted review to resolve the question. 552 U.S. 1256, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008).

II

The Federal Constitution's jury-trial guarantee assigns the determination of certain facts to the jury's exclusive province. Under that guarantee, this Court held in Apprendi, “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.” 530 U.S., at 490, 120 S.Ct. 2348.

We have applied Apprendi 's rule to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U.S. 584, 602, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), facts allowing a sentence exceeding the “standard” range in Washington's sentencing system, Blakely, 542 U.S., at 304–305, 124 S.Ct. 2531, and facts prompting an elevated sentence under then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Most recently, in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), we applied Apprendi 's rule to facts permitting imposition of an “upper term” sentence under California's determinate sentencing law. All of these decisions involved sentencing for a discrete crime, not—as here—for multiple offenses different in character or committed at different times.

Our application of Apprendi 's rule must honor the “longstanding common-law practice” in which the rule is rooted.

Cunningham, 549 U.S., at 281, 127 S.Ct. 856. The rule's animating principle is the preservation of the jury's historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U.S., at 477, 120 S.Ct. 2348. Guided by that principle, our opinions make clear that the Sixth Amendment does not countenance legislative encroachment on the jury's traditional domain. See id., at 497, 120 S.Ct. 2348. We accordingly considered whether the finding of a particular fact was understood as within “the domain of the jury ... by those who framed the Bill of Rights.” Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion). In undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi 's rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that “extends down centuries into the common law.” Apprendi, 530 U.S., at 477, 120 S.Ct. 2348. Instead, specification of the regime for...