State v. Cid

545 P.3d 1278

331 Or.App. 231

STATE of Oregon, Plaintiff-Respondent,

v.Emanuel CID, aka Emmanuel Cid, Defendant-Appellant.

A178968

Court of Appeals of Oregon.

Submitted January 24, 2024

February 28, 2024

Washington County Circuit Court, 18CR03884; Oscar Garcia, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Emanual Cid filed the supplemental briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot, Judge.

AOYAGI, P. J.

₂₃₂Defendant was convicted of a total of nine sex crimes against two children. This is his second appeal, after remand for resentencing. See State v. Cid, 315 Or App 273, 500 P.3d 758 (2021). Defendant raises four assignments of error and three supplemental pro se assignments of error. In his first assignment of error and first and second supplemental pro se assignments of error, defendant argues that, as to Counts 1 and 2 and Counts 5 through 9, the trial court should have sentenced him under ORS 137.707, instead of ORS 137.700, because he was a minor when he committed those offenses. In his second, third, and fourth assignments of error and third supplemental pro se assignment of error, defendant argues that the trial court erred in failing to merge the guilty findings on three pairs of charges. For the following reasons, we affirm.

SENTENCING UNDER ORS 137.700

When defendant was 24 years old, he was charged with sexual offenses against two child victims, some of which occurred when defendant was 16 years old and some of which occurred when defendant was 20 years old.¹ Defendant pleaded guilty or no contest to most of the charges, and the remainder were dismissed. As a result, defendant was convicted of two counts of first-degree sodomy, ORS 163.405 (Counts 1 and 2); two counts of first-degree unlawful sexual penetration, ORS 163.411 (Counts 5 and 6); two counts of first-degree rape, ORS 163.375 (Counts 7 and 8); first-degree sexual abuse, ORS 163.427 (Count 9); second-degree rape, ORS 163.365 (Count 10); and second-degree sodomy, ORS 163.395 (Count 11). All of those crimes are Measure 11 offenses.² The conduct underlying Counts 1 and 2 and Counts 5 to 9 occurred when defendant was 16 years old. The ₂₃₃conduct underlying Counts 10 and 11 occurred when defendant was 20 years old. Counts 1 to 8 involved one victim, and Counts 9 to 11 involved a different victim. Defendant was sentenced under ORS 137.700 and received an aggregate prison sentence of 138 months.

As to Counts 1 and 2 and Counts 5 through 9, defendant contends that, because he was a minor when he committed those offenses, the trial court should have sentenced him under ORS 137.707, rather than ORS 137.700. ORS 137.700 states the mandatory minimum sentences for Measure 11 offenses and allows no eligibility for sentence reduction for any reason whatsoever. ORS 137.707 is the parallel statute for juvenile offenders aged 15 years or older³ who are waived into adult court. It states the same mandatory minimum sentences for Measure 11 offenses, and similarly allows no eligibility for sentence reduction—with one crucial exception, which is that offenders sentenced under ORS 137.707 are eligible for a second-look hearing and potential conditional release under ORS 420A.203 and ORS 420A.206:

"(1) When a person waived under ORS 419C.349(1)(a) is convicted of an offense listed in subsection (4) of this section, the court shall impose at least the presumptive term of imprisonment provided for the offense in subsection (4) of this section. The court may impose a greater presumptive term if otherwise permitted by law, but may not impose a lesser term. The person is not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody. The person is not eligible for any reduction in the minimum sentence for any reason under ORS 421.121 or any other provision of law. The person is eligible for a hearing and conditional release under ORS 420A.203 and 420A.206."

ORS 137.707(1) (emphases added); see also generally ORS 420A.203 (listing all categories of persons eligible for second-look hearings, including persons who were under 18 years of age at the time of the offense and were sentenced to a term of imprisonment of at least 24 months under ORS 137.707).

₂₃₄It is that exception that causes defendant to want to be sentenced under ORS 137.707, instead of ORS 137.700. A second-look hearing provides juvenile offenders the opportunity to serve a much shorter sentence if they demonstrate that they are rehabilitated and otherwise meet the requirements for conditional release. See ORS 420A203(1)(b) (providing for a second-look hearing when an eligible offender has "served one-half of the sentence imposed or when a person described in [ORS 420A.203(a)(B)] attains 24 years and six months of age"); ORS 420A.203(4)(a)(B) (at the conclusion of the second-look hearing, the court shall order conditional release under ORS 420A.206 if the court finds that the offender has been rehabilitated and reformed; is not a safety threat to the victim, the victim’s family or the community; and will comply with the conditions of release); ORS 420A206 (provisions regarding conditional release).

[1] As a preliminary matter, we agree with the parties that the trial court’s stated reason for not applying ORS 137.707 was incorrect. The court reasoned that ORS 137.707 did not apply to defendant based on the date that he committed the offenses. However, it is the original sentencing date that controls, not the date of the offenses. Because defendant was originally sentenced on February 12, 2020, the second-look eligibility provision in ORS 137.707 would apply to him, if ORS 137.707 itself applies to him. See Or. Laws 2019, ch. 634, § 32 (the SB 1008 amendments to ORS 137.707 apply "to sentences imposed on or after January 1, 2020"); Or. Laws 2019, ch. 685, § 4 (the SB 1008 amendments to ORS 137.707 do not apply "to persons who were originally sentenced before January 1, 2020, and who are subsequently resentenced on or after January 1, 2020").

We therefore next address whether ORS 137.707 applies to defendant, a purely legal issue that was argued in the trial court and is properly before us as an alternative basis to affirm. See Sherertz v. Brownstein Rask, 314 Or App 331, 341, 498 P.3d 850 (2021), rev. den., 369 Or. 338, 504 P.3d 1181 (2022) (discussing when and how alternative bases to affirm may be considered on appeal). This appeal raises a question of statutory construction, specifically whether a person who commits a Measure 11 crime as a juvenile, reaches the age of majority, ₂₃₅and then is charged in adult court should, if convicted, be sentenced as an adult under ORS 137.700 or as a juvenile offender under ORS 137.707. Defendant argues that "[t]o effectuate the clear legislative intent to focus on the rehabilitative potential of youth offenders, the second-look provision of [ORS 137.707] should be interpreted to apply to all persons who committed their offenses when they were a youth, regardless of when they are ultimately charged." The state counters that the statutory text forecloses that interpretation.

[2] Because the disputed portion of ORS 187.707 was enacted by the legislature,⁴ we examine the disputed provision’s text and context, as well as any helpful legislative history of which we are aware, with the aim of ascertaining the intent of the legislature. State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009). Text and context "must be given primary weight in the analysis," as only the text "receives the consideration and approval of a majority of the members of the legislature." Id. at 171, 206 P.3d 1042.

Here, the text is unequivocal. ORS 137.707(1) applies only "[w]hen a person waived under ORS 419C.349(1)(a)" is convicted of a Measure 11 offense. ORS 419C.349 is the statute providing for waiver of youths into adult court. See ORS 419C.349(2) (allowing the juvenile court to "waive the youth to a circuit, justice or municipal court of competent jurisdiction" if the stated requirements for waiver are met). ORS 419C.349(1)(a), the specific provision cited in ORS 137.707(1), addresses youths alleged to have committed acts that would qualify as Measure 11 offenses. It provides for ₂₃₆waiver hearing on the state’s request when "a petition has been filed alleging that a youth has committed an act when the youth was 15, 16 or 17 years of age that, if committed by an adult, would constitute aggravated murder or an offense listed in ORS 137.707[.]" ORS 419C.349(1)(a).

Defendant was not "waived under ORS 419C.349 (1)(a)." ORS 137.707(1). Defendant was 24 years old when he was charged. Consequently, he was not a "youth" for whom a delinquency "petition" was filed in juvenile court alleging acts that "would" be crimes if committed by an adult. Rather, he was an adult for whom an indictment was returned, resulting in his being charged in circuit court with actual crimes. See State v. Pike, 177 Or App 151, 153, 33 P.3d 374 (2001), rev. den., 333 Or. 568, 42 P.3d 1246 (2002) ("As a general rule, if a person is over 18 when he or she is charged with a criminal offense, that person will be tried as an adult," even if the person was under the age of 18 when they committed the charged acts.). Indeed, as defendant acknowledges, given his age when charged, even if the state had filed a petition in juvenile court, the juvenile court would have lacked jurisdiction. ORS 419C.005(1).⁵

If the legislature wanted the second-look eligibility provision in ORS 137.707(1) to apply to anyone other than youths waived into adult court on Measure 11 offenses, then it presumably would have used broader language than "waived under ORS...