State v. Davilla

280 Or.App. 43

380 P.3d 1003

State of Oregon, Plaintiff–Respondent,

v.Todd Daniel Davilla, Defendant–Appellant.

A153461

Court of Appeals of Oregon.

Argued and submitted February 10, 2015.

August 3, 2016

Kendra M. Matthews, Portland, argued the cause for appellant. With her on the briefs was Ransom Blackman LLP.

Timothy A. Sylwester, Assisted Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

In 1991, when defendant was 16 years old, he killed a 22–year–old woman with a small, dull “Boy Scout knife” during an attempted rape. He pleaded guilty and was convicted as an adult of murder, first-degree burglary, and first-degree attempted rape, and originally received an indeterminate sentence of life imprisonment for the murder conviction. Over the past two decades, defendant's murder conviction has been remanded for resentencing several times and, in this appeal, defendant challenges a judgment imposing his most recent sentence, an upward departure of 600 months' imprisonment and lifetime post-prison supervision. The first three of his five assignments of error challenge, in various ways, the trial court's imposition of an upward departure sentence based on the aggravating factor that he used a dangerous weapon during the murder. Defendant's fourth and fifth assignments assert that his 600–month sentence violated the “proportionality principles” of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. Accordingly, defendant seeks another remand for resentencing.

We conclude that the sentencing court's on-the-record explanation supporting its imposition of an upward departure sentence fails for two reasons. First, the court's conclusion that substantial and compelling reasons existed to impose a departure sentence appears to be based on factors other than defendant's use of a dangerous weapon. Because defendant's use of a dangerous weapon was the only aggravating factor that the state proved at trial, the court was limited to consideration of only that factor when deciding whether a substantial and compelling reason justified an upward departure. Second, to the extent the court relied on defendant's “use of a dangerous weapon” to impose a departure sentence, the court's explanation failed to establish why that factor made the circumstances of this particular case so exceptional that the presumptive sentence would not accomplish the purposes of the sentencing guidelines. In this posture, we decline to address defendant's proportionality challenge and remand for resentencing.

I. BACKGROUND

Given defendant's age at the time of the crimes, the state initially moved to remand the case from juvenile to circuit court. Defendant agreed not to oppose remand and to plead guilty to murder, ORS 163.115 (1989), first-degree burglary, ORS 164.225 (1989), and first-degree attempted rape, ORS 161.405 (1989), ORS 163.375 (1989), in exchange for the state's agreement not to prosecute him for aggravated murder. The agreement also provided that the “Uniform Sentencing Guidelines Grid Blocks apply” to defendant's sentencing and that, under those guidelines, his murder conviction had a crime seriousness level of “11” and he had a criminal history score of “I.”¹ Given defendant's classification in the sentencing grid block, the sentencing guidelines provided a presumptive term of 120 to 121 months for murder.²

Rather than imposing sentence under the sentencing guidelines, the trial court proceeded under ORS 163.115(3)(a) (1989)³ to impose an indeterminate sentence of life imprisonment on the murder conviction. On direct appeal, we affirmed.

State v. Davilla , 121 Or.App. 583, 855 P.2d 1160, adh'd to on recons . , 124 Or.App. 87, 860 P.2d 894 (1993), rev. den. , 318 Or. 351, 870 P.2d 220 (1994) (concluding that, under ORS 138.222(2)(d), we could not review his claimed errors on direct appeal) (Davilla I ).

Defendant then sought and received post-conviction relief. The post-conviction court vacated defendant's sentence on the basis of State v. Morgan , 316 Or. 553, 560, 856 P.2d 612 (1993), which held that a defendant could not receive a sentence of life imprisonment for murder, other than as a departure sentence, because the sentencing provisions in ORS 163.115(3)(a) (1989) had been impliedly repealed by the sentencing guidelines. We affirmed that decision without opinion. Davilla v. Zenon , 147 Or.App. 241, 932 P.2d 1217, rev. den. , 325 Or. 403, 939 P.2d 621 (1997) (Davilla II ).

On remand, the sentencing court proceeded under the sentencing guidelines in accordance with the plea agreement that categorized defendant in the 11–I grid block. However, the court found that the state had proved multiple aggravating factors and imposed an upward departure sentence of 1,394 months. On defendant's appeal, we vacated his sentence because a sentence that included 1,394 months' imprisonment was equivalent to a term of life without the possibility of release or parole, and that result was impermissible given that ORS 161.620 (1989) precluded such a sentence for a person remanded from juvenile court. State v. Davilla , 157 Or.App. 639, 642–43, 972 P.2d 902 (1998), rev. den. , 334 Or. 76, 45 P.3d 450 (2002) (Davilla III ). Accordingly, we remanded for resentencing a second time.

In 2002, on remand from Davilla III, the court imposed an upward departure sentence of 684 months on the murder conviction based on the aggravating factors found by the sentencing court after defendant received post-conviction relief. On appeal, we initially affirmed without opinion, State v. Davilla , 193 Or.App. 484, 93 P.3d 845 (2004), but defendant sought reconsideration based on the then-recent United States Supreme Court decision in Blakely v. Washington , 542 U.S. 296, 304–05, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (under mandatory sentencing guidelines scheme, the Sixth Amendment jury-trial right prohibits judges from enhancing criminal sentences based on facts other than those found by a jury or admitted by the defendant). We granted reconsideration and, because the sentencing court and not a jury had found the aggravating factors used to impose an upward departure sentence, we remanded for resentencing for a third time. State v. Davilla , 196 Or.App. 783, 103 P.3d 671 (2004) (Davilla IV ) (citing State v. Gornick , 196 Or.App. 397, 102 P.3d 734 (2004), rev'd on other grounds , 340 Or. 160, 130 P.3d 780 (2006) (waiver of a defendant's Sixth Amendment right to a jury trial implicit in a guilty plea did not also waive a defendant's right to have a jury determine aggravating factors that would support a departure sentence as required by Blakely )).

In 2005, the legislature enacted ORS 136.765(2), which provided a procedural mechanism to comply with the constitutional issues raised by Blakely. Or. Laws 2005, ch. 463, § 2. In particular, in cases where the state is relying on an aggravating factor to increase a defendant's sentence, ORS 136.765(2) requires the state to provide “written notice to the defendant of the [aggravating factor], and the state's intention to rely on it [.]” Accordingly, in this case, the state provided defendant with notice of its intent to prove four aggravating factors to support an upward departure sentence:

“1) The defendant demonstrated deliberate cruelty toward the victim * * *.

“2) The defendant used a dangerous weapon in the commission of this crime.

“3) The conduct of the defendant that caused the death of [the victim] was committed deliberately and with the reasonable expectation that the death * * * would result.

“4) The defendant committed this murder in an effort to conceal his commission of the crimes of Attempted Rape I and Burglary I.”

In response, defendant filed a demurrer challenging the state's notice on the ground that, among other things, the potential aggravating factors listed in the sentencing guidelines, see OAR 213–008–0002(1)(b),⁴ were the result of an unconstitutional delegation of legislative authority to the executive branch. The sentencing court granted defendant's demurrer on that basis and concluded that the departure provisions of the sentencing guidelines had no continuing legal effect. Accordingly, the court used the sentencing framework that existed before the enactment of the guidelines—that is, ORS 163.115 (1989), the same statute under which defendant was initially sentenced—to impose a sentence of an indeterminate life term with immediate eligibility for parole. State v. Davilla , 234 Or.App. 637, 642, 230 P.3d 22 (2010) (Davilla V ). The state appealed, and we concluded that the sentencing guidelines were not invalid as an unconstitutional delegation of authority. Id. at 646, 230 P.3d 22. We also rejected various alternative bases for affirmance advanced by defendant—among them an argument that the definition of aggravating factors was so vague as to render the sentencing guidelines void. Id . at 650, 230 P.3d 22. Consequently, we reversed and remanded for resentencing.

That leads us to the proceedings that are now before us on appeal. After the remand in Davilla V, the state filed notice under ORS 136.765(2) that it intended to prove the same four aggravating factors that it had asserted during the previous sentencing proceeding, i.e. , deliberate cruelty, use of a dangerous weapon, deliberate conduct that caused the victim's death with the reasonable expectation that death would result, and that defendant committed the murder to conceal his other crimes. Defendant filed a pretrial motion challenging the state's authority to proceed on those factors, and the trial court granted defendant's motion as to the third and fourth factors. Defendant then waived his right to a jury trial and proceeded to a bench trial on the first and second factors.

At trial, defendant did not dispute that he...