State v. Dulfu

363 Or. 647

426 P.3d 641

STATE of Oregon, Respondent on Review,

v.Catalin Voda DULFU, Petitioner on Review.

CC 201204555 (SC S064569)

Supreme Court of Oregon.

Argued and submitted September 19, 2017.

September 20, 2018

Ryan Scott, Portland, argued the cause and filed the briefs for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices.^**

DUNCAN, J.

In this criminal case, defendant asserts that the trial court erred in calculating his criminal history score under the felony sentencing guidelines. Under the guidelines, prior convictions generally increase a defendant’s criminal history score, unless they arose out of the same criminal episode as the crime for which the defendant is being sentenced. In this case, defendant was convicted of multiple crimes based on child pornography on his computer. Over defendant’s objection, the court increased defendant’s criminal history score after it sentenced him for each of the crimes, until it reached the maximum criminal history score.

Defendant appealed, arguing, among other things, that his convictions were based on his possession of multiple images of child pornography at the same time and place and that possession of multiple items of contraband at the same time and place constitutes a single criminal episode. The Court of Appeals affirmed. State v. Dulfu , 282 Or. App. 209, 386 P.3d 85 (2016). On review, we reverse and remand.

As explained below, the rule that governs the calculation of a defendant’s criminal history score, OAR 213-004-0006, provides that a defendant’s criminal history score is based on the defendant’s criminal history at the time the defendant’s "current crimes" are sentenced; therefore, a defendant’s "current crimes" do not count toward the score. The legislative history of the rule shows that, by "current crimes," the drafters of the rule were referring to crimes arising from the same "criminal episode," which they understood to include crimes that, under the statutory and constitutional double jeopardy provisions, must be brought in a single criminal prosecution. Thus, a conviction does not count toward a defendant’s criminal history score if, for double jeopardy purposes, it arose out of the same criminal episode as the crime for which the defendant is being sentenced. In other words, if double jeopardy principles require crimes to be joined in a single criminal prosecution, then a conviction for one of the crimes cannot be used to increase the defendant’s criminal history score for sentencing on any of the other crimes.

In this case, the state prosecuted defendant for multiple crimes based on the possession of multiple items of contraband at the same time and place, and, under double jeopardy rules, those crimes were part of a single criminal episode. Therefore, the trial court erred in using defendant’s convictions for those crimes to increase his criminal history score as it did.

I. HISTORICAL AND PROCEDURAL FACTS

Law enforcement officers seized and searched defendant’s computer and duplicated its hard drive. During a search of the duplicated hard drive, a forensic investigator discovered computer files containing visual recordings of sexually explicit conduct involving children. The state charged defendant with crimes based on 15 of the files. For each of the 15 files, the state charged defendant with one count of encouraging child sexual abuse in the first degree (ECSA I), ORS 163.684, and one count of encouraging child sexual abuse in the second degree (ECSA II), ORS 163.686, for a total of 30 counts. (For example, Count 1, which charged defendant with ECSA I, and Count 16, which charged defendant with ECSA II, were based on the same file.) The indictment alleged that the crimes occurred on eight different dates.¹

As relevant here, a person commits ECSA I if the person either knowingly "duplicates * * * a visual recording of sexually explicit conduct involving a child" or knowingly "possesses * * * such a visual recording with the intent to * * * duplicate" it. ORS 163.684(1)(a)(A).² And, as relevant here, a person commits ECSA II if the person "knowingly possesses * * * a visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person." ORS 163.686(1)(a)(A)(i). Thus, ECSA I applies to the duplication of recordings and the possession of recordings with intent to duplicate them, whereas ECSA II applies to the possession of recordings for a sexual purpose.

The case was tried to a jury. The state presented evidence that the 15 files were on defendant’s computer when it was seized from his house and that defendant downloaded the 15 files on eight different dates. The state argued that defendant was guilty of the ECSA I counts because he had possessed the files with the intent to duplicate them; it also argued, in the alternative, that defendant was guilty of those counts because he had duplicated the files by downloading them. The state did not elect a theory of ECSA I, and the jury verdict form did not identify a theory. The jury convicted defendant on all 30 counts (one ECSA I count and one ECSA II count for each file).

The trial court sentenced defendant on the ECSA I counts first. Under the sentencing guidelines, a defendant’s presumptive sentence for a crime is based on the crime seriousness ranking of the crime and the defendant’s criminal history score. OAR 213-004-0001. The guidelines include a 99-block grid, with eleven crime serious categories on the vertical axis, ranging from "1" to "11," and nine criminal history categories on the horizontal axis, ranging from "A" to "I." Id. (describing the sentencing guidelines grid); OAR ch. 213, App. 1 (setting out sentencing guidelines grid); OAR 213-017-0000 - 213-017-0011 (setting forth the complete crime seriousness scale); OAR 213-004-0006 (describing the criminal history scale). "A" is the highest criminal history category and applies if a defendant’s "criminal history includes three or more person felonies in any combination of adult convictions or juvenile adjudications." OAR 213-004-0007. "I" is the lowest criminal history category and applies if a defendant’s criminal history "does not include any juvenile adjudication for a felony or any adult conviction for a felony or Class A misdemeanor." Id. When sentencing a defendant for a crime, a trial court identifies the crime’s seriousness ranking on the vertical axis and the defendant’s criminal history score on the horizontal axis, and the gridblock where those axes intersect contains the presumptive sentence for the defendant’s crime. OAR 213-004-0001.

ECSA I has a crime seriousness ranking of "8." OAR 213-017-0004(14). Defendant’s criminal history score for Count 1 was "I." Therefore, defendant’s gridblock for Count 1 was "8-I," for which the presumptive prison term is 16-18 months. See OAR ch. 213, App 1 (showing presumptive sentences for gridblock). The trial court imposed an 18-month prison term on Count 1.

The trial court then had to determine whether to include defendant’s conviction on Count 1 when calculating his criminal history score for Count 2. The calculation of a defendant’s criminal history is governed by OAR 213-004-0006, which provides, in part, that a defendant’s criminal history is based on the number of convictions "in the offender’s criminal history at the time the current crime or crimes of conviction are sentenced."

Defendant argued that, under this court’s case law, a conviction cannot be included in a defendant’s criminal history if it arose out of the same "criminal episode" as the crime for which the defendant is being sentenced. See State v. Cuevas , 358 Or. 147, 150, 361 P.3d 581 (2015) (so stating). Defendant further argued that the term "criminal episode" has the same meaning for the purposes of the criminal history calculation as it does for the purposes of double jeopardy analysis. Thus, according to defendant, if two crimes were part of the same criminal episode for double jeopardy purposes and, therefore, had to be joined in a single criminal prosecution, then they were also part of the same criminal episode for criminal history calculation purposes. They are the defendant’s "current" crimes, and a conviction for one of them cannot be used to increase the defendant’s criminal history score for any of the others. Applying that rule, defendant argued that, under State v. Boyd , 271 Or. 558, 571, 533 P.2d 795 (1975), his convictions arose out of a single criminal episode for double jeopardy purposes and, by extension, for criminal history purposes.

In Boyd , a double jeopardy case, this court held that two charges based on the defendant’s possession of two different items of contraband at the same time and location arose out of a single criminal episode. Id. In this case, defendant relied on Boyd to argue that his convictions based on the possession of different pornographic images at the same time and location arose out of a single criminal episode and, as a result, none of the convictions could be used to increase his criminal history score for any of the others.

The state agreed that, if multiple convictions arise out of a single criminal episode, none of the convictions can be used to increase a defendant’s criminal history score for any of the others; but the state did not agree that defendant’s convictions arose out of a single criminal episode. The state contended that defendant’s criminal history score could be increased for each crime committed on a different date.

The trial court rejected defendant’s argument that, because the state had prosecuted him for possession of the computer files at the same time and place, his convictions...