State v. Jeffery

329 Or.App. 380

541 P.3d 909

STATE of Oregon, Plaintiff-Respondent,

v.Marty Anwar JEFFERY, Defendant-Appellant.

A176879

Court of Appeals of Oregon.

Argued and Submitted April 26, 2023

December 6, 2023

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

Defendant was convicted of first-degree robbery, ORS 164.415, and sentenced to 90 months in prison, ORS 137.700(2)(a)(R). On appeal, defendant's primary argument is that the length of his sentence is constitutionally disproportionate when compared to the gravity of his offense. Applying State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009), we conclude that defendant's sentence, while severe, does not constitute one of those rare circumstances that requires reversal under Article I, section 16, of the Oregon Constitution. At the sentencing hearing, defendant presented conflicting evidence regarding whether he suffered from schizophrenia, but we do not read the Supreme Court's decision in State v. Ryan , 361 Or. 602, 396 P.3d 867 (2017) as requiring the trial court to make findings regarding that evidence. Instead, as we recently explained in State v. Gonzalez , 326 Or App 587, 601, 534 P.3d 289 (2023), "our cases both before and after Ryan have restricted the consideration of a defendant's personal characteristics to those affecting intellectual capacity." Although there was some evidence in the record that defendant may have suffered from schizophrenia, there was also evidence suggesting he did not, and we do not think that the trial court's failure to expressly discuss that evidence constitutes error. The more significant mitigating factors in this case concerned defendant's specific conduct. Focusing on the circumstances of defendant's offense and comparing it to the range of conduct described in the statute for first-degree robbery, we conclude that defendant's offense was sufficiently grave such that the penalty imposed was not unconstitutional.

In his other two assignments of error, defendant challenges the trial court's failure to merge the verdicts on various counts. As we explain below, one of those arguments is moot, and we reject the other argument. We therefore affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 7, 2020, Weldon Shields and Kristian Henriquez worked as asset protection specialists or loss prevention officers (LPOs) at a Fred Meyer store in Beaverton. They were wearing plain clothes. Shields worked on the floor, while Henriquez observed the store using cameras.

Shields noticed that defendant had many items in his shopping cart, and Shields saw defendant picked up a pair of "Skullcandy headphones" and put them in his cart without looking at the price. Shields told Henriquez to look on the cameras "for the individual that seems to be homeless." Shields observed defendant put some items into his backpack and pockets. The items were primarily food, but also the headphones and a lighter. Defendant "ditched the cart," put the backpack on, and exited the store without paying for the merchandise.

Shields followed defendant outside and notified Henriquez to join them. It was windy outside. When Shields was about seven or eight feet away from defendant, and while Henriquez was approaching from a different part of the store, Shields identified himself as part of Fred Meyer Asset Protection, and said, " ‘Hey. I need to talk to you about the unpaid-for merchandise that you have on you.’ "

Defendant turned around and looked at Shields. Shields saw defendant pull something out of his right pocket, reach over with his left hand, and then Shields saw "a reflection." Shields believed it was a blade or a knife. Shields heard defendant say something like, " ‘I'm not giving you your stuff back,’ " or " ‘Don't come near me.’ " Henriquez thought defendant said, " ‘Don't come near me.’ "

Shields was concerned, and he told Henriquez to " ‘[b]ack up because he has a knife.’ " Defendant did not gesture with the knife or come towards Shields. Instead, defendant simply displayed the knife and continued walking away from the store. At first, Henriquez did not see the knife, but he saw it in defendant's right hand when Shields pointed it out. Shields called 9-1-1.

Officer Kartchner, who worked as a patrol officer for the Beaverton Police Department, responded to the call and arrived about three minutes later. Kartchner located defendant near a restaurant across the street from the store. When Kartchner made contact with defendant, defendant was wearing earphones,¹ but defendant did not have a problem hearing the officer or responding to the officer's commands.

The officer located the pocketknife. Defendant described it as a can opener. Defendant admitted displaying it while in the parking lot of the store, but he said that he took it out as protection because he did not know who the LPOs were, and he had been assaulted three times. When asked by the officer whether he had opened the blade of the pocketknife, defendant stated, "I probably did, yeah." Defendant added that the persons were far behind him, and he "had no intention of getting closer to them with it." The merchandise that defendant took from the store had a value of $41.78.

Defendant was charged with first-degree robbery, ORS 164.415 (Count 1), second-degree robbery, ORS 164.405 (Count 2), unlawful use of a weapon (UUW), ORS 166.220 (Count 3), and third-degree theft, ORS 164.043 (Count 4).

After the charges were filed, defendant was evaluated by three different psychologists. James Andretta, Ph.D., diagnosed defendant as suffering from schizophrenia based on defendant's "disconnection and distancing from social relationships, his mumbling to himself in a way that was in keeping with the experience of internal stimuli, his assertion of fixed false beliefs, and his mildly disorganized speech." Dr. Andretta acknowledged that defendant had a history of using methamphetamine, but he did not think that defendant's drug use explained his symptoms because they manifested earlier in defendant's life. Based on his diagnosis, Dr. Andretta did not believe that defendant could aid and assist in his defense.

At the state hospital, a second psychologist evaluated defendant for the purpose of determining whether he could proceed to trial. Kordell Kennemer, Psy. D., observed that the defendant "did not appear distracted during the evaluation and did not appear to be responding to internal stimuli." In his view, defendant's symptoms were "less severe than what was observed by Dr. Andretta. It is possible that his symptoms may be remitting over time and that they were substance-induced." Dr. Kennemer diagnosed defendant with "[s]chizophrenia spectrum and other psychotic disorder" and substance use disorders. Dr. Kennemer concluded that defendant could proceed to trial.

A third psychologist, Alexander Millkey, Psy. D., evaluated defendant to determine whether he suffered from a qualifying mental disorder that impacted his ability to form the intent to commit the charged crimes. Dr. Millkey noted that, by the time of his evaluation, defendant's "symptoms appear to have entirely abated without treatment with psychotropic medications." Dr. Millkey opined that defendant experienced "an unusually protracted methamphetamine-induced psychotic state," and "it is more parsimonious to attribute the symptoms he experienced to amphetamine use rather than to [s]chizophrenia or another chronic mental illness." According to Dr. Millkey, defendant did not have a qualifying mental disorder. Before trial, defendant raised a "disordered mental state defense," but he withdrew it at the beginning of trial.

Defendant waived his right to a jury trial. The trial judge heard testimony from the LPOs, Kartchner, and defendant. The judge also watched body camera footage of Kartchner's contact with defendant. A photograph of the pocketknife was received into evidence. At trial, Kartchner testified that the blade of the pocketknife was about two to three inches long. Defendant testified that he was listening to music on his earphones when he left the store, and he did not hear Shields announcing himself as an LPO.

The trial judge found defendant guilty of the charges. Before his sentencing hearing, defendant filed a sentencing memorandum arguing, among other things, that a 90-month sentence for defendant's offense would be constitutionally disproportionate. Defendant's memorandum discussed the three psychological evaluations. At the hearing, the trial court imposed the mandatory minimum sentence. The trial judge stated:

"[T]he only way for me to come off of the 90 months is to make certain findings.

"And, given my experience and the particulars of this case, unfortunately for you, it doesn't qualify. These are the same types of cases that the Court imposes similar sentences to.

"And so, legally, based on the statute and the cases that both the attorneys have talked about, that is not something that allows me to find that your case is constitutionally disproportionate to other cases. Obviously, you are an individual, but, in terms of what I can do for you, given that it's a Measure 11 Robbery in the First Degree, I don't think that that applies in your case."

The trial court entered a judgment, which was later amended. Defendant was sentenced to 90 months in prison on Count 1 (first-degree robbery), a concurrent 70-months in prison on Count 2 (second-degree robbery), a concurrent 6-month jail term on Count 3 (UUW), and the trial court merged the verdicts on Count 4 (third-degree theft) and Count 1 (first-degree robbery). Defendant appeals.

II. ANALYSIS

A. Defendant's...