State v. Miller

291 Or.App. 599

422 P.3d 327

STATE of Oregon, Plaintiff-Respondent,

v.Pamila Sue MILLER, Defendant-Appellant.

A158433

Court of Appeals of Oregon.

Argued and submitted October 11, 2016.

May 9, 2018

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy L. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

EGAN, C. J.

After pleading guilty, defendant was convicted of six counts of unlawful delivery of methamphetamine, ORS 475.890 (Counts 1, 3, 5, 7, 9, and 12); six counts of unlawful possession of methamphetamine, ORS 475.894 (Counts 2, 4, 6, 8, 10, and 13); one count of unlawful manufacture of methamphetamine, ORS 475.886 (Count 11); and one count of frequenting a place where controlled substances are used, ORS 167.222 (Count 14).¹ The trial court imposed concurrent sentences totaling 81 months in prison, which included the statutorily required mandatory minimum sentences applicable to many of defendant’s convictions, and 36 months of post-prison supervision. Based on a theory of "sentence entrapment," defendant contends on appeal that the mandatory minimum sentences that the court imposed on Counts 3 through 13 are unconstitutionally disproportionate as applied to her under Article I, section 16, of the Oregon Constitution because they would not have applied had she not been "pushed into" committing those offenses by a government confidential informant. The state responds that defendant’s claims are unreviewable under former ORS 138.222 (2015)² and the appeal must be dismissed. And, in any event, the state contends, there is no basis for us to conclude that the sentences violate Article I, section 16. We conclude that we have authority to review defendant’s claims of error—at least with respect to the sentences imposed on Counts 11 and 12—however, we agree with the state that defendant’s claims fail on the merits.³ Accordingly, we affirm.

The following undisputed facts were adduced at defendant’s sentencing hearing. In 2008, defendant, a bartender and bar owner in Coos Bay, began regularly using small amounts of methamphetamine; she testified that she would put the drug into her coffee to help her cope with personal and financial stress. Toward the end of that year, defendant began selling methamphetamine to three of her friends, who used the drug in a similar fashion. Defendant would buy "eightballs" or "teeners"⁴ from a supplier she met at the bar and break them down into smaller quantities to sell to her friends. Between the end of 2008 and July 2013, defendant made approximately $100 to $150 a week selling methamphetamine.

In 2013, the South Coast Interagency Narcotics Team (SCINT) arranged for a confidential government informant to purchase methamphetamine from defendant in a series of six body-wire-recorded controlled buys. Those buys formed the bases for defendant’s convictions in this case.

In the first transaction, on March 14, 2013, the informant purchased one-quarter ounce (approximately 6.99 grams) of methamphetamine from defendant for $350. In the second buy, on April 8, the informant purchased 13.85 grams of methamphetamine from defendant for $700. Because her usual supplier did not deal in those quantities, defendant bought the drugs from a different supplier. Defendant also provided "baggies" for the informant to resell the methamphetamine, and they discussed the possibility of a price break for larger quantities. During the third transaction, on April 19, the informant purchased 18.89 grams of methamphetamine from defendant, and defendant provided him with new packaging material. She also told him that she would be making future trips in order to get methamphetamine for him. On May 16, the fourth buy, the informant purchased 27.4 grams (approximately one ounce) of methamphetamine, which defendant purchased from yet another supplier, this time in Portland. She bought the methamphetamine for $800 and sold it to the informant for $1,200. Defendant told him that she "could probably get whatever he wanted at the price he was willing to pay."⁵ In the fifth transaction, on June 18, the informant arranged for a purchase of four ounces from defendant; defendant bought approximately that amount (111.49 grams) from her Portland supplier for $2,600 and sold it to the informant for $4,000. Finally, on or about July 1, the informant requested one pound, two ounces (approximately 510 grams), from defendant. Defendant drove to Portland to buy the drugs; when she returned home, she put the methamphetamine in a trash bag, took it outside, and left it. She was expecting the informant to come pick it up, but, instead, several police officers arrived with a search warrant and found the methamphetamine, which was confirmed to be over 500 grams. They also searched her home and seized computers, cell phones, and financial documents.

Based on those six transactions, defendant was arrested and charged with the offenses listed above. She waived a jury, pleaded guilty to all charges, and was convicted. At sentencing, defendant urged the court to impose a downward departure based on "sentencing entrapment," citing federal case law applying the federal sentencing scheme. See, e.g. , United States v. Castaneda , 94 F.3d 592, 595 (9th Cir. 1996) (recognizing court’s authority to "subtract the amount of drugs tainted by sentencing entrapment from the total quantity of drugs attributable to the defendant for purpose of establishing a mandatory minimum sentence"). She argued that defendant "would not have been engaged in what she was engaged with unless SCINT upped it, and upped it, and upped it two more times after that."

The trial court stated that, given a choice, it would impose a downward durational departure, but that it lacked authority to do that. The court observed that "the only reason [defendant is] a big-time drug dealer is because [she] was pushed to be a big-time drug dealer" and, "in the big picture of drug dealers, the outcome of this case is disproportionate to what I think would be a fair sentence." But, the court explained, Oregon’s statutory scheme establishing the sentences for the pertinent offenses expressly precluded the court from departing downward from the statutory minimums:

"I reject that the theory presented—sentencing entrapment—authorized me to ignore the statutory scheme which Oregon has created, which again I reference prohibits this Court from downward durational or dispositional departing."

Consequently, the court proceeded to sentence defendant according to the statutorily required minimum sentences, as applicable.⁶ On each of defendant’s most serious offenses, that is, Counts 11 and 12, the court imposed an 81-month prison term, based on application of ORS 475.925 and ORS 475.930, set out below. See 291 Or. App. at 608-09, 422 P.3d at 332. The court ordered all of defendant’s sentences to be served concurrently.

Defense counsel then raised the issue of disproportionality, citing State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009), for the proposition that the court had authority to depart from the statutory minimums where imposing them would render the sentence unconstitutionally disproportionate. See Or. Const., Art. I, § 16.⁷ The court rejected that argument, clarifying that it had earlier found the statutorily mandated sentences to be "disproportionate to what’s fair, under the circumstances" not unconstitutionally disproportionate for purposes of Article I, section 16.

On appeal, defendant reprises her constitutional argument, contending that, because the trial court made a "finding of sentence entrapment—that, although defendant was predisposed to commit minor methamphetamine offenses, she was not predisposed to commit the major offenses that the state ‘pushed’ her into"—and her undisputed testimony at the sentencing hearing demonstrates that she engaged in the higher-quantity transactions with the informant "not because she necessarily desired to become a major drug dealer, per se , but out of financial need"—the court erred in concluding that the mandatory minimum sentences on Counts 3 to 13 are not disproportionate as applied to her under Article I, section 16.

In response, the state first contends that we must dismiss the appeal under former ORS 138.222, which confers jurisdiction and regulates the scope of our review in this case. State v. Brewer , 260 Or. App. 607, 612-16, 320 P.3d 620 (2014), rev. den. , 355 Or. 380, 328 P.3d 696 (2014) (holding, consistently with State v. Cloutier , 351 Or. 68, 90-91, 261 P.3d 1234 (2011), that former ORS 138.222 governs appeal and review of sentences imposed for post-1989 felonies). Former ORS 138.222(2)(a) precludes appellate review of "[a]ny sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission." In the state’s view, the trial court here did impose presumptive sentences; therefore, defendant’s claims are barred by former ORS 138.222(2)(a).⁸

Defendant responds that former ORS 138.222(2)(a) does not preclude review because her claims of error relate to sentences that are prescribed by statute, not the rules of the Oregon Criminal Justice Commission, and the Supreme Court’s recent decision in State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016), resolves that issue conclusively in her favor.⁹ We agree with defendant.

In Althouse , the court considered whether former ORS 138.222(2)(a) precluded the defendant from obtaining direct appellate review of a sentence imposed pursuant to ORS 137.719(1), which provides that "[t]he presumptive sentence" for a defendant’s third felony sex conviction is life imprisonment without the possibility of...