State v. Moore

305 Or.App. 21

469 P.3d 283

STATE of Oregon, Plaintiff-Respondent,

v.Daniel Steven MOORE, Defendant-Appellant.

A168300

Court of Appeals of Oregon.

Submitted January 27, 2020.

June 24, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

JAMES, J.

This is the second time this case has been before us on appeal. In State v. Moore , 290 Or. App. 306, 309, 414 P.3d 915 (2018), defendant appealed the judgment imposing sentences on his conviction for three counts of rape in the second degree. ORS 163.365. We reversed and ordered defendant resentenced. At resentencing, the trial court imposed consecutive sentences, explaining that three considerations affected its decision, one of which was that the defendant insisted on a trial "so the victim then was reoffended and ha[d] to appear in court once again and explain this case." Although defense counsel did not object to the trial court's reasoning, defendant asks us to find plain error, arguing that the record must affirmatively show that the trial court imposed sentence based solely on the facts of the case and defendant's personal history, and not on defendant's exercise of his constitutional rights. According to defendant, the record in this case fails to meet that standard, and plain error review is appropriate. We agree. Accordingly, we vacate the sentences and remand for resentencing.

The relevant facts for our purposes are procedural, and include comments made in the original sentencing, as well as on resentencing. Defendant was originally convicted following a bench trial of three counts of second-degree rape under ORS 163.365. At sentencing, the trial court explained that it was persuaded that the maximum sentence was appropriate, reasoning:

"[T]he notion that this—there had to be a criminal proceeding and a trial so the truth could come out is, of course, sidestepped the one person who had the opportunity to make sure that a trial didn't take place is yourself by truly having accepted responsibility and having had the—passed the opportunity, apparently, to enter a guilty plea * * * and keep this young woman from having to appear in court and testify to this."

The trial court then imposed a 75-month sentence for Count 1, rape in the second degree, and then imposed 75-month sentences for Counts 2 and 3, rape in the second degree, to run consecutively, resulting in a 225-month aggregate sentence. The trial court explained its reasoning for imposing consecutive sentences:

"For Count 2, that being a second and separate criminal episode, I'm required, as I see it, to impose a consecutive sentence because that was a separate occasion on which you had had an opportunity for thoughtful reflection on the criminality of the first sentence—or the first crime that you had committed and despite that fact, committed a further forcible Rape in the Second Degree here."

Moore , 290 Or. App. at 307, 414 P.3d 915 (emphasis omitted).

In his first appeal, defendant argued that the trial court plainly erred when it imposed consecutive sentences based on its mistaken belief that consecutive sentences were required. Id . We agreed and remanded for resentencing, but "recognize[d] that, on remand, it [was] possible that the court will exercise its discretion to impose the same sentence." Id . at 309, 414 P.3d 915. We noted that the sentence ultimately imposed was for the trial court to determine, but that whatever sentence the trial court imposed must be "based on a correct understanding of the law." Id .

On remand, counsel for defendant asked the court to exercise its discretion to run part of the three sentences concurrently. As with the first sentencing, the trial court declined, again imposing the same three consecutive 75-month sentences. The trial court explained that we "misinterpreted [its] remark," and when, in the original sentencing it said it was "required" to impose consecutive sentences, it meant that "[it] felt required to do it because the victim suffered three separate instances of—as a result of [defendant's] criminal conduct." Then, before re-imposing the same sentence, the trial court articulated three reasons for why, in its view, consecutive sentences were warranted in this case:

"[Defendant] had the opportunity to think and reflect *** and continued to reoffend. And then, additionally, you know the defense [defendant] offered up in this case and the explanation for [his] conduct was just absolutely unbelievably poor and just again reflected the fact that [he] just didn't get it at that point in time.

"And so, the victim was reoffended and having to appear in court once again and explain this case. These were three separate criminal episodes. The consecutive sentences as previously imposed were appropriate and the facts just require that that was the sentence you justly earned as a result of committing three separate crimes."

(Emphases added.)

Although defendant requested that the trial court impose concurrent sentences, he did not object to the trial court's comments. This appeal followed. On appeal defendant raises a plain error challenge to the trial court's imposition of consecutive sentences, arguing that, in light of the reasoning expressed by the trial court for imposing consecutive sentences, this record fails to affirmatively show that the trial court imposed sentence based solely on the facts of his case and personal history.

The state does not argue that the trial court's comment that "the victim was reoffended and having to appear in court once again and explain this case" was a proper consideration for the imposition of sentence. Rather, the state argues that, because other, permissible, reasons were articulated, we cannot be certain that the trial court imposed the sentence because of the impermissible reason. Rather, argues the state, "[a] reasonable inference—and arguably the most plausible one—is that the trial court knew the law on proper sentencing considerations and followed the law in deciding the appropriate sentence." That inference, argues the state, forecloses plain error review.

Whether a record evidences that a trial court sentenced a defendant solely on the facts of the case and defendant's personal history is a question of law, which we review for errors of law. State v. Qualey , 138 Or. App. 74, 76, 906 P.2d 835 (1995). On claims of plain error, we apply the two-pronged inquiry first articulated in Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991). Under the first prong, an error is "plain" if three requirements are met: (1) the claimed error must be an error of law; (2) the point must be obvious, i.e. , not reasonably in dispute; and (3) the error cannot require the court to go outside the record or select among competing inferences to decide it.

State v. Terry , 333 Or. 163, 180, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). If the first prong is satisfied, we must decide whether to exercise our discretion to review the error. In deciding whether to review a plain error, we may consider

"the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e. , whether the trial court, in some manner, was presented with both sides of the issue and given an opportunity to correct any error."

Id. at 180 n. 11, 37 P.3d 157 (citing Ailes , 312 Or. at 382 n. 6, 823 P.2d 956 ). We turn now to the merits.

It is well-established Oregon law that "[t]he record must affirmatively show that the court sentenced the defendant solely upon the facts of the case and his personal history, and not as punishment for his refusal to plead guilty." State v. Fitzgibbon , 114 Or. App. 581, 587, 836 P.2d 154 (1992) (citing State v. Smith , 52 Or. App. 681, 629 P.2d 420 (1981) ). A trial court "may not impose a sentence that is longer than it would have been had [the defendant] not exercised the right to go to trial or not utilized a defense that was inconsistent with owning up to his misdeeds." Id. at 586, 836 P.2d 154.

In Qualey , the sentencing court "openly expressed displeasure with the defendant's decision to take the case to trial" and stated:

"From my perspective [defendant], you traumatized [the victim] twice: Once was on the day of the incident, and the second was putting him through this court hearing here again. That was a choice you made after lots of reflection, [and] after plenty of opportunity to consider the alternatives ***."

138 Or. App. at 76, 906 P.2d 835. When the defendant's counsel questioned the motive behind the sentencing decision, the court responded: "[The defendant] is entitled to exercise his rights. He is not insulated from the consequences of doing that when it harms other people and there are viable alternatives." Id . at 77, 906 P.2d 835 (emphasis omitted). After reviewing the record as a whole, we held that "the court's statements le[d] to the inference that defendant's sentence, or part thereof, was based on defendant's decision to reject the prosecutor's plea bargain and proceed to trial." Id. We remanded for resentencing because we could not say that the defendant was sentenced "solely on the facts of his case and personal history." Id. (Emphasis in original.)

In State v. Hainline , 295 Or. App. 837, 838, 437 P.3d 321 (2019), the sentencing court stated:

"The fact that you did put your daughters through additional trauma by forcing them to take the witness stand *** [that] does bear some weight on the

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