State v. Robert Lee Banks

180 P.3d 726

218 Or. App. 593

STATE of Oregon, Plaintiff-Respondent, v. Robert Lee BANKS, Defendant-Appellant.

C030755CR.

A123839.

Court of Appeals of Oregon, En Banc.

Submitted on Record and Briefs December 5, 2007.

Resubmitted En Banc February 6, 2008.

Decided March 19, 2008.

Andrew S. Chilton and Chilton, Ebbett & Rohr, LLC, Portland, filed the brief for appellant.

Robert L. Banks filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Benjamin R. Hartman, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

HASELTON, J.

Defendant appeals, challenging his convictions following a jury trial for first-degree robbery, ORS 164.415, first-degree burglary, ORS 164.225, second-degree theft, ORS 164.045, and menacing, ORS 163.190. We reject those challenges without discussion. We also reject without discussion defendant's argument that ORS 137.700 is facially unconstitutional. We write only to address defendant's unpreserved challenge that the trial court erred in imposing a 60-month consecutive sentence on his conviction for first-degree burglary, in violation of the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). For the reasons that follow, we affirmatively exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991), to address and correct that asserted error. See also State v. Fults, 343 Or. 515, 173 P.3d 822 (2007); State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007) (both addressing proper application of considerations bearing on positive exercise of Ailes discretion). Accordingly, we reverse and remand for resentencing, but otherwise affirm.

The pertinent circumstances are undisputed. Defendant accosted his former girlfriend as she got out of the car at her home and forced her, over her objections, to let him inside. Once inside, defendant refused to leave, prevented the victim from leaving, and then, taking a knife from a kitchen drawer, threatened her and demanded money, which she gave him. The indictment alleged, inter alia, that defendant had committed first-degree burglary by unlawfully entering and remaining in the house with the intent to commit a crime therein, and first-degree robbery by threatening the victim with a knife so as to overcome her resistance while committing a theft. The jury convicted defendant of those crimes, as well as second-degree theft and menacing, but acquitted defendant of unlawful use of a weapon.

On December 19, 2003 — roughly six months before the United States Supreme Court decided Blakely — the trial court imposed sentence in this case. In particular, the court imposed a sentence of 90 months on the first-degree robbery conviction and, pursuant to ORS 137.123, a consecutive sentence of 60 months on the first-degree burglary conviction.¹ The trial court explained the imposition of the consecutive sentence as follows:

"[O]n the burglary charge, you're in Grid Block 9C, and in that grid block you end up with a 60-month commitment to the Department of Corrections. And because it's separate conduct that you went back to this location clearly with the intent to steal property or cause harm to [the victim], I'm going to make those 60 months consecutive to the 90 months and you'll serve that after you finish the 90 months on the robbery."

From those comments, it is unclear whether the trial court was purporting to rely on ORS 137.123(2) or on ORS 137.123(5) in imposing the consecutive sentence. Defendant did not raise any constitutional objection to the court's imposition of a consecutive sentence.

Defendant contends that, although he did not raise his present challenge in the trial court, the court's imposition of a consecutive sentence is, nevertheless, reviewable as "error of law apparent on the face of the record." ORAP 5.45(1). The state's sole response is to invoke State v. Fuerte-Coria, 196 Or.App. 170, 173, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005) (unpreserved Blakely-based challenge to imposition of consecutive sentences was not reviewable as "plain error" because "the legal point is not obvious; indeed[,] it is reasonably in dispute" (emphases in original; internal quotation marks omitted)).

In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ____, 2008 WL 112170 (2008), the Oregon Supreme Court held that Blakely applies to determinations made pursuant to ORS 137.123 as to whether consecutive sentences should be imposed. Accordingly, because asserted "plain error" is determined by reference to "the law existing at the time the appeal is decided, and not as of the time of trial," State v. Jury, 185 Or.App. 132, 136, 57 P.3d 970 (2002) rev. den., 335 Or. 504, 72 P.3d 636 (2003), the claim of error satisfies the requisites of error apparent on the face of the record, as prescribed in State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990).

The question remains whether we should affirmatively exercise our discretion to consider and correct that error. See, e.g., Jury, 185 Or.App. at 138, 57 P.3d 970 (reiterating that, under Ailes, the determination of whether a claim of error satisfies the requirements of "plain error" is merely the first step in a "two-step process"). Factors that bear on our exercise of discretion include the following:

"[T]he 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 was, in some manner, presented with both sides of the issue and given an opportunity to correct any error."

Ailes, 312 Or. at 382 n. 6, 823 P.2d 956.

In Ramirez, 343 Or. at 513-14, 173 P.3d 817, the court further indicated that, in assessing the "competing interests of the parties," a defendant's interest in resentencing is minimal if "there is no legitimate debate" about whether a departure sentence is warranted. Similarly, the court concluded that "the ends of justice" would not be advanced when "the evidence on a sentencing factor is overwhelming." Id. In Fults, 343 Or. at 523, 173 P.3d 822, the court listed several additional considerations, including whether there was a "possibility that [a] defendant made a strategic choice not to object to [a] sentence" and "the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings."

Consistently with Ailes, as amplified by Ramirez and Fults, we affirmatively exercise our discretion to consider and correct the trial court's error in imposing the consecutive sentence for the following reasons: First, given the timing in this case, it is highly unlikely that defendant made a "strategic choice" to forgo his present objection to the consecutive sentence. Accord Fults, 343 Or. at 523, 173 P.3d 822 (noting that the "possibility that defendant made a strategic choice not to object to the sentence" militates against exercise of Ailes discretion). That is so because defendant was sentenced in December 2003 — six months before Blakely, the predicate for such an objection, issued. Thus, the circumstances pertaining to possible "strategic waiver" here differ qualitatively from those in cases arising in the post-Blakely /pre-Ice "window" in which criminal defendants began with increasing frequency to raise constitutional challenges to judicial factfinding in imposing consecutive sentences pursuant to ORS 137.123. See, e.g., State v. Tanner, 210 Or.App. 70, 150 P.3d 31 (2006), vac'd and rem'd, 343 Or. 554, 173 P.3d 831 (2007) (remanded, along with six other cases, for resentencing in the light of Ice).

Second, considering and correcting the asserted error here will not subvert the judicial system's "interest in requiring preservation of error." Fults, 343 Or. at 523, 173 P.3d 822. That is so because (again) defendant was sentenced in December 2003, before Blakely issued — and, given the state of the law at that time, we have little doubt that, if defendant had, with remarkable prescience, raised an Ice-like challenge to the consecutive sentence, the trial court would have flatly rejected such a challenge. Thus, giving the sentencing court an "opportunity to correct any error," Ailes, 312 Or. at 382 n. 6, 823 P.2d 956, would not have yielded a different result, obviating the need for appellate review.

Third, as to the "gravity of the error," id., the consecutive sentence is 60 months in length, which is very substantial.

Fourth, the circumstances here are unlike those in Ramirez or Fults, where the procedural posture and evidence were such that it was highly unlikely that a remand would make any practical difference — and, thus, a remand would merely result in "unnecessary repetitive sentencing proceedings." Fults, 343 Or. at 523, 173 P.3d 822. Specifically, unlike in Ramirez, 343 Or. at 513, 173 P.3d 817, given the totality of the evidence — and, particularly, the circumstantial intertwining of the burglary and the robbery — there is a "legitimate debate" here as to whether a jury would render the findings required under ORS 137.123(2) or ORS 137.123(5) to support the imposition of a consecutive sentence. See Ramirez, 343 Or. at 513, 173 P.3d 817 ("On this record, no reasonable factfinder (whether a judge or a jury) could conclude anything other than that the victim suffered a permanent injury."). Further, unlike in Fults, 343 Or. at 523, 173 P.3d 822, the enhanced (consecutive) sentence imposed here was not imposed concurrently with another sentence that was not challenged on appeal. Consequently, a remand is consonant with "the ends of justice" in this case. Aile...