State v. Shields

309 Or.App. 516

482 P.3d 784

STATE of Oregon, Plaintiff-Respondent,

v.Derrick Earl SHIELDS, Defendant-Appellant.

A167858

Court of Appeals of Oregon.

Argued and submitted February 14, 2020.

March 3, 2021

Bear Wilner-Nugent, Portland, argued the cause and filed the brief for appellant.

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

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant appeals a judgment sentencing him to 45 months in prison and three years of post-prison supervision on a conviction for first-degree burglary. He argues that the sentencing court miscalculated his criminal history score by improperly including five out-of-state convictions. Defendant contends that, as a result, he was erroneously placed in the highest category, "A." Under OAR 213-004-0011(1), prior out-of-state convictions are to be included in a defendant's criminal history only "if the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law." As to two of defendant's out-of-state convictions, we agree with defendant that the sentencing court erred. Accordingly, we reverse and remand for resentencing.

FACTS

Defendant was convicted of one count of first-degree burglary, ORS 164.225, and one count of first-degree aggravated theft, ORS 164.057. He does not challenge his convictions.

He also does not challenge his sentence on the theft count, which was a departure sentence jointly recommended by the parties. We therefore discuss only the facts relevant to defendant's burglary sentence.

At sentencing, the state argued that defendant had five prior Georgia convictions that should be included in his criminal history score as corresponding to Oregon person felonies or person Class A misdemeanors. Specifically, the state established that defendant has two prior convictions for first-degree criminal damage to property, OCGA § 16-7-22(a), which it argued corresponds to unlawful use of a weapon, ORS 166.220, or recklessly endangering another person, ORS 163.195. The state established that defendant has a prior conviction for aggravated assault, OCGA § 16-5-21(a), which it argued corresponds to first-degree assault, ORS 163.185, unlawful use of a weapon, ORS 166.220, or menacing, ORS 163.190. The state established that defendant has a prior conviction for possession of a firearm during the commission of a felony, OCGA § 16-11-106(b), which it argued corresponds to unlawful use of a weapon, ORS 166.220, recklessly endangering another person, ORS 163.195, or menacing, ORS 163.190. Finally, the state asserted that defendant has a prior conviction for battery, OCGA § 16-5-23.1, which it argued corresponds to fourth-degree assault, ORS 163.160.¹

In response, defendant opposed including any Georgia convictions in his criminal history score, arguing that the state had "failed to prove that any of the Georgia convictions have any correlation to Oregon crimes."

After hearing the parties’ arguments, the sentencing court agreed with the state that all five Georgia convictions correspond to Oregon offenses. On that basis, the court placed defendant in criminal history category "A" and sentenced him on the burglary count to the presumptive term of 45 months in prison and three years of post-prison supervision. The court explained:

"To me, the only argument is kind of academic on whether it's an 8A or an 8B under the sentencing guidelines grid, looking at all of those offenses that were mentioned as person misdemeanors at least, if not person felonies.

"I believe that they do constitute at least person misdemeanors and that they would constitute either shooting recklessly, endangering,^[2] or menacing.

"In addition, I believe they constitute unlawful use of a weapon. And those four in and of themselves would be enough, but I looked at State v. Higgins [, 165 Or. App. 442, 998 P.2d 222 (2000)]. Under Higgins analysis on battery, I do find that when you leave a bite mark,^[3] that is temporary impairment as injury. That's beyond the harassment. We find that to constitute the elements of an assault.

"So we have at least five person misdemeanors or at least four without looking at merger argument on the person felonies.

"I believe that there's three person felonies for sure there. * * * [A]nd that's without combining the two person misdemeanors into a person felony.

"So at this point, I'm going to sentence you as an 8A, which is 45 months in the Oregon Department of Corrections."

On appeal, defendant reprises his arguments to the sentencing court, contending that his "prior Georgia offenses, correctly compared * * * to current Oregon crimes, do not suffice to place [him] in criminal history category A." In defendant's view, none of his Georgia offenses correspond to Oregon offenses, and so he should have been placed in category "I." The state disagrees, maintaining that no error occurred.

ANALYSIS

A. Legal Principles

Under the Oregon sentencing guidelines, a defendant's criminal history score is calculated by counting his or her prior felony convictions, Class A misdemeanor convictions, and felony-equivalent juvenile adjudications. OAR 213-004-0007. The sentencing guidelines distinguish between "person" and "non-person" crimes. "Person" felonies are defined in OAR 213-003-0001(14), and "person" Class A misdemeanors are defined in OAR 213-003-0001(15). For criminal history purposes, two person Class A misdemeanors count as one person felony. OAR 213-004-0008.

Defendant has no established juvenile adjudications, so we limit our discussion to adult convictions. A defendant with three or more prior person felony convictions belongs in criminal history category A, which is the highest category. OAR 213-004-0007. Categories B, C, and D apply to defendants with one or two prior person felony convictions. Id . Categories E, F, G, and H apply to defendants with various numbers of nonperson felony or misdemeanor convictions but no prior person felony conviction. Id . The lowest category, I, applies to defendants with no prior felony or Class A misdemeanor convictions.

Out-of-state convictions are to be included in a defendant's criminal history score, but only if the elements of the out-of-state offense "correspond to the elements of an Oregon felony or Class A misdemeanor." State v. Tapp , 110 Or. App. 1, 4, 821 P.2d 1098 (1991) (discussing former OAR 253-04-0011 (1991), renumbered as OAR 213-004-0011 (1996) ); OAR 213-004-0011(1) ("An out-of-state adult conviction shall be used to classify the offender's criminal history if the elements of the offense would have constituted a felony or Class A misdemeanor under current Oregon law."). As to "person" crimes in particular, "if the elements of the offense would have constituted an offense under Oregon law listed at OAR 213-003-0001(14) or (15)," then the out-of-state convictions "shall be classified as person felonies or person Class A misdemeanors." OAR 213-004-0011(3).

It is the state's burden to prove what prior convictions a defendant has. State v. Torres , 182 Or. App. 156, 163, 48 P.3d 170, adh'd to on recons. , 184 Or. App. 515, 59 P.3d 47 (2002). If a presentence report was prepared, "the defendant's criminal history as set forth in the presentence report shall satisfy the state's burden of proof as to the defendant's criminal history," except insofar as the defendant gives notice of a factual error, in which case the state must prove "by a preponderance of evidence any disputed part of the defendant's criminal history." ORS 137.079(5) ; see also Torres , 182 Or. App. at 165, 48 P.3d 170 (notice is required only to allege a factual error in the presentence report, not to challenge "the legal consequence of an accurate report"). Alternatively, the district attorney may provide a "criminal history summary," subject to the same dispute process as a presentence report. OAR 213-004-0013(3). Or, as occurred here, the state may offer evidence at sentencing to prove prior convictions, such as (but not limited to) certified copies of prior charging instruments and judgments. See OAR 213-004-0013 ; State v. Santos , 225 Or. App. 392, 399, 201 P.3d 285, rev. den. , 346 Or. 116, 205 P.3d 888 (2009).

Once the state establishes the existence of an out-of-state conviction, OAR 213-004-0011 requires element matching to determine if the out-of-state offense corresponds to an Oregon offense. State v. R-Robinson , 277 Or. App. 107, 108, 369 P.3d 1242 (2016) ; State v. Provencio , 153 Or. App. 90, 95, 955 P.2d 774 (1998). The out-of-state offense must have "elements that are the same as or nearly the same as the elements of the Oregon crime to which it is compared." State v. Guzman , 366 Or. 18, 37, 455 P.3d 485 (2019) (internal quotation marks and emphasis omitted). Significantly, the sentencing court is limited to comparing the elements of the offenses. Its task is not to determine whether defendant's out-of-state conduct would constitute an Oregon offense. "Had the drafters intended conduct to be considered, they could have drafted a rule that was not limited only to consideration of the elements of an offense." State v. Golden , 112 Or. App. 302, 306, 829 P.2d 88 (1992).

If the elements of an out-of-state offense are broader and more inclusive than an Oregon offense—such that some ways of committing the out-of-state offense correspond to an Oregon offense, but others do not—it is the state's burden to produce the out-of-state charging instrument and judgment to establish that the defendant committed it in a way that corresponds to an Oregon offense. R-Robinson , 277 Or. App. at 108, 369 P.3d 1242. If the state fails to do so, it fails to meet its burden of proof, and the out-of-state conviction cannot be included in the defendant's criminal history score. Provencio , 153 Or. App. at 95, 955 P.2d 774 ; see also Torres , 182 Or....