State v. Decleve

528

Submitted April 30, 2018; remanded for resentencing, otherwise affirmed

September 25, 2019

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERIC FRANCISCO DECLEVE,

Defendant-Appellant.

Lincoln County Circuit Court

972222; A163388

450 P3d 999

Defendant appeals from a judgment of conviction for two counts of rape in the

second degree, ORS 163.365, and two counts of delivery of a controlled substance

to a minor, ORS 475.906, challenging the sentence imposed after a guilty plea.

Specifically, defendant contends that the trial court erred when it failed to apply

the “200 percent” rule from OAR 213-012-0020(2)(b) after it applied the “shift-

to-I” rule from OAR 213-012-0020(2)(a)(B). Although defendant did not preserve

that argument, he contends that the trial court plainly erred and that the Court

of Appeals should exercise its discretion to correct that error. Held: The trial

court plainly erred. The Court of Appeals has repeatedly held that, if a trial court

applies the “shift-to-I” rule, it must also apply the “200 percent rule.”

Remanded for resentencing; otherwise affirmed.

Thomas O. Branford, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and David O. Ferry, Deputy Public Defender, Office

of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Timothy A. Sylwester, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Mooney, Judge.

POWERS, J.

Remanded for resentencing; otherwise affirmed.

Cite as 299 Or App 528 (2019) 529

POWERS, J.

In this criminal case, we address whether a trial

court commits plain error when it sentences a defendant

using the “shift to I” rule required by OAR 213-012-0020

(2)(a)(B), but neglects to apply the “200 percent rule” in OAR

213-012-0020(2)(b). Defendant asserts that the trial court

committed plain error and that we should exercise our dis-

cretion to correct the error as we have done in prior similar

cases. The state argues that we should decline plain-error

review, because the record is not clear that the court should

have used the shift-to-I rule in the first place and, had

defendant raised the 200-percent rule at sentencing, the

parties would have had an opportunity to develop the record

further to determine whether those rules applied under the

circumstances of this case. As explained below, we agree

with defendant’s arguments and remand for resentencing.

The pertinent facts are undisputed. In 1997, defen-

dant, who was 24 years old at the time, enticed four young

girls who were skipping their middle school classes to come

to his home by offering them marijuana. When they arrived

at defendant’s home, he did not produce any marijuana, and

two of the girls left.

Defendant then proceeded to rape both girls, who

were 11 and 12 years old at the time. He then produced mar-

ijuana, and both girls smoked with him. One of the girls

reported the incident the following morning, which triggered

an investigation. Defendant was indicted for various offenses

and then absconded, even living outside the country at

times.

In 2016, defendant pleaded guilty to two counts of

second-degree rape and two counts of delivering a controlled

substance to a minor. At sentencing, the state argued that

the sentences for the second-degree rape convictions should

be consecutive, and that the sentences for the delivery con-

victions should be served concurrently with each other, but

consecutive to the rape sentences. Defendant argued that,

because the crimes took place in “one criminal episode,”

the sentences for the delivery convictions should be concur-

rent with the second-degree rape sentences. Defendant also

530 State v. Decleve

asserted that, if the court were to impose the sentences con-

secutively, then the shift-to-I rule would apply to the deliv-

ery convictions.

The trial court sentenced defendant to 75 months’

incarceration on each second-degree rape conviction as

required by ORS 137.700(2)(a)(L) and ordered one of the rape

sentences to be served consecutively to the other.1 Further,

the trial court sentenced defendant on each of the delivery

convictions to 18 months’ incarceration to be served concur-

rently with each other, but consecutively to the rape sen-

tences, for a total sentence of 168 months. In so doing, the

court applied the shift-to-I rule when it calculated defen-

dant’s criminal history score on the delivery convictions.

The court did not, however, apply the 200-percent rule,

which was not raised by any party at sentencing.

On appeal, defendant argues that the trial court

committed plain error by failing to apply the 200-percent

rule required by OAR 213-012-0020(2)(b) after it applied

the shift-to-I rule required by OAR 213-012-0020(2)(a)(B).2

Relying on State v. Longenecker, 175 Or App 33, 27 P3d 509,

rev den, 332 Or 656 (2001), and State v. Skelton, 153 Or App

580, 957 P2d 585, rev den, 327 Or 448 (1998), defendant

urges us to exercise our discretion to correct the plain error

as we have done in similar cases. The state remonstrates

1

ORS 137.700 has since been amended after defendant committed his

crimes. Because those amendments do not affect our analysis, we refer to the

current version of the statute.

2

Although the rule has been amended several times since defendant’s con-

duct, we refer to the current version of OAR 213-012-0020, because the amend-

ments do not affect our analysis. OAR 213-012-0020 provides, in part:

“(2)(a) Subject to the provisions of subsection (b) of this section, the pre-

sumptive incarceration term of the consecutive sentences is the sum of:

“(A) The presumptive incarceration term or the prison term defined in

OAR 213-008-0005(1) imposed pursuant to a dispositional departure for the

primary offense, as defined in OAR 213-003-0001(17); and

“(B) Up to the maximum incarceration term indicated in the Criminal

History I Column for each additional offense imposed consecutively.

“(b) The total incarceration term of the consecutive sentences, includ-

ing the incarceration term for the primary offense, shall not exceed twice

the maximum presumptive incarceration term or the prison term defined in

OAR 213-008-0005(1) imposed pursuant to a dispositional departure of the

primary sentence except by departure as provided by OAR 213-008-0007.”

Cite as 299 Or App 528 (2019) 531

that defendant’s unpreserved claim is not reviewable as

plain error, because, in its view, the trial court was not

required to apply either the shift-to-I rule or the 200-

percent rule under the facts of this case. The state argues

that the two unlawful deliveries were not part of the “same

criminal episode” as the two rapes.

To qualify for plain-error review under ORAP 5.45,

an error must be: (1) an error of law; (2) obvious and not

reasonably in dispute; and (3) apparent on the record with-

out requiring an appellate court to choose among competing

inferences. See, e.g., State v. Vanorum, 354 Or 614, 629, 317

P3d 889 (2013); Ailes v. Portland Meadows, 312 Or 376, 381-

82, 823 P2d 956 (1991). If the three-pronged plain-error test

has been satisfied, we must then decide whether to exercise

our discretion to review the error and explain our reasons

for doing so. Vanorum, 354 Or at 630 (so stating); Ailes, 312

Or at 382 (same).

On the first prong, the parties do not dispute that

the trial court’s sentencing error, if any, is a legal one. Thus,

we begin with the second prong of the plain-error test, viz.,

whether defendant’s claim is obvious and not reasonably in

dispute. As explained below, we conclude that defendant’s

claim of sentencing error meets that part of the plain-error

test.

Under the sentencing guidelines, when multiple con-

secutive sentences are imposed for crimes committed during

the same criminal episode, only the primary offense is sen-

tenced based on the offender’s true criminal history; the

additional offenses are classified under column I as required

by OAR 213-012-0020(2)(a)(B). That is the shift-to-column-I

rule or shift-to-I rule. See generally State v. Worth, 274

Or App 1, 24-26, 360 P3d 536 (2015), rev den, 359 Or 667

(2016) (providing overview of the sentencing guidelines and

explaining the shift-to-I rule). A different subsection of the

same rule—colloquially referred to as the 200-percent rule—

generally requires multiple consecutive sentences to be lim-

ited to twice the presumptive sentence imposed for the pri-

mary offense. OAR 213-012-0020(2)(b); see also Worth, 274

Or App at 26 (explaining the 200-percent rule for nondepar-

ture sentences).

532 State v. Decleve

Both the shift-to-I rule and the 200-percent rule

apply when a sentencing court imposes consecutive sen-

tences on offenses that arise out of the “same criminal epi-

sode.” State v. Cuevas, 358 Or 147, 155, 156 n 8, 361 P3d

581 (2015). A “criminal episode” is “continuous and uninter-

rupted conduct that establishes at least one offense and is

so joined in time, place and circumstances that such conduct

is directed to the accomplishment of a single criminal objec-

tive.” ORS 131.505(4).

In a long line of cases, we consistently have held

that, once a sentencing court applies the shift-to-I rule, the

200-percent rule also applies to a defendant’s sentence. See,

e.g., State v. Carrillo, 286 Or App 642, 644, 399 P3d 1040

(2017) (holding that the trial court committed plain error by

not applying the 200-percent rule where the parties treated

all of the counts as arising out of the same criminal epi-

sode); Worth, 274 Or App at 26 (“[A] sentence that comports

with the ‘shift-to-I’ rule, but violates the ‘200%’ rule, must

be adjusted to comply with the latter.”); State v. Lepierre, 235

Or App 391, 395-96, 232 P3d 982 (2010) (reversing sentence

where state conceded that consecutive sentence imposed

on burglary conviction was subject to 200-percent rule and

subject to plain-error review); see also Skelton, 153 Or App

at 592-93, (concluding that the trial court committed plain

error by failing to apply the 400-percent rule, which is now

codified at OAR 213-008-0007(3) and limits the maximum

incarceration term that may be imposed for all of the con-

secutive sentences together by departure).

In this case, it is undisputed that the trial court

determined that the shift-to-I rule applied to the delivery

convictions and that, despite that determination, the trial

court did not apply the 200-percent rule. Under that sce-

nario, the sentencing court must finish what it started.

Consistent with our prior cases, we conclude that the trial

court erred by not applying the 200-percent rule after it

determined that the shift-I-rule applied. See Worth, 274 Or

App at 26 (observing that “a sentence that comports with

the ‘shift-to-I’ rule, but violates the ‘200%’ rule, must be

adjusted to comply with the latter”). In short, we conclude

that, given the long line of cases correcting this type of

Cite as 299 Or App 528 (2019) 533

error, defendant’s claim readily meets the second prong of

the plain-error test requiring the error to be “apparent,” i.e.

obvious and not reasonably in dispute.

Turning to the third prong of the plain-error test—

whether the error is apparent on the record—the state

argues that the record in this case does not establish that

defendant committed the two unlawful delivery offenses as

part of the same criminal episode as the two rape offenses.

The state contends: “Because [defendant] did not commit the

unlawful-delivery offenses until after he had already com-

pleted the rapes, it cannot be said that the unlawful-delivery

offenses were merely incidental or preparatory to commis-

sion of the rape offenses[.]” Thus, in the state’s view, because

the record does not clearly demonstrate that the trial court

had to use the shift-to-I rule in the first place, it is not plain

error for the trial court to fail to use the 200-percent rule

under these circumstances.

Although the state makes a plausible argument

about the application of the shift-to-I rule, the propriety

of the trial court’s decision in that regard is not before us

on appeal. The state did not cross-assign error to the trial

court’s determination that the shift-to-I rule applied and

thus we have no occasion to review that determination.

Rather, the question before us is whether it is apparent on

this record that the court was required to apply the 200-

percent rule once it had already determined the shift-to-I

rule applied or whether we have to go outside the record to

choose between competing inferences to so conclude. Given

that the trial court already determined that the shift-to-I

rule applies, there are no competing inferences and the same

factual determinations, whether they be explicit or implicit,

should have compelled the court to apply the 200-percent

rule. As we repeatedly have held, once a trial court deter-

mines that the shift-to-I rule applies to a sentence, the 200-

percent rule also applies for nondeparture sentences. See,

e.g., Carrillo, 286 Or App at 644; Lepierre, 235 Or App at

395-96. Accordingly, defendant’s claim of sentencing error

meets the third prong of the plain-error test.

Finally, having concluded that defendant’s claim

satisfies the three-pronged test for plain-error, we still must

534 State v. Decleve

determine whether to exercise our discretion to correct the

error. As the Supreme Court has explained:

“That discretion entails making a prudential call that

takes into account an array of considerations, such as the

competing interests of the parties, the nature of the case,

the gravity of the error, and the ends of justice in the par-

ticular case. Ultimately, a decision to review a plain error

is one to be made with the ‘utmost caution’ because such

review undercuts the policies served by the preservation

doctrine.”

Vanorum, 354 Or at 630-31 (citations omitted). Defendant

urges us to exercise our discretion just as we have done in

prior cases that presented similar sentencing errors, noting

that the application of the 200-percent rule in his case would

have reduced his sentence by 18 months. See Longenecker,

175 Or App at 36 (exercising discretion to correct as plain

error sentence that exceeds the maximum); see also Carrillo,

286 Or App at 644 (accepting state’s concession on failure to

apply 200-percent rule and exercising discretion to address

claim as one of plain error). The state does not distinguish

those cases; rather, it seeks a remand under former ORS

138.222(5)(a) (2015), which provided that a remand was

required if “the appellate court determines that the sen-

tencing court, in imposing a sentence in the case, committed

an error that requires resentencing.”3 We agree with both

parties’ arguments.

First, we agree with defendant’s argument and, for

the same reasons explained in previous cases, exercise our

discretion to address defendant’s sentencing claim given

the gravity of the error and the ends of justice. See Carrillo,

286 Or App at 644 (exercising discretion to correct as plain

error consecutive sentences that exceeded maximum allow-

able under the 200-percent rule by seven months); State v.

Truong, 249 Or App 70, 74-75, 274 P3d 873, rev den, 352 Or

565 (2012), cert den, 569 US 963 (2013) (exercising discretion

3

Former ORS 138.222 (2015) was repealed in 2017 by Senate Bill (SB) 896

(2017). Or Laws 2017, ch 529, § 26. Because the judgment in this case was entered

before the January 1, 2018, effective date of SB 896, its provisions do not apply.

Or Laws 2017, ch 529, § 28 (providing that SB 896 applies “on appeal from a judg-

ment or order entered by the trial court on or after the effective date of this 2017

Act”).

Cite as 299 Or App 528 (2019) 535

to correct as plain error consecutive sentences that exceeded

the maximum by four months). Second, we agree with the

state’s argument that remand is appropriate under former

ORS 138.222(5)(a). Because we remand for resentencing, the

parties are free to argue to the trial court about the appro-

priate sentence under the circumstances of the case.

Remanded for resentencing; otherwise affirmed.