State v. Shields

516

Argued and submitted February 14, 2020; reversed and remanded for

resentencing, otherwise affirmed March 3, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

DERRICK EARL SHIELDS,

Defendant-Appellant.

Jackson County Circuit Court

17CR26927; A167858

482 P3d 784

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,

ORS 164.225. At the time of sentencing, defendant had no prior Oregon convic-

tions but had prior Georgia convictions. Relying on five Georgia convictions, the

sentencing court placed defendant in criminal history category “A,” the highest

category, for purposes of the sentencing guidelines. Defendant contends that the

sentencing court erred in its application of OAR 213-004-0011(1), which provides

that a prior out-of-state conviction is to be included in a defendant’s criminal

history score only if the elements of the out-of-state offense correspond to an

Oregon felony or Oregon Class A misdemeanor. Defendant maintains that the

Georgia offenses do not correspond to Oregon offenses. Held: The sentencing

court did not err by including in defendant’s criminal history score his two prior

Georgia convictions for first-degree criminal damage to property, OCGA § 16-7-

22(a). However, it erred by including his prior Georgia convictions for aggravated

assault, OCGA § 16-5-21(a), and possession of a firearm during the commission of

a felony, OCGA § 16-11-106(b).

Reversed and remanded for resentencing; otherwise affirmed.

David G. Hoppe, Judge.

Bear Wilner-Nugent 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.

Cite as 309 Or App 516 (2021) 517

AOYAGI, J.

Reversed and remanded for resentencing; otherwise

affirmed.

Tookey, J., specially concurring.

518 State v. Shields

AOYAGI, J.

Defendant appeals a judgment sentencing him to

45 months in prison and three years of post-prison supervi-

sion 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 misde-

meanor under Oregon law.” As to two of defendant’s out-

of-state convictions, we agree with defendant that the sen-

tencing 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 aggra-

vated theft, ORS 164.057. He does not challenge his convic-

tions. 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 per-

son felonies or person Class A misdemeanors. Specifically,

the state established that defendant has two prior convic-

tions 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 defen-

dant 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,

Cite as 309 Or App 516 (2021) 519

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 sentenc-

ing court agreed with the state that all five Georgia convic-

tions correspond to Oregon offenses. On that basis, the court

placed defendant in criminal history category “A” and sen-

tenced him on the burglary count to the presumptive term

of 45 months in prison and three years of post-prison super-

vision. 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 mis-

demeanors 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 P2d 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.

1

The state also identified in its sentencing memorandum some Georgia

convictions for drug offenses. The sentencing court never addressed the drug

offenses, as the person offenses were dispositive, and the state does not discuss

them on appeal. To the extent those convictions are relevant, the sentencing

court may address them at resentencing.

2

Although the court’s phrasing as punctuated in the transcript is awkward,

it is clear in context (and undisputed) that, when the court said, “shooting reck-

lessly, endangering,” it was referring to the Oregon offense of recklessly endan-

gering another person.

3

The charging instrument for defendant’s Georgia battery conviction alleged

that defendant caused a “bite mark” to the victim.

520 State v. Shields

“So we have at least five person misdemeanors or at

least four without looking at merger argument on the per-

son 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 defen-

dant’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 misdemean-

ors 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 defen-

dants 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,

Cite as 309 Or App 516 (2021) 521

applies to defendants with no prior felony or Class A misde-

meanor 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 P2d 1098 (1991) (discussing former OAR

XXX-XX-XXXX (1991), renumbered as OAR 213-004-0011

(1996)); OAR 213-004-0011(1) (“An out-of-state adult convic-

tion shall be used to classify the offender’s criminal history

if the elements of the offense would have constituted a fel-

ony 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 convic-

tions a defendant has. State v. Torres, 182 Or App 156, 163,

48 P3d 170, adh’d to on recons, 184 Or App 515, 59 P3d 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 crim-

inal 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 defen-

dant’s criminal history.” ORS 137.079(5); see also Torres, 182

Or App at 165 (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 dis-

trict 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 P3d 285, rev den, 346 Or

116 (2009).

Once the state establishes the existence of an out-

of-state conviction, OAR 213-004-0011 requires element

522 State v. Shields

matching to determine if the out-of-state offense corre-

sponds to an Oregon offense. State v. R-Robinson, 277 Or

App 107, 108, 369 P3d 1242 (2016); State v. Provencio, 153 Or

App 90, 95, 955 P2d 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 P3d 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 con-

sideration of the elements of an offense.” State v. Golden, 112

Or App 302, 306, 829 P2d 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. 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; see also Torres, 182 Or App at 174-75 (remanding

for resentencing based on such error); Golden, 112 Or App at

306-07 (same).4 There is no such issue when the elements of

an out-of-state offense are narrower than an Oregon offense.

“When a foreign offense differs from an Oregon offense only

because it is narrower, that difference will not preclude the

offense from being a close element match.” Guzman, 366 Or

at 37 n 7. That is because violation of the out-of-state statute

“necessarily constitute[s] a violation of the Oregon statute.”

Provencio, 153 Or App at 95.

4

To illustrate, in Golden, the defendant was convicted of a Pennsylvania

offense that could be committed in multiple ways, only one of which corresponded

to the Oregon offense of menacing. The state failed to produce the Pennsylvania

accusatory instrument and judgment, so it was unknown which way the defen-

dant had committed the offense. Given that failure of proof, the trial court erred

in counting the Pennsylvania conviction, and the defendant was entitled to resen-

tencing. Golden, 112 Or App at 306-07.

Cite as 309 Or App 516 (2021) 523

We review the calculation of a defendant’s criminal

history category—including the treatment of out-of-state

convictions—for legal error. See ORS 138.105(7), (8)(c)(A);

Provencio, 153 Or App at 94. Whether the elements of an

out-of-state offense correspond to an Oregon offense is a

question of law. See State v. Gunter, 187 Or App 461, 462, 67

P3d 996 (2003).

Here, the sentencing court concluded that defendant

has five Georgia convictions for offenses that correspond to

Oregon person felonies or person Class A misdemeanors.

We consider each of the Georgia convictions in turn. Before

doing so, we note that our task is somewhat complicated

by the sentencing court’s minimal explanation of its legal

reasoning. Except for the battery conviction, the state had

identified multiple Oregon offenses as corresponding to each

Georgia conviction. Given the numerous offenses in play, it

would have been helpful for the sentencing court to address

each Georgia conviction individually and to specify the cor-

responding Oregon offense(s), even if it did not engage in

the actual element matching on the record. In some cases,

the minimal explanation given here could impede appellate

review. In this case, however, the parties agree as to which

Georgia convictions the sentencing court relied on, as well

as agree as to which Oregon offenses the court considered

to correspond to those Georgia offenses. The parties also

agree as to the applicable legal standard, and neither party

suggests that the sentencing court applied an incorrect

legal standard. The only dispute is whether the sentenc-

ing court applied the legal standard correctly to the par-

ticular offenses at issue. As such, the universe of relevant

legal issues is clearly defined, and the questions presented

on appeal are purely questions of law. We therefore proceed

to the merits of the parties’ arguments.5

5

In a concurring opinion, our colleague suggests that it is somehow improper

for us to address the merits of the parties’ arguments in this case, either because

the sentencing court did not explain its reasoning well enough on the record or

because the state did not meet its evidentiary burden. See 309 Or App at 529,

533-34 (Tookey, J., specially concurring). That position is both perplexing and

untethered to defendant’s arguments. The concurrence suggests that the sen-

tencing court may have applied the wrong legal standard, see id. at 529, 533,

but neither party has suggested that it did, nor does the record indicate that

it did. We have never treated a lower court’s silence as to the details of its rea-

soning to mean that it applied the wrong legal standard. The concurrence also

524 State v. Shields

B. First-Degree Criminal Damage to Property, OCGA

§ 16-7-22(a)

Defendant has two prior convictions for first-degree

criminal damage to property, OCGA § 16-7-22(a). The

sentencing court agreed with the state that that Georgia

offense corresponds to the Oregon offenses of unlawful use

of a weapon and/or recklessly endangering another person.

On appeal, defendant challenges that conclusion, argu-

ing that the Georgia offense does not correspond to either

Oregon offense. In response, the state focuses on recklessly

endangering another person. We agree with the state that

the Georgia offense corresponds to that Oregon offense.

A person commits the Oregon offense of recklessly

endangering another person “if the person recklessly engages

in conduct which creates a substantial risk of serious phys-

ical injury to another person.” ORS 163.195(1). “Recklessly”

means that the person “is aware of and consciously disre-

gards a substantial and unjustifiable risk that the result

will occur or that the circumstance exists.” ORS 161.085(9).

The risk “must be of such nature and degree that disregard

thereof constitutes a gross deviation from the standard of

care that a reasonable person would observe in the situa-

tion.” Id.

suggests that it is unclear which Georgia convictions the sentencing court used

to place defendant in category A. See id. at 533. But we agree with the parties

that it is apparent from the court’s oral ruling and disposition which Georgia

convictions it used. We also agree with the parties that it is purely a legal ques-

tion whether the elements of those Georgia offenses match the elements of the

cited Oregon offenses. Both parties have fully briefed those legal questions, and

it does not require any “divination” or “guesswork” to compare the legal elements

of two known statutes. See id. at 529. Nor is there any reason to exclude from

our consideration Oregon offenses raised at the sentencing hearing, see id. at

531-32, when defendant has made no distinction between the state’s arguments

in its sentencing memorandum and the state’s arguments at hearing. Finally,

as for the concurrence’s suggestion that the state failed to meet its evidentiary

burden, id. at 534, defendant has never made that argument—except as to the

battery conviction, which everyone agrees we need not reach (and which we do

not reach)—which alone would make it an improper basis for reversal. In any

event, defendant is correct not to have made it, because the record here contains

precisely what is necessary to identify the out-of-state offenses at issue and com-

pare their elements to Oregon offenses. None of the cases cited in the concurring

opinion support a contrary conclusion. See id. at 529-30, 533 n 3. In sum, the

parties have presented developed arguments on purely legal issues on which the

sentencing court ruled, and there is nothing procedurally improper about our

addressing those arguments and resolving this case on the issues presented.

Cite as 309 Or App 516 (2021) 525

A person commits the Georgia offense of first-

degree criminal damage to property if the person “know-

ingly and without authority interferes with any property

in a manner so as to endanger human life.” OCGA § 16-7-

22(a)(1).6 As to “the elements of criminal damage to prop-

erty,” the Georgia Supreme Court has construed the phrase

“in a manner so as to endanger human life” as requiring

reckless endangerment. Carthern v. State, 272 Ga 378, 380,

529 SE2d 617 (2000) (analyzing the offense’s statutory ele-

ments and concluding that “in a manner so as to endan-

ger human life” means “reckless endangerment rather than

actual endangerment”).

The Georgia offense of first-degree criminal dam-

age to property is narrower than the Oregon offense of

recklessly endangering another person, both in that the

Georgia offense requires knowing and unauthorized inter-

ference with property (whereas the Oregon offense contains

no such limitation) and in that the Georgia offense requires

the reckless endangerment of human life (whereas a sub-

stantial risk of serious physical injury satisfies the Oregon

statute). However, an out-of-state offense that is narrower

than an Oregon offense is still considered to correspond to

the Oregon offense. Guzman, 366 Or at 37 n 7. Applying ele-

ment matching, we agree with the state that the Georgia

offense corresponds to an Oregon offense.

Accordingly, the sentencing court did not err in

including defendant’s two prior convictions for the Georgia

offense of first-degree criminal damage to property in defen-

dant’s criminal history score. That offense corresponds to

the Oregon offense of recklessly endangering another per-

son, which is a person Class A misdemeanor. ORS 163.195(2)

(“Recklessly endangering another person is a Class A misde-

meanor.”); OAR 213-003-0001(15) (including “ORS 163.195

6

An alternative way to commit the Georgia offense of first-degree crimi-

nal damage to property is to “knowingly and without authority and by force or

violence interfere[ ] with the operation of any system of public communication,

public transportation, sewerage drainage, water supply, gas, power, or other

public utility service or with any constituent property thereof.” OCGA § 16-7-

22(a)(1). However, the Georgia charging instrument and judgment establish that

defendant was charged and convicted of twice committing the offense in the way

described in the text, specifically by shooting a firearm in a parking lot and strik-

ing two vehicles.

526 State v. Shields

Recklessly Endanger Another” in the definition of “Person

Class A misdemeanors”). Defendant’s two prior convictions

count as one prior person felony conviction for sentencing

purposes. OAR 213-004-0008.

C. Aggravated Assault, OCGA § 16-5-21(a)

Defendant has a prior conviction for the Georgia

offense of aggravated assault, OCGA § 16-5-21(a). The sen-

tencing court agreed with the state that that Georgia offense

corresponds to the Oregon offenses of unlawful use of a

weapon, menacing, and/or first-degree assault. On appeal,

defendant challenges that conclusion, arguing that the

Georgia offense does not correspond to any of those Oregon

offenses. In response, the state essentially concedes that

point but argues that we should nonetheless affirm because

the Georgia offense corresponds to the Oregon offense of

attempted second-degree assault, ORS 163.175 and ORS

161.405.

We agree with defendant that the Georgia offense

does not correspond to any of the three Oregon offenses on

which the sentencing court relied. Because the state does

not contend otherwise, we need not say more.

As for the state’s new argument, the state essen-

tially asks us to affirm on an alternative basis that was not

raised to the sentencing court. To do so, we would have to

both (1) conclude that the predicate conditions for consid-

ering such an argument are met, as described in Outdoor

Media Dimensions Inc. v. State of Oregon, 331 Or 634,

659-60, 20 P3d 180 (2001), and (2) choose to exercise our

discretion to affirm on a basis raised for the first time on

appeal. Under Outdoor Media Dimensions Inc., it “is a mat-

ter of prudential discretion and not compulsion” whether to

affirm on an alternative basis raised for the first time on

appeal. Biggerstaff v. Board of County Commissioners, 240

Or App 46, 56, 245 P3d 688 (2010).

Here, the state has neither addressed the Outdoor

Media Dimensions Inc. conditions, nor explained why we

should exercise our discretion. Under the circumstances, we

decline to consider the proffered alternative basis to affirm.

Cite as 309 Or App 516 (2021) 527

See State v. Jones, 285 Or App 680, 690-91, 398 P3d 376

(2017) (declining to consider an alternative basis to affirm

raised for the first time on appeal, where the respondent

failed to address the Outdoor Media Dimensions Inc. pre-

requisites); Trent v. Connor Enterprises, Inc., 300 Or App

165, 170, 452 P3d 1072 (2019) (declining to exercise our dis-

cretion under Outdoor Media Dimensions Inc., even assum-

ing that the predicate conditions were met, in part because

the respondent did not ask us to exercise our discretion or

explain why it was appropriate).

Accordingly, the sentencing court erred in includ-

ing defendant’s prior conviction for the Georgia offense of

aggravated assault in his criminal history score.

D. Possession of a Firearm During the Commission of a

Felony, OCGA § 16-11-106(b)

Defendant has a prior conviction for the Georgia

offense of possession of a firearm during the commission of

a felony, OCGA § 16-11-106(b). The sentencing court agreed

with the state that that Georgia offense corresponds to the

Oregon offenses of unlawful use of a weapon, recklessly

endangering another person, and/or menacing. On appeal,

defendant challenges that conclusion, arguing that the

Georgia offense does not correspond to any Oregon offenses.

In response, the state focuses on the Oregon offense of

unlawful use of a weapon.

A person commits the Georgia offense of possession

of a firearm during the commission of a felony if the person

has “on or within arm’s reach of his or her person a firearm

or a knife having a blade of three or more inches in length

during the commission of, or the attempt to commit” any one

of various specified crimes, including “any crime against or

involving the person of another.” OCGA § 16-11-106(b). Here,

according to the Georgia charging instrument and judgment,

defendant was convicted of having a firearm in his posses-

sion during the commission of an “assault.” Under Georgia

law, an “assault” may be committed either by attempting to

commit a violent injury to the person of another or by commit-

ting an act that places another in reasonable apprehension of

immediately receiving a violent injury. OCGA § 16-5-20(a).

528 State v. Shields

Defendant’s charging instrument and judgment do not spec-

ify which type of “assault” he committed.

We agree with defendant that the Georgia offense

does not correspond to recklessly endangering another per-

son or menacing. Because the state does not contend other-

wise, we need not say more.

As for unlawful use of a weapon, as relevant here,

a person commits that offense if the person “[a]ttempts to

use unlawfully against another, or carries or possesses with

intent to use unlawfully against another, any dangerous or

deadly weapon as defined in ORS 161.015.” ORS 166.220

(1)(a). Although there are similarities between the Georgia

offense of possession of a firearm during the commission of

a felony and the Oregon offense of unlawful use of a weapon,

we agree with defendant that the elements do not suffi-

ciently match. Given Georgia’s definition of “assault,” defen-

dant could have committed the Georgia offense at issue by

carrying a firearm while committing an act that placed

another person in reasonable apprehension of immediately

receiving a violent injury, even if defendant did not actu-

ally attempt to commit a violent injury to another person.

OCGA § 16-5-20(a). By contrast, to commit unlawful use of

a weapon, with a firearm, a person must “attempt[ ] to use”

the firearm against another person or “carr[y] or possess[ ]”

the firearm “with intent to use” it against another person.

ORS 166.220(1)(a).

Accordingly, the sentencing court erred in includ-

ing defendant’s prior conviction for the Georgia offense of

possession of a firearm during the commission of a felony in

his criminal history score.

E. Battery, OCGA § 16-5-23.1

The final Georgia conviction at issue is defendant’s

putative prior conviction for battery, OCGA § 16-5-23.1,

which the sentencing court concluded corresponds to the

Oregon offense of fourth-degree assault, ORS 163.160(1),

a person Class A misdemeanor, OAR 213-003-0001(15).

Defendant challenges the state’s proof of the existence of the

battery conviction, as well as argues that the elements of

the offenses do not match.

Cite as 309 Or App 516 (2021) 529

Given defendant’s two prior convictions for the

Georgia offense of first-degree criminal damage to prop-

erty, which equate to one person felony, an additional person

Class A misdemeanor would not have any effect on defen-

dant’s criminal history category. See OAR 213-004-0007.

Defendant concedes that the battery conviction “is essen-

tially a moot issue on appeal.” The state agrees, as do we, so

we do not address the Georgia battery conviction.

CONCLUSION

The sentencing court erred in its calculation of

defendant’s criminal history category. Specifically, it erred

when it counted defendant’s out-of-state convictions for

aggravated assault, OCGA § 16-5-21(a), and possession of

a firearm during the commission of a felony, OCGA § 16-11-

106(b), neither of which correspond to any of the Oregon

offenses identified by the state during sentencing.

Reversed and remanded for resentencing; other-

wise affirmed.

TOOKEY, J., specially concurring.

This case presents an important jurisprudential

issue as to how this court is to review the work of a lower

court. We are asked in this case to review whether the trial

court correctly matched the elements of defendant’s out-

of-state convictions with the elements of an Oregon crime.

However, as I explain below, the trial court’s determination

does not reflect the close element-matching required under

OAR 213-004-0011. Moreover, I cannot even say with cer-

tainty which elements were being matched in the trial court:

that information does not appear anywhere in the record,

nor are the elements of the Georgia crimes for which defen-

dant was convicted enumerated in the Georgia indictment

and judgment that the state submitted to the trial court.

Yet the approach adopted by the majority essentially

requires this court to divine the elements of defendant’s

Georgia convictions that the trial court supposedly used

in determining his criminal history category—apparently

by impermissibly drawing inferences from a character-

ization of defendant’s conduct underlying his Georgia

530 State v. Shields

convictions, rather than looking to the specific elements of

those crimes. Such guesswork not only distorts this court’s

role in the judicial review process, but it also runs counter

to our own case law. See State v. Golden, 112 Or App 302,

305-07, 829 P2d 88 (1992) (reversing and remanding with-

out conducting element-matching analysis where the state

impermissibly relied on a description of the defendant’s con-

duct and had not established the elements of defendant’s

out-of-state offense, nor had the state established that such

offense matched an Oregon offense); State v. Torres, 182 Or

App 156, 165, 48 P3d 170, adh’d to on recons, 184 Or App

515, 59 P3d 47 (2002) (remanding for resentencing with-

out conducting element-matching analysis where the state

had not carried its burden, because it did not establish the

elements of defendant’s out-of-state offense nor that that

offense matched an Oregon offense).

In short, I think our role in reviewing a trial court’s

decision—in this case, or in cases generally—should not

include an attempt to shoulder the state’s unmet evidentiary

burdens or to carry out the very work that was required of

the trial court in the first instance. To do so upsets the insti-

tutional equipoise between the work of this court and the

work of trial courts.

For those reasons—and the reasons that follow—I

respectfully specially concur, and I would review this case

as set forth below and remand for resentencing.

***

The relevant facts are undisputed. Defendant was

convicted of first-degree burglary (Count 7) and first-degree

aggravated theft (Count 9) for burglarizing a state-licensed

marijuana farm.1 Before sentencing, the state filed a sen-

tencing memorandum, attaching copies of defendant’s crimi-

nal records from Georgia case number SU-13-CR-147. Those

records showed that defendant had been convicted of the

following crimes in Georgia: (1) two counts of first-degree

1

As a result of that same burglary, defendant was also charged with first-

degree assault, ORS 163.185 (Count 1); first-degree robbery, ORS 164.415 (Counts

2 and 3); second-degree robbery, ORS 164.405 (Count 4); second-degree assault,

ORS 163.175 (Counts 5 and 6); and third-degree assault, ORS 163.165 (Count 8).

The jury acquitted defendant of Counts 1 to 6 and 8.

Cite as 309 Or App 516 (2021) 531

criminal damage to property, (2) one count of aggravated

assault, (3) one count of possession of a firearm during the

commission of a felony, and (4) one count of possession of a

firearm by a first offender probationer.2

In its sentencing memorandum, the state opined

that “Oregon does not have an exact corollary to Criminal

Damage in the First Degree,” but asserted that “the charge

corresponds to Unlawful Use of a Weapon,” and, in a foot-

note, briefly remarked that “[t]he charge also corresponds

to Recklessly Endangering Another Person.” The state

also asserted in its sentencing memorandum that “[defen-

dant’s] aggravated assault charge is equivalent to one or

more Oregon person felonies, including Assault in the First

Degree and/or Unlawful Use of a Weapon.” The state’s sen-

tencing memorandum did not mention Oregon’s crime of

menacing, nor did the state argue that defendant’s Georgia

convictions for possession of a firearm corresponded with

any Oregon offense.

Defendant also filed a sentencing memorandum,

arguing that the state had “failed to prove that any of the

Georgia convictions have any correlation to Oregon crimes.”

At the sentencing hearing, the state asserted that

defendant’s Georgia conviction for possession of a firearm

by a first offender probationer “is unlawful use of a weapon,”

noting that “[u]nder Oregon law, unlawful use of a weapon

is pretty much any carrying [of] a firearm. I don’t have the

statute directly in front of me, but I think it falls under

the elements of unlawful use of a weapon.” The state then

explained that its memorandum “had * * * just a brief foot-

note regarding * * * some of the charges and [the state]

said the charges also correspond to recklessly endangering

2

The state’s sentencing memorandum also enumerated defendant’s Georgia

convictions for two counts of possession of marijuana with intent to distribute,

one count of possession and use of drug-related objects, and one count of battery.

However, in its sentencing memorandum, the state did not contend that defen-

dant’s Georgia drug convictions correspond to any Oregon crimes, nor did the

state contend at sentencing that those crimes would affect defendant’s criminal

history category. Furthermore, the record does not show that the trial court’s

determination of defendant’s criminal history category involved defendant’s

Georgia drug convictions. Additionally, both parties acknowledge that defen-

dant’s Georgia battery conviction is not germane to our analysis. Consequently, I

would not address defendant’s Georgia battery or drug convictions.

532 State v. Shields

another person. And [the state] think[s] they would also cor-

respond to the charge of menacing.”

After hearing arguments, the sentencing court

explained its decision:

“To me, the * * * argument is kind of academic on * * *

whether it’s an 8A or an 8B under the sentencing guide-

lines grid, looking at all of those [Georgia] offenses that

were mentioned * * *.

“I believe that they do constitute at least person mis-

demeanors and that they would constitute either shooting

recklessly, endangering, or menacing.

“* * * * *

“I believe that there’s three person felonies for sure

there * * *. * * *

“So at this point, I’m going to sentence you as an 8A.”

On appeal, defendant argues that “defendant’s prior

Georgia offenses, correctly compared * * * to current Oregon

crimes, do not suffice to place defendant in criminal history

category A.” The state responds that “the court correctly cal-

culated defendant’s criminal history score because some of

the defendant’s Georgia convictions qualify as person felo-

nies or Class A person misdemeanors under Oregon law.”

We review a trial court’s classification of prior con-

victions for criminal history purposes for errors of law. ORS

138.105(7), (8)(c)(A); State v. Provencio, 153 Or App 90, 94,

955 P2d 774 (1998) (citing former ORS 138.222(4)(b) (1997),

repealed by Or Laws 2017, ch 529, § 26).

A prior out-of-state conviction may be counted

toward an offender’s criminal history category “if the ele-

ments of the offense would have constituted an offense under

Oregon law,” OAR 213-004-0011(3), which the state must

prove by a preponderance of the evidence, ORS 137.079(5)(c);

Torres, 182 Or App at 163, 165. That conviction-counting

scheme requires “close element matching.” State v. Carlton,

361 Or 29, 41, 388 P3d 1093 (2017) (referring to text of OAR

213-004-0011, among other examples, and observing that,

“when the legislature and the Criminal Justice Commission

Cite as 309 Or App 516 (2021) 533

intend to create a conviction-counting scheme that requires

close element matching, they use a variety of words,” such

as “the elements would constitute”). “[C]lose element match-

ing requires a[n out-of-state] offense to 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 P3d 485 (2019) (emphasis omitted) (quoting

Carlton, 361 Or at 43). The state may use an accusatory

instrument or judgment to “show the elements of defendant’s

[out-of-state] conviction,” Golden, 112 Or App at 306, but the

state may not use the defendant’s conduct underlying that

out-of-state conviction, see id. (“Had the drafters [of the sen-

tencing guidelines] intended conduct to be considered, they

could have drafted a rule that was not limited only to con-

sideration of the elements of an offense.”).3

In this case, I would conclude that the trial court

erred when it counted defendant’s Georgia convictions to

make its criminal history determination. The way that the

trial court made its criminal history determination was

opaque and does not reflect the close element-matching

required under OAR 213-004-0011. I cannot discern from

the record which Georgia convictions the trial court relied

on to make that determination, much less why it thought

that the elements closely matched the elements of any

Oregon offenses. Indeed, I highlight the fact that the state

3

The state cites State v. Yarbor, 133 Or App 360, 363-65, 891 P2d 703,

rev den, 321 Or 513 (1995), for the proposition that, if another state’s statute

“could be violated without necessarily violating the Oregon statute,” then “the

state must establish that a defendant’s out-of-state conviction does in fact match

the elements of the Oregon offense by reference to the facts alleged in the accu-

satory instrument and confirmed in the judgment.” In Yarbor we said, “We agree

with the state that comparing the factual elements of the offense alleged in the

indictment with Oregon statutes was not tantamount to relitigating the facts

underlying the conviction,” though we also noted that, “if it was error to consider

the factual elements, that error was harmless.” Id. at 364-65.

Our decision in Yarbor does not help the state, because—as I conclude in

this concurrence—the state did not demonstrate how defendant’s criminal

record shows that his Georgia convictions had elements that are the same as or

nearly the same as the elements of the Oregon crime to which it was compared.

Cf. Golden, 112 Or App at 306 (noting that, “to establish the elements of the

conviction, the state presented only a characterization in the PSI of the facts of

the Pennsylvania case” and then concluding that this “characterization could not

prove which of the multiple and alternative elements of the Pennsylvania statute

that defendant violated” (emphases added)).

534 State v. Shields

acknowledged at oral argument that “the [trial] court didn’t

really * * * elaborate or walk through the elements or any-

thing like that.”

To the extent that the trial court based its criminal

history determination on the evidence and arguments pre-

sented by the state, that evidence and argument also does not

indicate which Georgia convictions the trial court relied on

to make its determination or why the trial court thought the

elements closely matched the elements of an Oregon offense.

Although the state did produce records of defendant’s prior

Georgia convictions, it did not provide arguments—either in

its sentencing memorandum or at the sentencing hearing—

that articulated how those records show that the elements

of those Georgia convictions are the same as or nearly the

same as the elements of an Oregon crime.

In sum, given the trial court’s ruling and the evi-

dence and argument presented by the state, the close ele-

ment matching required by OAR 213-004-0011 was not

undertaken in the trial court. I would therefore conclude

that the trial court erred when it counted defendant’s

Georgia convictions to determine defendant’s criminal his-

tory category. Because defendant’s sentence for Count 7 was

based, in part, on that criminal history category, I would

reverse and remand for resentencing.

For the foregoing reason, I respectfully specially

concur.