State v. Cuevas

No. 43 November 13, 2015 147

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

SANTOS CUEVAS,

Respondent on Review.

(CC 09082394C; CA A149668; SC S062464)

En Banc

On review from the Court of Appeals.*

Argued and submitted February 3, 2015.

Doug M. Petrina, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

With him on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Jesse Wm. Barton, Salem, argued the cause and filed the

brief for respondent on review.

Kyle Krohn, Deputy Public Defender, Salem, filed the

brief for amicus curiae Office of Public Defense Services.

With him on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

KISTLER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Walters, J., dissented and filed an opinion, in which

Landau and Brewer, JJ., joined.

______________

*  Appeal from Malheur County Circuit Court, J. Burdette Pratt, Judge. 263

Or App 94, 326 P3d 1242 (2014).

148 State v. Cuevas

Case Summary: Defendant was convicted of multiple counts of sex abuse,

sodomy, and rape, and the trial court determined that all of defendant’s convic-

tions arose out of separate criminal episodes. For that reason, the trial court

relied on each of defendant’s convictions in calculating the criminal history score

for subsequent convictions sentenced in the same proceeding, exercised its dis-

cretion to impose defendant’s sentences consecutively, and declined to apply the

sentencing guidelines limitation on aggregate consecutive sentences. The Court

of Appeals held that the trial court should have submitted the factual determina-

tion of whether defendant’s convictions arose out of the same or separate criminal

episodes to the jury, but held that the error was harmless. Held: (1) The Court

declined to revisit its prior decisions in Miller and Bucholz and adhered to the

interpretations of the sentencing guidelines formulated in those cases; (2) when

a defendant’s convictions arose out of the same criminal episode, the sentencing

guidelines rule limiting the length of an aggregate sentence serves only to limit a

defendant’s sentence, and thus federal law did not require that the factual deter-

mination whether the convictions arose out of the same or separate criminal epi-

sodes be submitted to the jury; and (3) the sentencing guidelines rule that directs

a trial court to count each prior conviction in determining a defendant’s criminal

history unless that conviction and the conviction being sentenced arose out of the

same criminal episode limits the length of a defendant’s sentence, and thus fed-

eral law does not require that the factual determination whether a prior convic-

tion arose out of the same or separate criminal episodes be submitted to the jury.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

Cite as 358 Or 147 (2015) 149

KISTLER, J.

This case involves two sentencing guidelines rules.

One rule directs trial courts to count a defendant’s convic-

tions at the time of sentencing in calculating the defendant’s

criminal history. OAR 213-004-0006(2). The other rule lim-

its the length of a consecutive sentence that a trial court

can impose. OAR 213-012-0020(2). On appeal, the Court

of Appeals concluded that both rules increased defendant’s

sentence based on facts that, under Apprendi v. New Jersey,

530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), a jury

must find beyond a reasonable doubt. State v. Cuevas, 263

Or App 94, 114, 326 P3d 1242 (2014). Although the Court

of Appeals concluded that the trial court should have sub-

mitted those facts to the jury, it held that the failure to do

so was harmless error. Id. On review, we hold that the two

sentencing guidelines rules do not implicate Apprendi and

affirm the Court of Appeals decision on that ground.

A jury convicted defendant of 10 counts of rape, sod-

omy, and sexual abuse.1 When a jury finds a defendant guilty

of multiple offenses, a trial court must make two related but

separate sentencing decisions. One decision involves the

length of the sentence for each conviction. The other involves

whether the convictions should run concurrently or consec-

utively. Oregon has adopted statutes and sentencing guide-

lines rules to assist trial courts in making those decisions.

For most felony convictions, Oregon’s sentencing

guidelines prescribe a presumptive sentence based on the

seriousness of the offense and the defendant’s criminal his-

tory.2 See State v. Speedis, 350 Or 424, 427, 256 P3d 1061

(2011) (describing the sentencing guidelines). The guidelines

also instruct trial courts on how to calculate a defendant’s

criminal history. As discussed below, the guidelines pro-

vide that, when a court sentences a defendant for multiple

1

The jury found that the offenses involved two different children and

occurred at three separate locations. After the jury returned its verdict, the state

conceded that two convictions merged into two other convictions, leaving eight

convictions for sentencing.

2

Although the sentencing guidelines do not apply to all criminal convictions,

the state conceded at trial that the guidelines apply to the convictions in this

case.

150 State v. Cuevas

convictions in a single sentencing proceeding, the sentence

imposed on the first conviction counts as part of the defen-

dant’s criminal history in determining the sentence for the

second conviction unless the convictions arose out of a single

criminal episode. OAR 213-004-0006(2); State v. Bucholz,

317 Or 309, 314-15, 855 P2d 1100 (1993) (interpreting an

earlier version of that rule).

Once a trial court has determined the sentence

for each individual conviction, the remaining question

is whether the sentences for those convictions should be

imposed consecutively or concurrently. Under ORS 137.123,

multiple convictions will be sentenced concurrently unless

the trial court finds (1) that the offenses that gave rise to

those convictions did not occur as part of the same course

of conduct or (2) even if the offenses occurred as part of the

same course of conduct, one offense was not incidental to the

other or the two offenses resulted in separate harms. If the

court makes one of those findings, it may impose consecu-

tive sentences.

That is not the end of the analysis, however. If a trial

court decides to sentence convictions consecutively, the sen-

tencing guidelines limit the length of the aggregate consecu-

tive sentence that the trial court may impose if the convictions

that resulted in the aggregate consecutive sentence arose

out of a single criminal episode. OAR 213-012-0020(2)(a);

State v. Miller, 317 Or 297, 306, 855 P2d 1093 (1993) (inter-

preting an earlier version of that rule). As discussed in

greater detail below, if the convictions that the court sen-

tenced consecutively arose out of a single criminal episode,

the sentencing guidelines limit the length of the aggregate

consecutive sentence by assigning the lowest possible crim-

inal history score (and thus the lowest sentencing range) to

each sentence that is imposed consecutively. OAR 213-012-

0020(2)(a).

In this case, the trial court merged two of defen-

dant’s 10 convictions into two other convictions.3 The court

then imposed a presumptive sentence on each of defendant’s

3

Based on the state’s concession, the trial court merged count 8 (first-degree

sexual abuse) into count 4 (second-degree sodomy) and count 6 (first-degree sex-

ual abuse) into count 2 (first-degree sodomy).

Cite as 358 Or 147 (2015) 151

remaining eight convictions based on the seriousness of

each offense and defendant’s criminal history.4 After the

trial court determined the sentence on defendant’s first con-

viction, it counted that conviction as part of his criminal

history in determining the presumptive sentence for defen-

dant’s second conviction. Including the first conviction as

part of defendant’s criminal history increased his crimi-

nal history score and, for that reason, resulted in a higher

presumptive sentence for the second conviction. The court

followed the same course in determining the presumptive

sentences for the remainder of defendant’s convictions.5

The court found that each of defendant’s eight con-

victions arose out of a separate criminal episode. Given that

finding, the court exercised its discretion to sentence each

of those convictions consecutively. ORS 137.123. Finally, the

trial court found that the limits that the sentencing guide-

lines place on the length of the aggregate consecutive sen-

tence did not apply because the convictions did not arise out

of a single criminal episode.

Throughout this litigation, defendant has argued

that the trial court did not apply the two sentencing guide-

lines rules consistently with the federal constitution. The

Court of Appeals agreed with defendant. Specifically, it

agreed that each rule increased defendant’s sentence on the

basis of a factual issue—whether defendant’s convictions

arose out of the same or separate criminal episodes. See

Cuevas, 263 Or App at 113-15. It also agreed that defendant

had a right under the Sixth and Fourteenth Amendments to

have the jury decide that fact before the trial court applied

4

The guidelines permit a trial court to impose an upward or a downward

departure from the presumptive sentencing range if the trial court finds “sub-

stantial and compelling reasons” for doing so. See State v. Dilts, 336 Or 158,

161-62, 82 P3d 593 (2003) (describing sentencing guideline rules), vac’d and

rem’d on other grounds, Dilts v. Oregon, 542 US 934, 124 S Ct 2906, 159 L Ed 2d

809 (2004). In this case, the trial court did not impose a departure sentence on

any of defendant’s convictions.

5

By the time that the trial court imposed sentences on four of defendant’s

convictions, defendant’s criminal history score had topped out, and each addi-

tional conviction did not increase defendant’s score. However, the sentences for

defendant’s fifth, sixth, seventh, and eighth convictions were all higher than they

would have been if his first, second, and third convictions had not been included

in his criminal history score.

152 State v. Cuevas

those two sentencing rules to calculate defendant’s sentence.

Id. The Court of Appeals held, however, that the trial court’s

failure to submit that factual issue to the jury was harmless

because the only conclusion that a reasonable juror could

have reached on this record was that defendant’s eight con-

victions arose out of separate criminal episodes. Id.

The state petitioned for review, even though the

Court of Appeals had affirmed the trial court’s judgment on

harmless error grounds. The state argued that the Court of

Appeals had misconstrued both the sentencing guidelines

rules and Apprendi. The state contended that the Court of

Appeals’ ruling, if left uncorrected, would result in unneces-

sary jury determinations in similar cases in the future. We

allowed the state’s petition for review to consider whether

the Court of Appeals erred in applying Apprendi to the two

sentencing guidelines rules. See State v. Snyder, 337 Or 410,

97 P3d 1181 (2004) (allowing review in a similar procedural

posture).

On review, defendant argues initially that we should

overrule this court’s decisions in Miller and Bucholz. He con-

tends that this court erred in limiting the sentencing guide-

lines rules at issue in those cases (and this one) to instances

in which a defendant’s convictions arose out of the same

criminal episode. In defendant’s view, each of those rules

applies without regard to whether the convictions arose

out of the same or separate criminal episodes. Defendant

argues alternatively that, even if we do not overrule Miller

and Bucholz, the question whether his convictions arose

out of separate criminal episodes was a necessary factual

predicate to increasing his sentence under both sentencing

guideline rules. It follows, he contends, that he has a federal

constitutional right under Apprendi to require that a jury

find that fact beyond a reasonable doubt.

We begin with defendant’s argument that Miller

and Bucholz should be overruled. If we were to agree with

defendant on that issue, we would not need to reach the fed-

eral constitutional issues that he pressed below and that the

Court of Appeals decided. As we read this court’s decisions

in Miller and Bucholz, they start from a proposition that the

court identified in Miller. The court explained that, when

Cite as 358 Or 147 (2015) 153

the Criminal Justice Sentencing Commission drafted the

sentencing guidelines rules, “only single-episode criminal

acts could have been joined in one indictment or criminal

case” and sentenced in a single judicial proceeding. Miller,

317 Or at 303. The court noted that the sentencing guide-

lines rules were consistent with that assumption. Id. at

304-05. That is, they limited the length of consecutive

sentences imposed in a single judicial proceeding on the

assumption that the offenses being sentenced in that pro-

ceeding arose out of a single criminal episode. Id. However,

the sentencing guidelines did not place that limit on sen-

tences imposed in separate proceedings, which would have

arisen out of separate criminal episodes. Id.

In 1989, the legislature changed the statutes to

permit offenses that arose out of separate criminal epi-

sodes to be joined in the same indictment. See id. at 303;

Or Laws 1989, ch 842, § 1. As a result of that statutory

change, offenses sentenced in a single criminal proceeding

could arise out of separate criminal episodes. The court gave

effect to that statutory change by interpreting the sentenc-

ing guidelines rule that limits the aggregate length of con-

secutive sentences to apply only to offenses arising out of a

single criminal episode. Miller, 317 Or at 306. The court rea-

soned that, if it interpreted the rule otherwise, the length of

a defendant’s consecutive sentence could be manipulated by

charging two offenses arising out of a single criminal epi-

sode in separate proceedings. Id.6

That same context informed the court’s decision

in Bucholz. The court noted in Bucholz that the sentencing

guidelines rule governing a defendant’s criminal history

originally provided that the only convictions that would

count as part of an offender’s criminal history were those

convictions that existed at the time the current crime was

6

The court noted that “the [1989] legislature considered and adopted the lib-

eral joinder bill * * * and the sentencing guidelines bill * * * in the same legislative

session and through hearings in the same committee.” Miller, 317 Or at 305. The

court also noted two conflicting views on whether the joinder bill would affect the

sentencing guidelines bill and appears to have given greater weight to the view

that “if a change in current charging law is adopted, that change could have an

effect on calculation of the criminal history score.” Id. at 305 n 2 (summarizing

Kathleen Bogan’s testimony before the committee).

154 State v. Cuevas

committed. 317 Or at 312. The legislature changed that

rule to provide that an offender’s criminal history would

be based on the offender’s convictions “at the time the cur-

rent crime or crimes of conviction is sentenced.” Id. (quot-

ing text of rule). As discussed in greater detail below, after

considering the legislative history of that change, the court

explained in Bucholz that, when a trial court sentences

multiple convictions in a single hearing, each conviction

that is sentenced counts towards a defendant’s criminal his-

tory unless the convictions arose out of the same criminal

episode.

In interpreting the sentencing guidelines rules in

Miller and Bucholz, this court considered many of the same

arguments that defendant raises here. Since this court

decided Miller and Bucholz more than 20 years ago, they

have become an integral part of the fabric of Oregon sen-

tencing laws. During that time, neither the legislature nor

the Oregon Criminal Justice Commission has amended the

sentencing guidelines rules to restore what defendant con-

tends was the true meaning of those rules. Rather, the sen-

tencing guidelines rules that this court interpreted in Miller

and Bucholz have been applied repeatedly in calculating

innumerable sentences.

Those considerations counsel against disturbing

the decisions in Miller and Bucholz, even if we might have

interpreted the rules at issue in those cases differently.

See Farmers Ins. Co. v. Mowry, 350 Or 686, 700, 261 P3d 1

(2011) (reaching a similar conclusion where the issues had

been fully litigated and transactions had been structured

based on this court’s prior interpretation). We accordingly

decline defendant’s invitation to overrule Miller and Bucholz

and conclude that any changes to those sentencing guide-

lines rules should be left to the legislature and the Criminal

Justice Commission. We accordingly turn to defendant’s

argument that the two sentencing guidelines rules, as inter-

preted in Miller and Bucholz, depend on facts that, under

Apprendi, must be found by a jury beyond a reasonable

doubt. We begin by restating the applicable federal constitu-

tional principles and then discuss the two sentencing guide-

line rules.

Cite as 358 Or 147 (2015) 155

I.  APPLICABLE FEDERAL PRINCIPLES

In 2000, the United States Supreme Court held:

“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”

Apprendi, 530 US at 490. Four years later, the Court

explained in Blakely v. Washington, 542 US 296, 124 S Ct

2531, 159 L Ed 2d 403 (2004), “that the ‘statutory maxi-

mum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant.” Id. at 303

(emphasis omitted). Finally, the Court explained in Oregon

v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009),

that the rule in Apprendi provides a means for determin-

ing the elements of an individual offense that a jury must

decide beyond a reasonable doubt. It does not extend to a

trial court’s decision to impose individual sentences consec-

utively, even though that decision increases a defendant’s

aggregate sentence based on facts that a jury has not found.

II.  CONSECUTIVE SENTENCING

OAR 213-012-0020(2)(a) limits the length of an

aggregate consecutive sentence if the convictions that com-

prise the sentence arose out of the same criminal episode.

OAR 213-012-0020(2); Miller, 317 Or at 306.7 The rule

7

OAR 213-012-0020 provides, in part:

“(1) When the sentencing judge imposes multiple sentences consecu-

tively, the consecutive sentences shall consist of an incarceration term and a

supervision term.

“(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.”

The indictment alleged that defendant committed the charged offenses

between January 1, 1995 and 2002. During that period, the applicable sentenc-

ing rule was renumbered and amended in respects that are not relevant to the

issues that defendant raises on review. This opinion cites the current version of

the administrative rule.

156 State v. Cuevas

divides the offenses that comprise a consecutive sentence

into two parts: the primary offense and additional offenses.

OAR 213-012-0020(2)(a). It provides that the aggregate con-

secutive sentence cannot exceed the sum of the presump-

tive sentence for the primary offense (which is based on the

seriousness of the crime and the offender’s actual criminal

history) and the presumptive sentences for each additional

offense (which is based on the seriousness of each additional

offense and an assumed criminal history). Id. In determin-

ing the presumptive sentence for each additional offense,

the rule assumes that the offender has no criminal history

and assigns the lowest criminal history score possible to

that offense. Id. Doing so limits a defendant’s aggregate

consecutive sentence by imposing the lowest presumptive

sentencing range possible for each additional offense that is

sentenced consecutively.8

As we understand defendant’s federal constitutional

argument, it runs as follows. The question whether OAR

213-012-0020(2)(a) limits a defendant’s aggregate consecu-

tive sentence turns on whether the convictions that make

up the sentence arose out of the same or separate crimi-

nal episodes. In defendant’s view, the rule presumes that

a trial court will impose a limited sentence (one in which

all additional consecutive sentences are based on the lowest

criminal history score possible), and it permits a trial court

to impose a greater consecutive sentence only if a defen-

dant’s convictions arose out of separate criminal episodes.

Defendant reasons that the question whether his convic-

tions arose out of the same or separate criminal episodes is

a factual issue that the jury did not decide in finding him

guilty of the charged offenses. It follows, he contends, that

he has a federal constitutional right under Apprendi to have

the jury find that factual predicate before the trial court can

impose an increased consecutive sentence.

8

The sentencing guidelines limit the length of a consecutive sentence

another way. See OAR 213-012-0020(2)(b). In addition to the limitation discussed

above, subsection (b) provides alternatively that a consecutive sentence cannot be

greater than twice the length of the presumptive sentence, except as provided in

OAR 213-008-0007. Id. That alternative limit also applies only if the convictions

that gave rise to the consecutive sentence arose from the same criminal episode.

Miller, 317 Or at 305. Because defendant does not argue that the alternative limit

in OAR 213-012-0020(2)(b) results in a shorter consecutive sentence than the

limit in OAR 213-012-0020(2)(a), we do not discuss subsection (b) further.

Cite as 358 Or 147 (2015) 157

We agree with defendant that the question whether

his convictions arose out of the same or separate criminal

episodes is a factual issue. We also agree that the jury did

not decide that factual issue in finding that he was guilty of

the charged offenses. Put differently, on the record in this

case, we cannot say that that factual issue comes within the

“prior conviction” exception that Apprendi recognized. See

530 US at 490 (explaining that “[o]ther than the fact of a

prior conviction” a jury must find facts that increase a defen-

dant’s sentence above the statutory maximum).9

We conclude, however, that defendant’s federal con-

stitutional argument fails for two reasons. First, as a matter

of state law, the factual finding on which defendant’s argu-

ment turns did not increase his sentence. Rather, it provided

a basis for reducing his sentence, and Apprendi does not

require that the jury find facts that reduce the length of a

defendant’s sentence. Second, even if defendant were correct

that the rule directs a trial court to begin with a limited

aggregate consecutive sentence and increase that sentence

only if the convictions arose out of separate criminal epi-

sodes, the Court’s decision in Ice makes clear that the rule,

as defendant interprets it, does not violate the principle

announced in Apprendi.

In considering the first reason, we begin with the

premise of defendant’s argument—that, as a matter of state

law, OAR 213-012-0020(2)(a) directs courts to begin with

a limited consecutive sentence and increase that sentence

only if the convictions that comprise the sentence arose out

of separate criminal episodes. The terms of the rule do not

address that issue. However, the sequence in which OAR

213-012-0020(2) comes into play in sentencing demonstrates

that it serves to limit a consecutive sentence rather than to

increase it.

9

Read in light of the instructions, the jury’s verdict identified the victim

of each offense and the place where each offense occurred. It is not possible,

however, to tell from the verdict, read in light of the instructions, whether all

defendant’s convictions arose out of separate criminal episodes. Accordingly, the

state cannot rely on the prior conviction exception to Apprendi to establish that

fact. See Shepherd v. United States, 544 US 13, 25, 125 S Ct 1254, 161 L Ed 2d

205 (2005) (plurality) (discussing the limits of the prior conviction exception to

Apprendi).

158 State v. Cuevas

OAR 213-012-0020(2) applies only if a trial court

first decides to impose individual sentences consecutively.

Those individual sentences, run consecutively, add up to

an aggregate consecutive sentence, and the only function

that OAR 213-012-0020(2) serves is to limit the length of

the aggregate sentence that the trial court otherwise would

impose. Put differently, if the aggregate consecutive sen-

tence that the trial court otherwise would impose is shorter

than the limited consecutive sentence produced by the rule,

the rule is inapplicable. Given its relationship to the other

sentencing decisions that a trial court must make in impos-

ing sentences consecutively, we conclude, as a matter of

state law, that OAR 213-012-0020(2) serves only to limit the

length of the aggregate consecutive sentence that the trial

court otherwise would impose.

Apprendi applies only to factual findings that

increase the length of a sentence beyond the prescribed

statutory maximum. That decision does not apply to factual

findings that limit or reduce the length of a sentence. That

much follows from the Court’s formulation of the rule in

Apprendi, which has not varied since the Court first stated

it 15 years ago. The Court held in Apprendi:

“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”

530 US at 490 (emphasis added); accord Alleyne v. United

States, ___ US ___, 133 S Ct 2151, 186 L Ed 2d 314 (2013)

(holding that factual findings that increase mandatory min-

imum sentences are subject to Apprendi).

Ice confirmed that Apprendi applies only to factual

findings that increase a defendant’s sentence. Before hold-

ing that Apprendi does not apply to consecutive sentencing

decisions, the Court noted that, “[i]n some States, sentences

for multiple offenses are presumed to run consecutively, but

sentencing judges may order concurrent sentences upon

finding cause therefore.” 555 US at 163-64. The Court then

observed that it was “undisputed” that states may take that

approach “without transgressing the Sixth Amendment.” Id.

at 164. That is, the Court recognized that a factual finding

Cite as 358 Or 147 (2015) 159

that reduces the length of a consecutive sentence does not

implicate Apprendi. In this case, OAR 213-012-0020(2)(a)

limits the length of the aggregate consecutive sentence that

the trial court otherwise would impose. It follows that the

factual finding that triggers the application of that rule (and

that results in reducing the length of the aggregate consecu-

tive sentence) is not subject to Apprendi.

Defendant’s argument that Apprendi applies to OAR

213-012-0020(2)(a) is incorrect for a second, independent

reason. By its terms, the holding in Apprendi did not extend

to the question of how a trial court should aggregate multi-

ple sentences. Rather, the holding in Apprendi addressed the

procedures that a trial court must follow when “the penalty

for a crime [exceeds] the prescribed statutory maximum” for

that crime. 530 US at 490. That is, Apprendi answered the

question what are the elements of a single offense that the

state must prove to a jury beyond a reasonable doubt. It did

not answer the separate question of how a trial court should

aggregate multiple sentences when a jury has found a defen-

dant guilty of multiple offenses.

As the Court has explained, the rule in Apprendi

arose in response to “a new trend in the legislative regulation

of sentencing” that the Court first recognized in McMillan

v. Pennsylvania, 477 US 79, 106 S Ct 2411, 91 L Ed 2d 67

(1986), when it “considered the significance of facts selected

by legislatures that * * * increased the range of sentences

possible for the underlying crime.” Booker v. United States,

543 US 220, 236, 125 S Ct 738, 160 L Ed 2d 621 (2005). That

is, the Court adopted the rule in Apprendi to address deter-

minate sentencing schemes that defined the maximum sen-

tence for an offense but permitted a trial court to enhance

the sentence for that offense if the trial court found certain

“sentencing factors” by a preponderance of the evidence.

The rule in Apprendi provides a means for deter-

mining whether those “sentencing factors” are elements of

a single offense that the state has to prove to a jury beyond

a reasonable doubt. The rule does not have a broader reach.

Indeed, the Court was careful to explain in Booker that the

rule it announced in Apprendi was not intended to displace

traditional sentencing practices. As the Court explained,

160 State v. Cuevas

“it is the new circumstances [first recognized in McMillan],

not a tradition or practice that the new circumstances have

superseded, that have led [the Court] to the answer first

considered in Jones [v. United States, 526 US 227, 119 S Ct

1215, 143 L Ed 2d 311 (1999),] and developed in Apprendi

and subsequent cases culminating with this one.” Booker,

543 US at 237.

Following Apprendi and Booker, the Court confirmed

Apprendi’s limited reach in Ice. As the Court explained in

Ice, “[a]ll of [its prior] decisions involved sentencing for a

discrete crime, not—as here—for multiple offenses differ-

ent in character or committed at different times.” 555 US at

167. Accordingly, the question posed by Ice was not whether

Apprendi, by its own terms, applied to the decision to impose

consecutive sentences. As Apprendi made clear and as Ice

confirmed, it did not. Rather, the question was whether

Apprendi should be extended to the decision whether to

impose consecutive sentences. Id. at 168. Considering both

“historical practice and respect for state sovereignty,” the

Court declined to extend Apprendi beyond “the imposition of

sentences for discrete crimes” to factual findings that served

as the predicate for imposing sentences consecutively. Id.

That is, Ice declined to extend Apprendi to factual findings

that were the predicate for imposing an increased aggregate

sentence. Id.

After reviewing the historical record, the Court

explained in Ice that “legislative reforms regarding the

imposition of multiple sentences do not implicate the core

concerns that prompted our decision in Apprendi.” Id. at

169. It follows that, even if the question whether defendant’s

offenses arose out of separate criminal episodes were the

factual predicate for imposing a greater aggregate consec-

utive sentence, as it was in Ice, that factual determination

is not subject to Apprendi.10 Defendant errs in arguing

otherwise.

10

It is true that the rule also assigns a sentence to each offense that is sen-

tenced consecutively. However, the rule assigns the presumptive sentence that

applies to the primary offense and the lowest possible presumptive sentence

(based on the lowest possible criminal history score) for each additional offense.

Assigning those presumptive sentences follows directly from the jury’s verdict

and does not offend Apprendi.

Cite as 358 Or 147 (2015) 161

III.  CRIMINAL HISTORY

The rule for determining a defendant’s criminal his-

tory score presents a different issue. Relying on Bucholz, the

state argues that OAR 213-004-0006(2) applies as follows:

When a trial court sentences multiple convictions in a single

proceeding, OAR 213-004-0006(2) directs the court to count

each prior conviction in determining a defendant’s criminal

history unless that conviction and the conviction being sen-

tenced arose out of the same criminal episode. It follows, the

state contends, that a finding that the two convictions arose

out of the same criminal episode reduces the number of con-

victions in a defendant’s criminal history and thus reduces

the defendant’s presumptive sentence. For that reason, the

state argues, the rule does not implicate Apprendi.

Defendant and Oregon Public Defense Services

(OPDS), appearing as amicus, interpret the rule differently.11

They note that the state has the burden of proving a defen-

dant’s prior criminal history. It follows, they contend, that

the state must prove that a defendant’s convictions arose out

of separate criminal episodes before it may use one convic-

tion to increase a defendant’s criminal history score. In ana-

lyzing the parties’ arguments, we begin with the text of the

rule. We then discuss the Court of Appeals’ and this court’s

interpretation of that rule in Bucholz. We explain why we

conclude, as a matter of state law, that the state has the bet-

ter interpretation of the rule. Finally, we address defendant

and the amicus’s burden-of-proof argument.

OAR 213-004-0006 provides, in part:

“(1)  The Criminal History Scale includes nine mutu-

ally exclusive categories used to classify an offender’s

criminal history according to the extent and nature of the

offender’s criminal history at the time the current crime or

crimes of conviction is [sic] sentenced. * * *

“(2)  An offender’s criminal history is based upon the

number of adult felony and Class A misdemeanor convic-

tions and juvenile adjudications in the offender’s criminal

history at the time the current crime or crimes of conviction

11

The court invited OPDS to file an amicus brief, and we appreciate the

thoughtful brief that OPDS filed.

162 State v. Cuevas

are sentenced. For crimes committed on or after November 1,

1989 a conviction is considered to have occurred upon the

pronouncement of sentence in open court.”12

According to that rule, the criminal history scale “classif[ies]

an offender’s criminal history according to the extent and

nature of the offender’s criminal history at the time the cur-

rent crime or crimes of conviction is [sic] sentenced.” OAR

213-004-0006(1).

That text can be interpreted in one of two ways.

In measuring a defendant’s criminal history “at the time

the current crime or crimes of conviction [are] sentenced,”

the rule could include, as part of a defendant’s criminal

history, only those convictions that preceded the hearing

at which a defendant’s “current crime or crimes” are sen-

tenced. Alternatively, when a trial court imposes multiple

sentences in a single proceeding, the rule could include in a

defendant’s criminal history each conviction that had been

sentenced “at the time the current crime * * * is sentenced.”

The latter interpretation is consistent with the sentence in

subsection (2) that provides that, for crimes committed on

or after November 1, 1989, “a conviction is considered to

have occurred upon the pronouncement of sentence in open

court”—a proposition that would be largely unnecessary if

the only convictions that counted were offenses that had

been sentenced in a prior judicial proceeding.13

Initially, the Court of Appeals and this court divided

over how an earlier version of the rule should be interpreted.

In interpreting that version of that rule, the Court of Appeals

held that only convictions sentenced in a prior sentencing

12

As noted, the indictment alleged that defendant committed the charged

offenses between January 1, 1995, and 2002, and the jury’s verdict does not

reflect when it found that the charged offenses occurred. We quote the current

version of OAR 213-004-0006, which became effective March 8, 1996. Defendant

does not argue that any difference between the current and former versions is

material.

13

The version of the rule at issue in Bucholz did not contain a sentence stat-

ing that a conviction “is considered to have occurred on pronouncement of sen-

tence in open court,” as it does now. See 317 Or at 312. However, that sentence

was part of the commentary to the rule, as supplemented, when the court issued

its decision in Bucholz, and it became part of the rule itself in 1993 before defen-

dant committed the acts charged in this case. See State v. Allen, 151 Or App 281,

289, 948 P2d 745 (1997) (discussing history of the rule).

Cite as 358 Or 147 (2015) 163

proceeding could be included in a defendant’s criminal his-

tory score. State v. Seals, 113 Or App 700, 704, 833 P2d 1344

(1992); State v. Bucholz, 113 Or App 705, 707, 834 P2d 456

(1992). That was true, under the Court of Appeals decisions

in Seals and Bucholz, regardless of whether the offenses being

sentenced arose out of the same or separate criminal epi-

sodes. See Seals, 113 Or App at 702 (same criminal episode);

Bucholz, 113 Or App at 707 (separate criminal episodes).

This court allowed review in Bucholz and reversed

the Court of Appeals decision. Bucholz, 317 Or at 321. This

court explained that the text of the rule “permits consider-

ation of any previous conviction occurring before ‘the time

the current crime * * * is sentenced.’ ” Id. at 314 (quoting the

text of the rule; ellipsis in original). The court concluded

that, read literally, the text of the rule contemplated that a

trial court sentencing multiple convictions in a single pro-

ceeding would include the first conviction that it sentenced

in calculating a defendant’s criminal history score to deter-

mine the presumptive sentence for the second conviction. Id.

Although the defendant in Bucholz argued that the

legislative history of the rule and its commentary supported

the Court of Appeals’ interpretation, this court reached a

different conclusion. Id. at 315-16.14 It noted that the defen-

dant relied in large part on the legislative history of a bill

that had failed to pass. Id. at 316. The court explained that,

even if it were appropriate to consider that legislative his-

tory, the most that could be drawn from it was that “[t]he

legislators present distinguished between a single criminal

episode, which they thought was not prior criminal history

for use in sentencing on some other conviction from the same

episode, and crimes from more than one episode.” Id. at 317.

The court read the commentary to the rule the same way.

Id. at 318. It explained that “the wording of the commen-

tary [discussing limitations on using convictions sentenced

in the same sentencing proceeding] makes the most sense if

it is taken to be addressing only multiple convictions from a

single criminal episode.” Id.

14

Because the legislature had amended OAR 213-004-0006(2), legisla-

tive history existed for the rule in addition to the commentary written by the

Criminal Justice Commission.

164 State v. Cuevas

This court accordingly held that, when a court

sentences a defendant for multiple convictions in a single

proceeding, each conviction on which the court imposes a

sentence counts as part of the defendant’s criminal history

in determining the presumptive sentence for the next con-

viction. The court held out the possibility, as it had recog-

nized in Miller, that the rule would not apply if the offenses

being sentenced arose out of a single criminal episode. See

Bucholz, 317 Or at 317-18 (discussing legislative history).

However, the court did not decide that question because no

one disputed that the offenses in Bucholz arose out of sepa-

rate criminal episodes. See Miller, 317 Or at 300 (describing

Bucholz as “a case involving two separate indictments for

two separate series of criminal acts”).

In State v. Plourd, 125 Or App 238, 864 P2d 1367

(1993), the Court of Appeals concluded from the discussion

of the legislative history in Bucholz that a prior conviction

should not be counted as part of a defendant’s criminal

history when that conviction and the conviction being sen-

tenced arose out of the same criminal episode. This court

later confirmed Plourd’s holding. See State v. Martin, 320 Or

448, 450, 452, 887 P2d 782 (1994) (explaining that, because

two offenses sentenced in a single criminal proceeding had

not arisen out of a single criminal episode, the trial court

properly had counted the first offense as part of the defen-

dant’s criminal history in sentencing the second offense).

Bucholz did not decide the question that the parties

raise here; that is, Bucholz did not decide whether the depar-

ture from the text of the rule for convictions arising out of

the same criminal episode was a prerequisite to counting

a prior conviction as part of a defendant’s criminal history

or an exception from doing so. Faced with that question, we

conclude that the latter interpretation of the rule is the bet-

ter one. As noted, the rule provides: “An offender’s criminal

history is based upon the number of adult felony and Class A

misdemeanor convictions and juvenile adjudications in the

offender’s criminal history at the time the current crime or

crimes of conviction are sentenced.” OAR 213-004-0006(2).

By its terms, the rule directs courts to base an offender’s

criminal history on the number of convictions at the time

of sentencing, and it provides that, for crimes committed

Cite as 358 Or 147 (2015) 165

after November 1, 1989, “a conviction is considered to have

occurred upon pronouncement of sentence in open court.”

Nothing in the text of that rule recognizes an excep-

tion for convictions arising out of the same criminal episode.

That departure from the text of the rule derives from the

rule’s context and legislative history, which this court dis-

cussed in Miller and Bucholz. Given the textual directive

and the departure from that directive, we conclude that the

departure is best understood as an exception to the textual

requirement that every previously sentenced conviction

count in determining a defendant’s criminal history. See

ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117,

133, 241 P3d 710 (2010) (relying on the unqualified text of a

coverage provision as one reason for holding that a judicially

imposed limitation should be viewed as an exclusion from

coverage).

Defendant and the amicus advance primarily one

contrary argument. Relying on ORS 137.079(5)(c) and

OAR 213-004-0013(2) and (3), they note that the state has

the burden of proving a defendant’s criminal history. They

infer from that fact that the state must prove that a prior

conviction arose out a separate criminal episode from the

conviction currently being sentenced before the prior con-

viction can be counted as part of a defendant’s criminal

history. In our view, defendant and the amicus place more

weight on that statutory allocation of proof than it reason-

ably can bear. Before addressing defendant’s argument, it

is helpful to set out what the statute and its accompanying

rule say.

ORS 137.077 provides for a presentencing report to

assist trial courts in determining the appropriate sentence.

Among other things, a presentence report must contain “[a]

listing of all prior adult felony and Class A misdemeanor

convictions and all prior juvenile adjudications.” OAR 213-

013-0010(2).15 ORS 137.079(5) provides that “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

15

ORS 137.077 does not specify what a presentence report must contain.

That information is found in the applicable rules.

166 State v. Cuevas

history,” unless the defendant notifies the district attorney

before sentencing “of any error in the criminal history as

set forth in the presentence report.” ORS 137.079(5)(b), (c).

If the defendant notifies the state of a perceived error, then

the state has the burden of proving “any disputed part of the

defendant’s criminal history.” ORS 137.079(5)(c).16

Simply as a matter of the text of ORS 137.079(5),

it is difficult to see how that statute supports defendant’s

argument. ORS 137.079(5) places the burden on the state

to prove the existence vel non of the convictions that are

set forth in the presentence report. By its terms, the stat-

ute does not place a burden on the state to prove the cir-

cumstances surrounding those convictions. Yet, that is what

defendant’s argument presupposes. His argument assumes

that the state bears the burden of proving whether the prior

conviction arose out of separate criminal episodes when

the fact that the statute says the state must prove is more

limited.

However, even if ORS 137.079(5) placed the bur-

den on the state to prove the circumstances surrounding a

prior conviction, the statute still provides greater support

for the state’s interpretation of OAR 213-004-0006(2) than

defendant’s. ORS 137.079(5) provides that a defendant’s

criminal history set out in the presentencing report satisfies

the state’s burden of proof unless the defendant notifies the

state otherwise. Put in the context of this rule, that statute

provides that, unless a defendant notifies the state that he

or she believes that the conviction being sentenced arose out

of the same criminal episode as a previously sentenced con-

viction, then the trial court may count the previously sen-

tenced conviction as part of the defendant’s criminal history.

If a defendant so notifies the state, then the state has the

burden of proving that the conviction is not excluded from

being counted by virtue of arising out of the same crimi-

nal episode. ORS 137.079(5), if applicable, is consistent with

the interpretation of OAR 213-004-0006(2) that the state

advances.

16

The rule is the same as the statute, with one exception. Instead of referring

to a presentence report, the rule refers to a “summary of the offender’s criminal

history prepared for the court by the state.” OAR 213-004-0013(2), (3).

Cite as 358 Or 147 (2015) 167

Ultimately, the difficulty with defendant’s argu-

ment is that it conflates two separate issues. The question of

which party bears the burden of proof is separate from the

question of what that party must prove, as this court recog-

nized in ZRZ Realty. See 349 Or at 136-38. One of the issues

in ZRZ was who bears the burden of proof when the parties

in a declaratory judgment action are transposed. For exam-

ple, when the party that ordinarily would be the defendant

in a breach of contract claim brings a declaratory judgment

action to determine its rights under the contract, the courts

have divided over which party in the declaratory judgment

action bears the burden of proof. See 349 Or at 136-37. Some

courts hold that the plaintiff in the declaratory judgment

action has the burden to prove its affirmative allegations,

even though the plaintiff in the declaratory judgment action

ordinarily would be the defendant in a breach of contract

claim and would have no burden of proof. See id. (discussing

cases); First National Bank v. Malady, 242 Or 353, 358, 408

P2d 724 (1966) (holding that that rule ordinarily applies in

Oregon).17 Other courts hold that the party that ordinarily

would have the burden of proof retains that burden, even

though that party is now the defendant in the declaratory

judgment action. See ZRZ Realty, 349 Or at 136-37 (discuss-

ing cases).

As those different approaches illustrate, the ques-

tion of how the burden of proof is allocated is separate from

the question of what the party with the burden of proof must

establish. That is, the burden of proof is a substantively

neutral rule that sheds little light on the terms of the legal

rule that the party with the burden of proof must prove or

disprove. In this case, the sentencing guidelines rule pro-

vides that each prior conviction will be counted as part of a

defendant’s criminal history subject to an exception for con-

victions that arose out of the same criminal episode. That

exception remains an exception regardless of which party

has the burden of proving or disproving it. The statutory

allocation of the burden of proof in ORS 137.079(5) does not

17

Oregon followed this rule in Malady, 242 Or at 358, although the court

noted in ZRZ that courts since Malady have considered additional factors in

deciding how to allocate the burden of proof. ZRZ Realty, 349 Or at 137 n 18.

168 State v. Cuevas

persuade us to read the criminal history sentencing rule

differently than we have.

Given our interpretation of OAR 213-004-0006(2),

we conclude that that rule does not implicate Apprendi. As

a matter of state law, a finding that a previously sentenced

conviction and the conviction currently being sentenced

arose out of a single criminal episode does not increase a

defendant’s criminal history. Rather, it is a factual finding

that reduces a defendant’s criminal history and the result-

ing sentence by not counting a conviction that otherwise

would be included in the defendant’s criminal history. As

explained above, Apprendi does not apply to factual findings

that reduce a defendant’s sentence.

We accordingly hold that trial courts may apply

OAR 213-012-0020(2) and OAR 213-004-0006(2) without

a jury determination that multiple offenses sentenced in a

single judicial proceeding arose out of separate criminal epi-

sodes, even when that fact is not apparent from the jury’s

verdict. We affirm the Court of Appeals decision and the

trial court’s judgment on that ground.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

WALTERS, J., dissenting.

I respectfully dissent. As the majority acknowl-

edges, this case requires this court to interpret the rule for

determining a defendant’s criminal history score, OAR 213-

004-0006(2). I would interpret that rule to permit a sen-

tencing court to include, as part of a defendant’s criminal

history, only those convictions that preceded the hearing

at which a defendant’s “current crime or crimes” are sen-

tenced. I would reverse defendant’s sentence and remand to

the trial court for resentencing.

The majority interprets OAR 213-004-0006(2) as

providing a “textual directive” that a sentencing court must

base an offender’s criminal history score on the number of

convictions that exist at the time each crime is sentenced.

358 Or at 165. The majority then recognizes a “departure”

from that rule when the offenses being sentenced arise out

of a single criminal episode. Id. The majority finds the basis

Cite as 358 Or 147 (2015) 169

for that departure not in the rule itself or in a case decided

by this court, but in the fact that the Court of Appeals recog-

nized such a “departure” in State v. Plourd, 125 Or App 238,

864 P2d 1367 (1993). The majority then decides, as a matter

of first impression, that that departure constitutes an excep-

tion to the textual requirement rather than a prerequisite

to its application. 358 Or at 164. It follows, the majority

concludes, that the rule does not implicate Apprendi v. New

Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).

I would start, as the majority does, with the text of

the rule, which provides:

“An offender’s criminal history is based upon the num-

ber of adult felony and Class A misdemeanor convictions

and juvenile adjudications in the offender’s criminal his-

tory at the time the current crime or crimes of conviction

are sentenced.”

OAR 213-004-0006(2). In cases where a defendant is sen-

tenced for multiple crimes of conviction, that rule raises an

interpretative question—namely, whether the phrase “at

the time the current * * * crimes of conviction are sentenced”

refers to the current sentencing proceeding itself or, instead,

refers to individual sentences handed down for individual

offenses during the same sentencing proceeding.

That question is answered by the rule’s reference to

the plural “crimes of conviction,” id. (emphasis added), which

the majority fails to address. The rule directs courts to base

an offender’s criminal history on the number of convictions

at the time that “the current crime or crimes of conviction

are sentenced.” OAR 213-004-0006(2). When a court is sen-

tencing an offender for multiple crimes (plural), the rule

directs the court to count only criminal history that existed

prior to the time that the crimes (plural) are sentenced. In

other words, the “current * * * crimes of conviction” are not

“sentenced,” id., until each current crime of conviction has

been sentenced.

That understanding accords with the rule’s com-

mentary and legislative history as recounted in State v.

Seals, 113 Or App 700, 833 P2d 1344 (1992). In Seals, the

court laid out the commentary for former OAR 253-04-

006(2) (1993), renumbered as OAR 213-004-0006(2) (1996),

170 State v. Cuevas

and then explained that it accurately reflected the legisla-

ture’s intent. Id. at 702-04. The commentary, as quoted by

the court, provides:

“ ‘This section also makes clear that a criminal history,

for purposes of sentencing under these rules, is determined

as of the time of sentencing. This provision ensures that

the severity of the sentence is commensurate with offend-

er’s characteristics at the time he or she is sentenced.

“ ‘The Guidelines Board had originally adopted a rule

which would only count prior convictions entered at the

time the current crime of conviction was committed. This

rule was intended to ensure that court proceedings not be

manipulated by either the offender or the state to alter

the offender’s criminal history classification. The legis-

lature, however, directed the Guidelines Board to amend

this rule to provide that the offender’s criminal history is

to include all prior convictions or juvenile adjudications

entered against the offender “at the time the current crime

or crimes of conviction is sentenced.” Section 98, Chapter

790, Oregon Laws 1989.’

“ ‘This reference to “current crime or crimes of conviction”

was intended to prohibit the consideration of convictions

arising from the current proceeding in classification of the

offender’s criminal history. This prohibition applies even if

the state can establish the chronological order in which the

offenses were committed.’

“ ‘In short, the legislative intent was to capture as accu-

rately as possible the offender’s criminal record at the time

of sentencing without encouraging the manipulation of

court proceedings as a means to affect the offender’s crim-

inal history classification.’ Oregon Sentencing Guidelines

Implementation Manual 50 (1989).”

Id. at 702-03 (emphasis in Seals). The legislature’s intent, as

described by the court, is consistent:

“Although the commentary is not authoritative, here

it accurately reflects the legislative intent. The language

of OAR 253-04-006(2) was adopted from an amendment

offered by Representative Clark. The discussion was

directed to the impact of the rule on projected prison pop-

ulations. Criminal Justice Council staff member Ashford

explained the effect of the proposed change in OAR

253-04-006(2):

Cite as 358 Or 147 (2015) 171

“ ‘By counting criminal history from date of sen-

tencing, offenders who are being sentenced for multiple

offenses could have counted in their criminal history

the multiple offenses—the current multiple offenses,

because they have been theoretically convicted of them

and that’s what’s driving those numbers up. If the

intention of the committee is only to count as prior con-

victions, convictions unrelated to the current, then the

impact figures would be very low.’

“The concern was to clarify that the amendment was

not intended to result in increased prison population. The

legislators agreed with the explanation provided by Circuit

Court Judge Ellis, an associate member of the Criminal

Justice Council, who testified:

“ ‘The defendant who’s before you for sentencing on

four different felonies at the same time—three of those

are not to me prior convictions. They’re present convic-

tions. So you wouldn’t count [them] as part of prior crim-

inal history, no matter what rule you use for figuring

prior criminal history.’ ”

Id. at 703-04 (emphasis in Seals) (footnotes omitted).

Based on that understanding of the commentary

and legislative history, the Court of Appeals concluded that

former OAR 253-04-006(2) (1993), renumbered as OAR 213-

004-0006(2) (1996), comported “with the principle under-

lying the guidelines to punish offenders within the limits

of correctional resources,” and held that the only criminal

history a sentencing court could count was the criminal his-

tory in place before the current crime or crimes of conviction

were sentenced. Id. at 704.

The Court of Appeals reached the same conclusion

in State v. Bucholz, 113 Or App 705, 707, 834 P2d 456 (1992),

but the Supreme Court reversed, State v. Bucholz, 317 Or

309, 321, 855 P2d 1100 (1993). The Supreme Court read the

text of the rule to permit a court that is sentencing multiple

convictions in the same proceeding to include the first con-

viction that it sentences in calculating a defendant’s crimi-

nal history score for the second conviction. Id. The Supreme

Court discounted the commentary and legislative history

described above by characterizing both as “distinguish[ing]

between a single criminal episode, which they thought was

172 State v. Cuevas

not prior criminal history for use in sentencing on some

other conviction from the same episode, and crimes from

more than one episode.” Id. at 317.

This court was wrong in Bucholz. Its characteri-

zation of the commentary and legislative history does not

fairly represent those sources, which spoke directly to the

issue presented in that case. Further, the court ignored the

rule’s reference to “crimes” (plural) of conviction. This case

requires that we reconsider Bucholz and correct that error.

Instead of doing so, however, the majority rein-

terprets OAR 213-004-0006(2) and relies primarily on

a sentence that was added to the rule after the Supreme

Court decided Bucholz: “For crimes committed on or after

November 1, 1989 a conviction is considered to have occurred

upon the pronouncement of sentence in open court.” OAR

213-004-0006(2). The majority apparently concludes that

that sentence makes the Supreme Court’s interpretation in

Bucholz correct. I disagree and, again, I can do no better

than quote the Court of Appeals’ reasoning—this time on

the effect of that amendment:

“The state argues that the additional language taken

from the commentary, stating that a conviction occurs upon

the pronouncement of the sentence in open court, renders

the Seals, Bucholz, Miller and Plourd decisions ‘irrelevant.’

According to the state, the ‘plain language’ of the rule

requires courts to consider any prior conviction to be part

of an offender’s criminal history.

“The difficulties with the state’s argument are twofold.

First, it fails to explain, beyond the mere assertion of the

fact, why the ‘plain language’ requires the result it asserts.

Merely because a conviction occurs at the time sentencing

is pronounced in open court does not mean that it must

become, at that moment, part of the offender’s criminal his-

tory. The state’s construction, in fact, cannot be reconciled

with the language in the rule that defines ‘criminal history’

in terms of the record of convictions ‘at the time the current

crime or crimes of conviction are sentenced.’ If, upon sen-

tencing, each crime becomes part of the criminal history,

as the state suggests, then the reference in the rule to prior

convictions at the time of the crimes of conviction becomes

mere surplusage. We are instructed not to give a construc-

tion to enactments that renders portions of it meaningless,

Cite as 358 Or 147 (2015) 173

if possible. See ORS 174.010 (instructing courts ‘not to omit

what has been inserted’ when construing statutes).

“The state’s plain language argument is especially dif-

ficult to accept in the light of the fact that the amendment

regarding the timing of a ‘conviction’ within the meaning of

the rule merely incorporated into the text of the rule what

previously had been expressed in the commentary. In other

words, the rule now expressly states what it always has

been understood to mean. In that regard, it bears emphasis

that the commentary from which the 1993 amendment was

taken explained both that the ‘current crime or crimes of

conviction’ cannot be considered part of an offender’s crimi-

nal history and that convictions occur upon pronouncement

of sentence in open court.

“Second, and perhaps more importantly, the legislature

left materially unchanged the language in the rule refer-

ring to ‘criminal history at the time of the current crime

or crimes are sentenced.’ That language, as we have noted,

was intended to exclude consideration of crimes committed

in the same criminal episode for which a defendant cur-

rently is being sentenced.”

State v. Allen, 151 Or App 281, 290-91, 948 P2d 745 (1997)

(emphases in original) (footnotes omitted).

I agree. When a trial court is sentencing a defen-

dant for multiple crimes, OAR 213-004-0006(2) does not

provide a “textual directive” to trial courts to count crimes

that are sentenced in the current sentencing proceeding as

part of a defendant’s criminal history. It does the opposite:

It directs trial courts to count only those convictions that

preceded the hearing at which a defendant’s “current crime

or crimes” are sentenced.

And even if the majority’s interpretation of the rule

were correct, the majority would not be correct to recognize

a “departure” from that rule based on the “departure” recog-

nized by the Court of Appeals in Plourd. If trial courts are

permitted to depart from the “unqualified” directive that

the majority identifies, it is the rule that must permit that

departure. Plourd drew on the Supreme Court’s “discussion

in Bucholz” for its conclusion that the defendant in that case

was “correct that his convictions, which arose within one

general criminal transaction, could not be used to enhance

174 State v. Cuevas

his criminal history score.” 125 Or App at 242 (internal quo-

tation marks omitted). In this case, the majority describes

the “discussion” in Bucholz as doing no more than holding

out the “possibility * * * that the rule might not apply if the

offenses being sentenced arose out of a single criminal epi-

sode.” 358 Or at 164.

I do not see how we can determine whether a

“departure” that we have not ourselves recognized consti-

tutes a prerequisite to counting a prior conviction as part of

a defendant’s criminal history or an exception from doing so

before we decide whether to recognize that “departure.” And

to decide whether to recognize such a departure takes us

back to the text of the rule and its commentary and legisla-

tive history. In conducting that analysis, I would adopt the

reasoning of the Court of Appeals in Seals and Allen.

I do not understand why the majority, feeling com-

pelled to dip, does not plunge. If, as it appears, the majority

is not willing to stand on Bucholz for its interpretation of

OAR 213-004-0006(2), and is willing to reconsider its text,

then the majority should give that text its full due and also

consider its commentary and legislative history. If it were to

do so, I believe that this court would decide, as did the Court

of Appeals, that a sentencing court may count as a part of

a defendant’s criminal history only those convictions that

preceded the hearing at which a defendant’s “current crime

or crimes” are sentenced.

I also disagree with the majority’s further reasoning

that the “departure” recognized in Plourd is best understood

as an exception to the textual requirement that it identifies,

and that such an exception mitigates the defendant’s sen-

tence and does not implicate Apprendi.

As to the first point, even if OAR 213-004-0006(2)

is intended to permit a court to count convictions sentenced

in a current proceeding in calculating a defendant’s crimi-

nal history, the rule should not be understood as creating

(1) a general rule that all prior convictions be counted and

(2) an exception to that rule for prior convictions arising out

of the same criminal episode. Instead, the rule is best under-

stood as presenting the trial court with one binary question

Cite as 358 Or 147 (2015) 175

of fact: whether the prior conviction arose from a separate

criminal episode or from the same criminal episode.

As the majority acknowledges, the court reasoned

in Bucholz that “ ‘[t]he legislators present distinguished

between a single criminal episode, which they thought was

not prior criminal history for use in sentencing on some

other conviction from the same criminal episode, and crimes

from more than one criminal episode.’ ” 358 Or at 163 (quot-

ing Bucholz, 317 Or at 317) (emphasis added). Thus, even if

the rule is intended to permit the calculation that the major-

ity says it does, the rule is intended to calculate the crimi-

nal history score by distinguishing between the same crim-

inal episode and separate criminal episodes. A “separate

criminal episode” finding makes the criminal history rule

applicable, and a “same criminal episode” finding makes the

criminal history rule inapplicable. As a result, the rule sets

up a decision tree with a “distinction,” and not a general rule

with a “departure.”

The trial court’s finding in this case was consis-

tent with that structure. The trial court did not recognize

a general rule and then find an exception. Instead, the trial

court made a finding that permitted it to count defendant’s

convictions in calculating his criminal history—that defen-

dant’s convictions were for offenses that arose out of sep-

arate criminal episodes. Had the trial court instead found

that defendant’s convictions were for offenses that arose out

of the same criminal episode, the trial court would not have

been permitted to count defendant’s previously sentenced

convictions in calculating his criminal history.

Second, I doubt that the applicability of Apprendi

depends on the fine line between whether the rule creates

a decision tree with a distinction or a general rule with a

“departure.” The difference may be recognized in constru-

ing insurance policies, as the majority notes, but I would

not give it constitutional significance, particularly when the

legislative history does not demonstrate that the legislature

was aware of it.

Rather, I would focus, as the Court did in Apprendi,

on whether the defendant received a sentence beyond the

176 State v. Cuevas

prescribed statutory maximum for the offense. Apprendi,

530 US at 490. Under Apprendi, the prescribed statutory

maximum is the maximum sentence that the trial court can

impose based on only the facts alleged in the indictment and

either reflected in the jury verdict or admitted by the defen-

dant. Id. (facts that increase the penalty beyond “statutory

maximum” must be found by jury and proven beyond a rea-

sonable doubt); see also Blakely v. Washington, 542 US 296,

303, 125 S Ct 2531, 159 L Ed 2d 403 (2004) (“[T]he ‘statutory

maximum’ for Apprendi purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant.” (Emphasis

omitted.)); State v. Dilts, 337 Or 645, 652, 103 P3d 95 (2004)

(“statutory maximum” is the presumptive sentence based on

facts alleged in indictment and admitted by defendant in

his guilty plea). A defendant’s criminal history is generally

not alleged in an indictment and therefore is generally not

admitted by the defendant in a guilty plea or reflected in

a jury verdict. Thus, as the Court recognized in Apprendi,

a defendant’s criminal history is a fact that “increases the

penalty for a crime beyond the prescribed statutory maxi-

mum.” Apprendi, 530 US at 490.

Nevertheless, in Apprendi, the Court recognized

what it characterized as a “narrow exception” to its rule

that facts that increase a defendant’s sentence beyond the

“statutory maximum” must be found by a jury. Id. (emphasis

added). The Court explained that, in keeping with its prior

decision in Almendarez-Torres v. United States, 523 US 224,

118 S Ct 1219, 140 L Ed 2d 350 (1998), a jury need not deter-

mine any “fact of prior conviction” in determining the length

of a defendant’s sentence. Apprendi, 530 US at 488 (internal

quotation marks omitted). The Court reasoned that the pro-

cedural safeguards attached to a fact of prior conviction, and

the fact that the defendant did not challenge the accuracy of

that fact, “mitigated the due process and Sixth Amendment

concerns otherwise implicated in allowing a judge to deter-

mine a ‘fact’ increasing punishment beyond the maximum of

the statutory range.” Id. (emphasis added). Not only did the

Court in Apprendi discuss a defendant’s prior conviction as a

fact that increases a defendant’s punishment beyond the stat-

utory maximum, but there would be no need for an exception

Cite as 358 Or 147 (2015) 177

to the Apprendi rule if a defendant’s criminal history could

be considered to be mitigating rather than enhancing.

My Apprendi analysis may be mistaken, and there

may be reasons that I have not discussed that make Apprendi

inapplicable here. I need not dwell on those federal issues for

purpose of this dissent, however. I write not to speak defin-

itively about federal law, but because, in reaching the fed-

eral issues presented in this case, the majority is required to

construe state law. In my view, the majority’s interpretation

of state law is flawed. I respectfully dissent.

Landau, J., and Brewer, J., join in this dissenting

opinion.