State v. Cid

No. 142 February 28, 2024 231

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

EMANUEL CID,

aka Emmanuel Cid,

Defendant-Appellant.

Washington County Circuit Court

18CR03884; A178968

Oscar Garcia, Judge.

Submitted January 24, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Laura A. Frikert, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appel-

lant. Emanual Cid filed the supplemental briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Greg Rios, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Affirmed.

232 State v. Cid

AOYAGI, P. J.

Defendant was convicted of a total of nine sex

crimes against two children. This is his second appeal, after

remand for resentencing. See State v. Cid, 315 Or App 273,

500 P3d 758 (2021). Defendant raises four assignments of

error and three supplemental pro se assignments of error.

In his first assignment of error and first and second supple-

mental pro se assignments of error, defendant argues that,

as to Counts 1 and 2 and Counts 5 through 9, the trial court

should have sentenced him under ORS 137.707, instead of

ORS 137.700, because he was a minor when he committed

those offenses. In his second, third, and fourth assignments

of error and third supplemental pro se assignment of error,

defendant argues that the trial court erred in failing to

merge the guilty findings on three pairs of charges. For the

following reasons, we affirm.

SENTENCING UNDER ORS 137.700

When defendant was 24 years old, he was charged

with sexual offenses against two child victims, some of which

occurred when defendant was 16 years old and some of which

occurred when defendant was 20 years old.1 Defendant

pleaded guilty or no contest to most of the charges, and the

remainder were dismissed. As a result, defendant was con-

victed of two counts of first-degree sodomy, ORS 163.405

(Counts 1 and 2); two counts of first-degree unlawful sex-

ual penetration, ORS 163.411 (Counts 5 and 6); two counts

of first-degree rape, ORS 163.375 (Counts 7 and 8); first-

degree sexual abuse, ORS 163.427 (Count 9); second-degree

rape, ORS 163.365 (Count 10); and second-degree sodomy,

ORS 163.395 (Count 11). All of those crimes are Measure

11 offenses.2 The conduct underlying Counts 1 and 2 and

Counts 5 to 9 occurred when defendant was 16 years old. The

1

The indictment alleged that defendant was “at least 18 years of age” at the

time of all of the charged offenses, but it is undisputed that defendant was actu-

ally 16 years old at the time of the offenses charged in Counts 1 through 9, and

that fact is reflected in the amended judgment. The parties agree that we should

rely on defendant’s actual age.

2

The offenses listed in ORS 137.700(2) and ORS 137.707(4) are commonly

described as Measure 11 offenses, based on the 1994 ballot measure that resulted

in the original enactment of ORS 137.700 to 137.707. State v. Acker, 175 Or App

145, 150 n 3, 27 P3d 1071 (2001), rev den, 333 Or 260 (2002).

Cite as 331 Or App 231 (2024) 233

conduct underlying Counts 10 and 11 occurred when defen-

dant was 20 years old. Counts 1 to 8 involved one victim,

and Counts 9 to 11 involved a different victim. Defendant

was sentenced under ORS 137.700 and received an aggre-

gate prison sentence of 138 months.

As to Counts 1 and 2 and Counts 5 through 9, defen-

dant contends that, because he was a minor when he commit-

ted those offenses, the trial court should have sentenced him

under ORS 137.707, rather than ORS 137.700. ORS 137.700

states the mandatory minimum sentences for Measure 11

offenses and allows no eligibility for sentence reduction for

any reason whatsoever. ORS 137.707 is the parallel statute

for juvenile offenders aged 15 years or older3 who are waived

into adult court. It states the same mandatory minimum

sentences for Measure 11 offenses, and similarly allows no

eligibility for sentence reduction—with one crucial excep-

tion, which is that offenders sentenced under ORS 137.707

are eligible for a second-look hearing and potential condi-

tional release under ORS 420A.203 and ORS 420A.206:

“(1) When a person waived under ORS 419C.349(1)(a)

is convicted of an offense listed in subsection (4) of this sec-

tion, the court shall impose at least the presumptive term

of imprisonment provided for the offense in subsection (4) of

this section. The court may impose a greater presumptive

term if otherwise permitted by law, but may not impose a

lesser term. The person is not, during the service of the

term of imprisonment, eligible for release on post-prison

supervision or any form of temporary leave from custody.

The person is not eligible for any reduction in the minimum

sentence for any reason under ORS 421.121 or any other

provision of law. The person is eligible for a hearing and

conditional release under ORS 420A.203 and 420A.206.”

ORS 137.707(1) (emphases added); see also generally ORS

420A.203 (listing all categories of persons eligible for second-

look hearings, including persons who were under 18 years of

age at the time of the offense and were sentenced to a term

of imprisonment of at least 24 months under ORS 137.707).

3

Children aged 14 years or younger are not subject to Measure 11 sentenc-

ing. ORS 137.709 (“ORS 137.700 and 137.707 do not apply to a person who is under

15 years of age at the time the person commits a crime listed in ORS 137.700 or

137.707.”).

234 State v. Cid

It is that exception that causes defendant to want to

be sentenced under ORS 137.707, instead of ORS 137.700. A

second-look hearing provides juvenile offenders the oppor-

tunity to serve a much shorter sentence if they demonstrate

that they are rehabilitated and otherwise meet the require-

ments for conditional release. See ORS 420A.203(1)(b) (pro-

viding for a second-look hearing when an eligible offender

has “served one-half of the sentence imposed or when a per-

son described in [ORS 420A.203(a)(B)] attains 24 years and

six months of age”); ORS 420A.203(4)(a)(B) (at the conclu-

sion of the second-look hearing, the court shall order condi-

tional release under ORS 420A.206 if the court finds that

the offender has been rehabilitated and reformed; is not a

safety threat to the victim, the victim’s family or the com-

munity; and will comply with the conditions of release); ORS

420A.206 (provisions regarding conditional release).

As a preliminary matter, we agree with the par-

ties that the trial court’s stated reason for not applying ORS

137.707 was incorrect. The court reasoned that ORS 137.707

did not apply to defendant based on the date that he commit-

ted the offenses. However, it is the original sentencing date

that controls, not the date of the offenses. Because defen-

dant was originally sentenced on February 12, 2020, the

second-look eligibility provision in ORS 137.707 would apply

to him, if ORS 137.707 itself applies to him. See Or Laws

2019, ch 634, § 32 (the SB 1008 amendments to ORS 137.707

apply “to sentences imposed on or after January 1, 2020”);

Or Laws 2019, ch 685, § 4 (the SB 1008 amendments to ORS

137.707 do not apply “to persons who were originally sen-

tenced before January 1, 2020, and who are subsequently

resentenced on or after January 1, 2020”).

We therefore next address whether ORS 137.707

applies to defendant, a purely legal issue that was argued

in the trial court and is properly before us as an alternative

basis to affirm. See Sherertz v. Brownstein Rask, 314 Or App

331, 341, 498 P3d 850 (2021), rev den, 369 Or 338 (2022) (dis-

cussing when and how alternative bases to affirm may be

considered on appeal). This appeal raises a question of statu-

tory construction, specifically whether a person who commits

a Measure 11 crime as a juvenile, reaches the age of majority,

Cite as 331 Or App 231 (2024) 235

and then is charged in adult court should, if convicted, be

sentenced as an adult under ORS 137.700 or as a juvenile

offender under ORS 137.707. Defendant argues that “[t]o

effectuate the clear legislative intent to focus on the rehabil-

itative potential of youth offenders, the second-look provision

of [ORS 137.707] should be interpreted to apply to all persons

who committed their offenses when they were a youth, regard-

less of when they are ultimately charged.” The state counters

that the statutory text forecloses that interpretation.

Because the disputed portion of ORS 137.707 was

enacted by the legislature,4 we examine the disputed pro-

vision’s text and context, as well as any helpful legislative

history of which we are aware, with the aim of ascertaining

the intent of the legislature. State v. Gaines, 346 Or 160, 171-

73, 206 P3d 1042 (2009). Text and context “must be given

primary weight in the analysis,” as only the text “receives

the consideration and approval of a majority of the members

of the legislature.” Id. at 171.

Here, the text is unequivocal. ORS 137.707(1) applies

only “[w]hen a person waived under ORS 419C.349(1)(a)”

is convicted of a Measure 11 offense. ORS 419C.349 is the

statute providing for waiver of youths into adult court. See

ORS 419C.349(2) (allowing the juvenile court to “waive the

youth to a circuit, justice or municipal court of competent

jurisdiction” if the stated requirements for waiver are met).

ORS 419C.349(1)(a), the specific provision cited in ORS

137.707(1), addresses youths alleged to have committed acts

that would qualify as Measure 11 offenses. It provides for a

4

In 2019, the legislature passed Senate Bill (SB) 1008, a comprehensive

juvenile reform bill that “made substantial changes to the prosecution and sen-

tencing of juvenile offenders.” Marteeny v. Brown, 321 Or App 250, 253, 517 P3d

343, rev den, 370 Or 303 (2022). Among other things, SB 1008 created a procedure

for juveniles aged 15, 16, or 17 years old who commit Measure 11 offenses to be

waived into adult court, whereas they were previously prosecuted in adult court

automatically, and expanded eligibility for second-look hearings to include juve-

niles waived into adult court on Measure 11 offenses. Compare Or Laws 2019,

ch 634, § 5 (creating the procedure now codified in ORS 419C.349(1)(a) for waiver

into adult court, applicable “in a case in which a petition has been filed alleging

that a youth has committed an act when the youth was 15, 16 or 17 years of

age,” and providing for eligibility for a second-look hearing for youths waived

into adult court, as now codified in ORS 137.707), with Or Laws 1995, ch 422,

§ 49 (requiring that when a person commits a Measure 11 crime and “is 15, 16,

or 17 years of age, at the time the offense is committed, * * * the person shall be

prosecuted as an adult in criminal court”).

236 State v. Cid

waiver hearing on the state’s request when “a petition has

been filed alleging that a youth has committed an act when

the youth was 15, 16 or 17 years of age that, if committed by

an adult, would constitute aggravated murder or an offense

listed in ORS 137.707[.]” ORS 419C.349(1)(a).

Defendant was not “waived under ORS 419C.349

(1)(a).” ORS 137.707(1). Defendant was 24 years old when he

was charged. Consequently, he was not a “youth” for whom a

delinquency “petition” was filed in juvenile court alleging acts

that “would” be crimes if committed by an adult. Rather, he

was an adult for whom an indictment was returned, resulting

in his being charged in circuit court with actual crimes. See

State v. Pike, 177 Or App 151, 153, 33 P3d 374 (2001), rev den,

333 Or 568 (2002) (“As a general rule, if a person is over 18

when he or she is charged with a criminal offense, that per-

son will be tried as an adult,” even if the person was under

the age of 18 when they committed the charged acts.). Indeed,

as defendant acknowledges, given his age when charged, even

if the state had filed a petition in juvenile court, the juvenile

court would have lacked jurisdiction. ORS 419C.005(1).5

If the legislature wanted the second-look eligibility

provision in ORS 137.707(1) to apply to anyone other than

youths waived into adult court on Measure 11 offenses,

then it presumably would have used broader language than

“waived under ORS 419C.349(1)(a)” when it added second-

look eligibility to ORS 137.707(1) in 2019. The text strongly

supports the state’s position that defendant was properly

sentenced under ORS 137.700, rather than ORS 137.707.

Nothing in the statutory context or legislative his-

tory of which we are aware sheds any additional light on

the construction of ORS 137.707 or persuades us that the

legislature affirmatively intended ORS 137.707(1) to apply

to adults who committed Measure 11 offenses as youths but

5

See ORS 419C.005(1) (“The juvenile court has exclusive original jurisdic-

tion in any case involving a person who is under 18 years of age and who has

committed an act that is a violation, or that if done by an adult would constitute

a violation, of a law or ordinance of the United States or a state, county or city.”);

ORS 419C.094 (“Except as otherwise provided in ORS 419C.103(3) and (4), the

jurisdiction of the juvenile court of the county in which a youth is taken into cus-

tody under ORS 419C.080 and 419C.088 shall attach from the time the youth is

taken into custody.”).

Cite as 331 Or App 231 (2024) 237

were not charged until reaching adulthood. In any event,

where the text of a statute “is truly capable of only one

meaning,” we must give “no weight * * * to legislative history

that suggests—or even confirms—that legislators intended

something different.” Gaines, 346 Or at 173. Legislative his-

tory may be used to confirm or illuminate the meaning of

plain text, or to demonstrate a latent ambiguity in seem-

ingly plain text, but not to contradict plain text. Id. at 172.

There are, of course, policy arguments to be made

for treating all juvenile offenders the same, regardless of

when the state initiates legal action. The circumstances of an

offense, delayed victim reporting, delayed police investiga-

tion, or prosecutorial charging decisions are all factors that

may lead to a juvenile offender not being charged until after

they reach adulthood, at which point they will automatically

be charged in adult court. It is not immediately obvious why

young adults charged in adult court for offenses commit-

ted as youths are treated differently from youths waived

into adult court based on their sophistication and maturity

and the other waiver factors described in ORS 419C.349(2).

However, such policy decisions are squarely in the province

of the legislature, not the courts. “In the construction of a

statute, the office of the judge is simply to ascertain and

declare what is, in terms or in substance, contained therein,

not to insert what has been omitted, or to omit what has

been inserted[.]” ORS 174.010. Defendant’s arguments are

better directed to the legislature in this instance.

In sum, we conclude that the trial court did not err

in sentencing defendant under ORS 137.700, instead of ORS

137.707. Although defendant committed the acts charged

in Counts 1 and 2 and Counts 5 through 9 when he was

16 years old, he was not charged until he was an adult.

Consequently, he went directly into adult court, rather than

being waived into adult court under ORS 419C.349(1)(a). It

follows that ORS 137.707(1) did not apply to him at sentenc-

ing, as it applies only to juvenile offenders who are “waived

under ORS 419C.349(1)(a).”6

6

Our text discussion has focused on defendant’s first assignment of error. In his

first and second pro se assignments of error, defendant argues that the trial court

violated Article I, section 16, of the Oregon Constitution and the Eighth Amendment

to the United States Constitution by “removing defendant (a 16-year-old-juvenile at

238 State v. Cid

MERGER

Defendant next contends that the trial court erred

in failing to merge its guilty findings on three pairs of

charges involving the same offense against the same victim.

Specifically, he argues that, after accepting his no-contest

plea, the court should have entered a single conviction for

first-degree sodomy based on Counts 1 and 2; a single con-

viction for first-degree unlawful sexual penetration based

on Counts 5 and 6; and a single conviction for first-degree

rape based on Counts 7 and 8. We review merger issues for

errors of law. State v. Moore, 319 Or App 136, 144, 510 P3d

907, rev den, 370 Or 303 (2022) (“We review the trial court’s

ruling on whether to merge the guilty verdicts for legal error

and are bound by the trial court’s factual findings if there is

constitutionally sufficient evidence in the record to support

them.”).

Under ORS 161.067(3), repeated violations of the

same statutory provision against the same victim are sepa-

rately punishable only if separated “by a sufficient pause in

the defendant’s criminal conduct to afford the defendant an

opportunity to renounce the criminal intent.” As the party

asserting that defendant’s conduct in each count was sepa-

rately punishable under ORS 161.067(3), it was the state’s

burden to prove that each violation constituted a separate

criminal episode, State v. Martin, 322 Or App 266, 268, 519

P3d 132, rev den, 370 Or 694 (2022) (“The state bears the

burden of proving by a preponderance of evidence that each

offense was a separate criminal episode.” (Internal quotation

marks omitted.)), or, if two violations occurred in the same

criminal episode, that they were separated by a sufficient

pause to avoid merger, State v. Barton, 304 Or App 481, 499,

468 P3d 510 (2020) (“The state, as the party asserting that

defendant’s conduct is separately punishable for purposes

of ORS 161.067(3), bears the burden of adducing legally suf-

ficient evidence of the requisite sufficient pause.” (Internal

quotation marks and ellipses omitted.)).

the time of the offense) from juvenile Court without conducting a waiver hearing

and sentencing under adult statutes (ORS 137.700).” Defendant’s constitutional

arguments rely on the inaccurate premise that he was “removed” to adult court, as

well as being unpreserved. We therefore reject those arguments.

Cite as 331 Or App 231 (2024) 239

Here, defendant was charged in Count 1 with com-

mitting first-degree sodomy “on or about January 3, 2010.”

He was charged in Count 2 with committing first-degree

sodomy “[a]s a separate act and transaction,” “on or about

January 3, 2010.” He was charged in Count 5 with commit-

ting first-degree unlawful sexual penetration “[a]s a sep-

arate act and transaction,” “on or about January 3, 2010.”

He was charged in Count 6 with committing first-degree

unlawful sexual penetration “[a]s a separate act and trans-

action,” “on or about January 3, 2010.” He was charged in

Count 7 with committing first-degree rape “[a]s a separate

act and transaction,” “on or about January 3, 2010.” He was

charged in Count 8 with committing first-degree rape “[a]s a

separate act and transaction” “on or about January 3, 2010.”

Defendant contends that the “separate act and

transaction” language in the indictment was insufficient to

establish a sufficient pause between violations of the same

statutory provision for purposes of the anti-merger statute.

The state maintains that the court properly entered sepa-

rate convictions on each count. We agree with the state.

The indictment alleged that defendant violated

three different statutory provisions in six “separate act[s]

and transaction[s].” Critically, in pleading no contest to

those charges without qualification, defendant assented to

the broadest construction of the charges and his pleas. State

v. Slagle, 297 Or App 392, 395-96, 441 P3d 644, rev den, 365

Or 557 (2019) (“Because defendant pleaded guilty without

qualifying his pleas, he assented to the broader construc-

tion [of the charging instrument].”); Hibbard v. Board of

Parole, 144 Or App 82, 88, 925 P2d 910 (1996), vac’d on other

grounds, 327 Or 594, 965 P2d 1022 (1998) (by pleading no

contest without qualification, the petitioner “assented to the

broadest construction of his pleas”).

The principle of the “broadest construction” has been

applied in various scenarios. For example, when a defendant

pleads guilty or no contest to multiple crimes, each of which

is alleged to have occurred during the same “on or between”

date range, or within overlapping date ranges, the court

may treat each crime as having been committed on a dif-

ferent date for purposes of the anti-merger statute. State v.

240 State v. Cid

White, 280 Or App 170, 171-72, 380 P3d 1205 (2016), rev den,

360 Or 752 (2017) (holding that merger was not required

where the defendant pleaded guilty to five counts of identity

theft, which were alleged to have occurred “within an over-

lapping range of dates,” because “the sentencing court could

find for purposes of merger that the incidents of identity

theft comprising the five counts occurred on dates separate

from each other and, therefore, that each count was sepa-

rated by a sufficient pause”); State v. Ostrom, 257 Or App

520, 521, 306 P3d 788 (2013) (similar); Hibbard, 144 Or App

at 88 (similar).

Slagle provides another example of the principle’s

application. There, the defendant pleaded guilty to 10 counts

of first-degree encouraging child sexual abuse. 297 Or App

at 393-94. In each count, he was charged with possessing

a “visual recording of sexually explicit conduct involving a

child.” Id. at 393 (internal quotation marks omitted). The

defendant argued that merger was required because the

charging instrument did not specify whether each count

involved the same child or a different child. Id. at 395.

We rejected that argument, stating, “Because defendant

pleaded guilty without qualifying his pleas, he assented to

the broader construction that he possessed 10 visual record-

ings of different children.” Id. at 396. It followed that “the

trial court could enter 10 separate convictions” under the

anti-merger statute. Id.; see ORS 161.067(2) (providing for

separate convictions when violations of the same statutory

provision involve different victims).

In this case, we agree with the state that, under

the broadest construction of the indictment and defendant’s

plea, the trial court did not err in entering six separate con-

victions on Counts 1, 2, 5, 6, 7, and 8. For present purposes,

we need not resolve the parties’ disagreement as to whether

“on or about January 3, 2010” should be treated as a date

range akin to those in Hibbard, Ostrom, and White, such

that it would be proper to treat the violations as occurring

on separate dates on that basis alone. Rather, in this case,

it is the “separate act and transaction” language that is dis-

positive. Although two separate “acts” may or may not be

separated by a sufficient pause to avoid merger, the broader

Cite as 331 Or App 231 (2024) 241

construction of the indictment language is that they were

so separated. Moreover, a separate “transaction” may be

broadly construed to refer to a separate criminal episode

altogether. By entering an unqualified no-contest plea,

defendant assented to the broader construction of the “sepa-

rate act and transaction” language in the indictment.

Therefore, the trial court did not err in declining to

merge, respectively, the guilty findings on Counts 1 and 2,

Counts 5 and 6, and Counts 7 and 8.

Affirmed.