Oregon v. Ice and the Apprendi Rule

This case, decided by the Oregon Supreme Court, which sits about 1 1/2 miles from my home, has to do with the extent or reach of the Apprendi doctrine. The eponymous case, Apprendi v. NJ, 530 US 466 (2000), was a criminal law sentencing case, whose primary holding was that "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. The issue in the Ice case boils down to how broadly or narrowly to read that statement. So, let's get to the basic facts and sentencing in this case, and the fog will lift, I hope.

Relevant Facts

On two occasions (maddeningly, neither the Oregon Supreme Court nor the Petition for Certiorari gives the dates of the two burglaries), defendant entered into a home where the 11 year-old victim, her mother and her younger brother lived, and fondled the girl's breasts and vagina. From these two actions, six criminal counts were presented to the grand jury, three from each episode. Each episode consisted of a burglary and two counts of sexual abuse (touching breasts, touching vagina). The trial jury found defendant guilty on all six counts.

Now the difficulty began. How do you sentence a guy who has done these things? Is it two separate incidents or one? And, should the various "touching" episodes lead to consecutive or merely concurrent sentences? The trial court decided that instead of just serving one sentence for the crime (how many years would that have been or what was the range? No one tells us), the trial court judge found that Oregon law allows three consecutive sentences in a case like this. The first one results from two separate criminal episodes, and the second and third result from breaking of multiple statutes in the sexual abuse episodes. Since the issue in this case has to do with whether the OR sentencing law ought to be swept up under the "reach" of Apprendi, it might be good to quote the OR state statutes which allow a judge to impose concurrent or consecutive sentences in a criminal case.

The Oregon Statute

ORS (Oregon Revised Statutes, to you "out-of-staters") 137.123 (1) provides that a sentence imposed by a court "shall be a concurrent term unless the judgment expressly provides for consecutive sentences." Thus, the "default rule" as lawyers like to say, is that sentences for multiple crimes in the same episode are "concurrent." However, they can be consecutive under a few scenarios:

"If a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct...the court may impose a sentence concurrent with or consecutive to the other sentence or sentences," ORS 137.123 (2).

The state judge determined in this case that Ice's offenses, because they took place on different days, did not "arise from the same continuous and uninterrupted course of conduct." Thus, consecutive sentence.

Then, as we continue with the statute, we recognize other times in which the court may impose a consecutive sentence.

"(4) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (5) of this section," ORS 137.123 (4).

Well, Mr. Ice's actions did not arise from a continuous or uninterrupted course of conduct--at least the separate burglaries didn't. But how about the actions once he got into the house--the touching of breasts and vagina? The State had argued that these acts were a continuous act, and thus, if the conditions of (5) were fulfilled, a consecutive sentence could be imposed on Mr. Ice for these things, too.

"5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or

(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

In fact, the State argued, and the court found, that both of these circumstances applied; thus the number of consecutive sentences to be served by Mr. Ice rose from one to three. He faces about 30 years in prison.

Now, the Issue

The issue ought to be clear now to all who have followed thus far. Did the judge, under Apprendi, have authority to make these consecutive sentence determinations, or was that an area which only was in the province of the jury? The majority of the Court (five votes), held that this was the jury's prerogative, while the two younger Justices, or Justices with the more "modern" and "urbane" education, argued that Apprendi was a narrow holding and would in no way reach to the issue of consecutive vs. concurrent sentences. Justice Kistler, in dissent, stated the issue most succinctly. In Apprendi and Blakely (a 2004 case refining Apprendi):

"a trial court had enhanced a defendant's sentence for a single offense beyond the statutory maximum authorized for that offense based on a fact that the court had found during sentencing by a preponderance of the evidence.” Justice Kistler determined that nothing in this Court's cases “answer[s] the separate question of how a trial court should aggregate multiple sentences when a jury has found a defendant guilty of multiple offenses.” Justice Kistler stressed that this Court's broad references to punishment had to be read in context, while considering both the issues before the Court and the precise terms of this Court's holding."

Conclusion

The case before the Court, then, is whether Apprendi reaches even to issues such as determining consecutive vs. concurrent sentences. What fascinates me about the OR case, from the perspective of OR law, is that Oregon has a long tradition of distrusting judges and honoring juries. Thus, it isn't surprising to me that the "old guard" of Oregon law on the Supreme Court, led by Justice Gillette, found that a jury had to make the decisions made here by the judge. But, even more surprising, is that under the Oregon Constitution, which Justice Gillette loves to interpret more broadly and more protectively than the US Constitution, he had to admit that there was no help for Mr. Ice. Thus, the Oregon Supreme Court was in the interesting and unusual position of running to the federal constitution for more protection. The dissenting Justices (Kistler and Balmer) would have nothing of this; they just construed Apprendi more narrowly. I think their colleagues in Washington DC will concur.

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