State v. Cuevas ( 2015 )


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  • 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.