State v. Sangrolla ( 2023 )

352 December 6, 2023 No. 633
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHREE KRISHNA SANGROLLA,
Defendant-Appellant.
Multnomah County Circuit Court
16CR37625; A177852
Benjamin N. Souede, Judge.
Submitted October 27, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Cite as 329 Or App 352 (2023) 353
TOOKEY, P. J.
After remand from this court for resentencing,
defendant appeals a judgment of conviction for two counts of
first-degree sexual abuse, ORS 163.427, raising two assign-
ments of error.
In his first assignment of error, defendant contends
that we must reverse and remand for resentencing, because
the sentencing court’s resentencing on remand was vindic-
tive in violation of defendant’s right to due process. For the
reasons that follow, we reject defendant’s first assignment of
error on the merits. In his second assignment of error, defen-
dant contends that the sentencing court erred in imposing
restitution outside of his presence. We reject defendant’s sec-
ond assignment of error as moot.1
Consequently, we affirm.
BACKGROUND
The material facts are both procedural and undis-
puted. As relevant to the issues on appeal, this case con-
cerns three counts related to defendant’s alleged conduct
against a single victim: two counts of first-degree sexual
abuse (Counts 3 and 7) and one count of first-degree rape
(Count 5).2 After a jury trial, the jury returned a nonunan-
imous guilty verdict on Count 5 and unanimous guilty ver-
dicts on Counts 3 and 7.
1
The sentencing court stated during defendant’s resentencing hearing that
it did not intend to impose restitution; however, it included a restitution award in
the judgment of conviction. During the pendency of this appeal, the sentencing
court became aware of the restitution term contained in the judgment and, on its
own motion, issued an amended judgment pursuant ORS 137.172, excising the
restitution award. See ORS 137.172(1) (“The trial court retains authority after
entry of judgment of conviction or a supplemental judgment, including during the
pendency of an appeal, to modify the judgment, including the sentence, to correct
any arithmetic or clerical errors or to delete or modify any erroneous term in the
judgment.”).
2
Defendant was charged with two counts of first-degree rape (Counts 1 and
5), two counts of first-degree unlawful sexual penetration (Counts 2 and 6), and
four counts of first-degree sexual abuse (Counts 3, 4, 7, and 8). Defendant waived
his right to a jury trial as to Counts 1 and 2, and the court found him not guilty
of those counts. A jury found defendant guilty on Counts 3, 4, 5, 7, and 8, and not
guilty on Count 6. The court merged the verdict on Count 4 into the verdict on
Count 3. It also merged the verdict on Count 8 into the verdict on Count 7, leaving
the counts at issue in this appeal, namely, Counts 3, 5, and 7.
354 State v. Sangrolla
Initially, the sentencing court sentenced defendant
to a total of 124 months’ imprisonment: On Count 3, the
sentencing court sentenced defendant to 75 months’ impris-
onment, but ordered 24 months to be served consecutively to
the sentence on Count 5; on Count 5, the sentencing court
sentenced defendant to 100 months’ imprisonment; and on
Count 7, the sentencing court sentenced defendant to 75
months’ imprisonment, to be served concurrently with the
sentence on Count 5.
Defendant appealed the resulting judgment. On
appeal, we reversed and remanded the conviction on Count
5, because the verdict on that count was nonunanimous.
State v. Sangrolla, 309 Or App 316, 317, 481 P3d 411, rev den,
368 Or 514 (2021). We remanded for resentencing on Counts
3 and 7 and otherwise affirmed. Id.On remand, the sentencing court held a resentenc-
ing hearing on Counts 3 and 7 before Count 5 was adjudi-
cated or dismissed. During that hearing, defendant argued
that in proceeding with resentencing on Counts 3 and 7
prior to the dismissal or adjudication of Count 5, the sen-
tencing court would violate the Due Process Clause of the
Fourteenth Amendment. The sentencing court disagreed
and resentenced defendant on Counts 3 and 7 to a total of
111 months’ imprisonment. Both of those counts carried a
mandatory minimum sentence under ORS 137.700 of 75
months’ imprisonment, and the sentencing court sentenced
defendant to 75 months’ imprisonment on each. However,
with regard to Count 7, the sentencing court sentenced
defendant to serve 36 months consecutively to Count 3, and
the remaining 39 months concurrently with Count 3.
In explaining how it reached that sentence, the
sentencing court noted that “without the Rape convic-
tion”—i.e., without Count 5, which this court had reversed
and remanded—the conduct for which it was sentencing
defendant was different than that at issue during the orig-
inal sentencing. The sentencing court, therefore, did not
believe “that the total amount [of] time in custody imposed”
during defendant’s original sentencing was appropriate.
Nevertheless, it recognized that the “conviction on Count 7
demonstrates that this victim was subject to sexual abuse
Cite as 329 Or App 352 (2023) 355
on multiple occasions by this defendant” and that, therefore,
the court believed a sentence “that includes consecutive
time” was appropriate “to account for that this victim was
victimized on multiple occasions.”
Defendant then requested that the sentencing court
set a date by which the state would inform defendant and
the court as to how it intended to proceed on Count 5. The
court set a date approximately two weeks out, at which time
the state moved to dismiss Count 5. The court granted the
motion and dismissed Count 5 without prejudice, noting
that “the victim does not wish to prosecute [Count 5] at this
time, and that the ends of justice will best be served by the
dismissal.”
The sentencing court then entered a judgment dis-
missing Count 5 and sentencing defendant to 111 months’
imprisonment on Counts 3 and 7. Defendant appeals that
judgment.
ANALYSIS
As noted above, in his first assignment of error,
defendant contends that we must reverse his sentence and
remand for resentencing, because the sentence on remand
was vindictive in violation of defendant’s right to due pro-
cess. Reviewing for legal error, State v. Bradley, 281 Or App
696, 700, 383 P3d 937 (2016), rev den, 361 Or 645 (2017), we
disagree.
The Due Process Clause of the Fourteenth
Amendment to the United States Constitution provides that
“[n]o state shall * * * deprive any person of life, liberty, or
property without due process of law.” “Due process of law
requires that vindictiveness against a defendant for hav-
ing successfully attacked his first conviction must play no
part in the sentence he receives after a new trial.” Bradley,
281 Or App at 701 (internal quotation marks and ellipses
omitted).
A presumption that a sentence imposed on resen-
tencing was based on vindictive motives in violation of due
process “applies only when a sentencing court resentences
a defendant to a longer or otherwise more severe total
356 State v. Sangrolla
sentence.” Id. (internal quotation marks omitted; empha-
sis in Bradley); see also State v. Febuary, 361 Or 544, 565,
396 P3d 894 (2017) (“[T]he correct approach” to determine
whether a presumption of vindictiveness applies on resen-
tencing “is to compare the aggregate original sentence to
the aggregate sentence on remand.”). A presumption of vin-
dictiveness on resentencing does not apply where, as here, a
defendant’s aggregate sentence is less on resentencing than
the aggregate sentence that was originally imposed by the
sentencing court. Febuary, 361 Or at 565 (no presumption
of an “improper motive on the part of the trial judge” where
defendant’s initial sentence was “170 months’ imprisonment
and 60 months’ probation, and his subsequent sentence was
87 months’ imprisonment”). Where a presumption of vin-
dictiveness does not apply, a defendant “must affirmatively
prove actual vindictiveness” to establish a vindictive sen-
tence in violation of their due process rights. Bradley, 281
Or App at 701 (internal quotation marks omitted).
As we understand his argument, relying on Bradley,
defendant contends that actual vindictiveness is established
where, as here, a sentencing court imposes a “longer sen-
tence on the affirmed counts” (Counts 3 and 7) “before the
reversed count” (Count 5) is “disposed of.”3 We disagree that
Bradley can be read as broadly as defendant contends.
In Bradley, the defendant was originally sentenced to
a total of 215 months’ imprisonment based on his convictions
for conduct against two victims, C and Z, with 115 months
attributable to his conduct against Z, and the remainder
attributable to his conduct against C. 281 Or App at 698.
On appeal, we reversed and remanded the convictions with
respect to C because of evidentiary error, affirmed the con-
victions with respect to Z, and remanded for resentencing. Id.
At the defendant’s resentencing, while the charges
related to C were still pending, the sentencing court imposed
3
We do not understand defendant to be arguing that we should expand the
presumption of vindictiveness to the facts of this case. But if he is, that argument
is undeveloped, and we will not address it. See Beall Transport Equipment Co. v.
Southern Pacific Trans., 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clari-
fied on recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court’s function
to speculate as to what a party’s argument might be” or “to make or develop a
party’s argument when that party has not endeavored to do so itself.”).
Cite as 329 Or App 352 (2023) 357
a total sentence of 183 months’ imprisonment for defendant’s
conduct against Z. Id. at 700. The court explained that in
imposing the sentence on remand it was “entitled to con-
sider * * * the sexual abuse of [C] whose cases were reversed
and remanded.” Id. at 699. It reasoned that “the Court often
hears from victims of crimes [when the perpetrator was]
never convicted or never prosecuted, but the Court can con-
sider that other abuse” in fashioning a sentence. Id. It also
stated:
“I think that it hasn’t been put on the record and I know
[the state] doesn’t want to go there, but as far as the record
goes there is a strong possibility in this case that [the
defendant] may not even have to be re-prosecuted for [the
crimes against C]. The state might elect not to prosecute
[the defendant] on [C’s] case. They might consider this sen-
tence sufficient. But it doesn’t mean I can’t also consider
that in making my sentence.”
Id. at 700-01.
Following the defendant’s resentencing, on the
state’s motion, the court dismissed the counts that had been
reversed—i.e., those concerning C. Id. at 700. The defendant
appealed, arguing, among other points, “that the trial court
erred by imposing a longer sentence [on the counts regard-
ing Z at] resentencing.” Id. We agreed. Id. at 704.
We explained that the court’s conclusion that it was
“ ‘entitled to consider the sexual abuse of [C] whose cases
were reversed and remanded’ because of the ‘strong possi-
bility’ that ‘the State might elect not to prosecute him on
the other child’s case” was “problematic.” Id. at 703 (brack-
ets omitted). That was so because the court, in considering
the conduct underlying the reversed counts in its sentenc-
ing decision, effectively relieved the state of its “burden
to prove the reversed counts beyond a reasonable doubt,”
which is “the essence of punishing defendant for his suc-
cess on appeal.” Id. Further, to “the extent that the court
on resentencing after an appeal relies on an impermissible
consideration in increasing the sentence imposed on par-
ticular counts, the defendant establishes that the sentence
is vindictive.” Id. Thus, because in Bradley, the trial court
“based its decision to increase the sentence for the affirmed
358 State v. Sangrolla
counts on the reversed counts that were still pending pros-
ecution, the trial court exceeded the applicable limits under
the Due Process Clause of the Fourteenth Amendment” and
the defendant had “affirmatively proved actual vindictive-
ness.” Id. at 704.
Defendant is correct that this case bears some sim-
ilarities to Bradley. In both cases, the court resentenced a
defendant to longer sentences on particular counts (here,
Counts 3 and 7, and in Bradley, the counts concerning Z). In
both cases, during resentencing, a count or counts that we
had previously reversed were pending (here, Count 5, and
in Bradley, the counts concerning C). And, in both cases,
on a motion by the state, the count or counts that we had
reversed were dismissed after resentencing (here, Count 5,
and in Bradley, the counts concerning C).
However, the distinctions between the cases are
more significant than the similarities. As detailed above,
in Bradley, the sentencing court expressly considered the
“the sexual abuse of [C] whose cases were reversed and
remanded,” which effectively relieved the state of its “bur-
den to prove [that conduct] beyond a reasonable doubt,” and
that was the “essence of punishing defendant for his success
on appeal.” Id. at 703.
In contrast, in this case, when resentencing defen-
dant, the sentencing court did not consider the conduct
underlying Count 5. Instead, as noted above, in its discus-
sion of Count 7, the sentencing court took note that the
state had proven beyond a reasonable doubt that defendant
had sexually abused the victim on multiple occasions. As
a result, the sentencing court determined that a sentence
regarding Count 7 that included consecutive time to Count
3 was appropriate to account for that conduct.
That is, in this case, the sentencing court did not
consider the conduct underlying Count 5 that had been
reversed and remanded, and it, therefore, did not relieve the
state of meeting its burden of proof with respect to Count 5
if it had decided to reprosecute Count 5 once this court sent
the case back to the sentencing court.
Cite as 329 Or App 352 (2023) 359
Consequently, unlike the defendant in Bradley,
defendant in this case has not “affirmatively proved actual
vindictiveness.” Id. at 704. Put plainly, defendant has not
pointed to any “impermissible consideration” relied on by
the sentencing court in this case as the defendant in Bradley
did. Id. Therefore, we affirm.
Affirmed.