State v. Graves , 150 Or. App. 437 ( 1997 )

EDMONDS, J.,

concurring.

The majority holds that defendant’s sentences are subject to enhancement as a result of the inclusion of military court-martial convictions in his criminal risk history score. Although I agree that defendant’s military convictions are properly includable in his risk history score, I disagree with the majority’s reasoning that the validity of an out-of-state conviction for enhancement purposes is not to be tested by Oregon constitutional standards.

Defendant argues that his military convictions are void under the Oregon Constitution because they are in violation of Article I, section 11, which guarantees the right to trial “by an impartial jury” to all charged with criminal offenses.¹ He asks us to follow the reasoning of the court in State v. Herzog, 48 Wash App 831, 740 P2d 380 (1987), in which the Washington Court of Appeals refused to consider a foreign conviction from a country in which the defendant was entitled to only a two-person jury for sentence-enhancing purposes. The Washington court held that the foreign conviction was facially invalid under the federal constitution and that the trial court correctly refused to consider it for purposes of sentence enhancement, even though the foreign judgment was a valid judgment in its country of origin. The majority rejects defendant’s comparison, concluding that the “validity of out-of-state convictions should be tested under the constitutional requirements of that jurisdiction or of the federal constitution.” 150 Or App at 441. That statement is far-reaching and it has significant consequences to those subject to Oregon prosecutions. It is a conclusion with which I disagree.

We should hold that Article I, section 11, of the Oregon Constitution governs when the issue is whether a foreign conviction can be used to enhance an Oregon sentence. My position is premised on the belief that the protections against deprivation of liberty in section 11 are available to any person who is prosecuted within the state of Oregon. See State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (holding that the admissibility of evidence in an Oregon prosecution obtained by law enforcement officials outside the state is tested by Oregon Constitutional provisions). This case illustrates the importance of that interpretation because a portion of defendant’s liberty is at stake. Depending on whether his criminal history risk score is enhanced by his military convictions, the duration of the maximum available sentences under the sentencing guidelines apparently could be affected by as much as 20 months. Although the majority concedes that the protections of section 11 are generally available to persons subjected to prosecution in Oregon, it opines that “[t]hose protections do not bear on the validity of defendant’s out-of-state convictions.” 150 Or App at 441. That bare conclusion ignores the deprivation of liberty that could occur if the protections of section 11 are not made available to individuals in the position of defendant.

In support of its assertion, the majority relies on its understanding of two Oregon Supreme Court cases: State v. Stewart/Billings, 321 Or 1, 892 P2d 1013 (1995), and Clark v. Gladden, 247 Or 629, 432 P2d 182 (1967). In Stewart/Billings, the court held that Oregon juvenile adjudications could be used for adult sentence enhancement because there were no constitutional infirmities in the juvenile adjudications. It relied on its reasoning in State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 575, 857 P2d 560 (1993), that the jurisdictional phase of a juvenile proceeding under ORS 419.476(l)(a) is not a “criminal prosecution” within the meaning of section 11. Juvenile court proceedings are concerned with whether the statutory grounds for jurisdiction have been established and, if so, what disposition is in the best interests of the child. 317 Or at 574. The prosecution of defendant was much different in nature. Unless the majority is prepared to say that general court martial proceedings for larceny of United States mail, the breaking of the glass window and two safe locks in a military personnel office, the destruction of military records, the theft of military property, the uttering of forged checks, burglary and the possession of identification instruments with the intent to defraud are not “criminal prosecutions” under section 11, the reasoning of Stewart /Billings is inapplicable.²

Also, the majority and I differ on our understanding of the import of the court’s holding in Clark v. Gladden. Clark was serving an enhanced sentence as a habitual criminal. He filed a petition for post-conviction relief, alleging that foreign convictions from Missouri, Oklahoma and Texas upon which the enhancement was based were defective because of the denial of counsel and other constitutional defects in the procurement of those convictions. The trial court sustained a demurrer to his petition, and he appealed. First, the court pointed out the full-faith-and-credit clause of the federal constitution is not offended by a collateral attack. It said:

“No state is required to take notice of foreign convictions in sentencing those who violate its own criminal laws. Each state is free to give foreign convictions such force as it deems proper in the administration of local sentencing policy. The courts of each state must determine which convictions meet constitutional standards in carrying out the legislative policy of their own recidivist laws.” 247 Or at 636-37. (Emphasis supplied.)

The Clark court concluded:

“An Oregon convict, therefore, may, when charged * * * with being a habitual criminal, allege constitutional defects and thereby call into question one or more of his prior convictions.

“If his allegations meet Oregon standards of legal sufficiency, and if his allegations are admitted or proven, the sentencing court will disregard the convictions thereby found to be constitutionally defective.

“There is no reason for treating a foreign conviction differently than an Oregon conviction in carrying out Oregon sentencing policies. The substantive question in either case is whether the former conviction called into question is one that ought to be considered as a part of the criminal history of the prisoner for our own sentencing purposes.

" ** * * *

“For our own purposes in administering the Oregon recidivist laws, the courts of this state can distinguish between a foreign conviction in which the prisoner alleges defects that could be reached by collateral attack if it were an Oregon judgment and one in which he alleges some other constitutional irregularity which would not constitute grounds for post-conviction reliefl.]” Id. at 637-38. (Emphasis supplied; citations omitted.)

The Supreme Court’s reasoning in Clark is applicable to this case. Because defendant was prosecuted in Oregon and his liberty is subject to deprivation by an Oregon court because of his foreign convictions, section ll’s standards apply. The majority seeks to distinguish Clark on the ground that because all references in the opinion are to federal cases about the right to assistance of counsel, “[i]t does not appear that the court considered whether the validity of the foreign convictions was to be measured under Oregon or federal constitutional standards.” 150 Or App at 442-43. To the contrary, the language of the opinion could not be more clear. Oregon courts are to disregard foreign convictions when Oregon standards of legal sufficiency are not met.

I turn now to defendant’s specific arguments about the validity of his military convictions under Oregon law. The most salient fact in this case is that defendant did not assert his right to trial in military court. He was represented by counsel and pled guilty to all six counts. Moreover, he offers no evidence that he was induced to enter his pleas because of the characteristics of the factfinding process in the courts-martial.³ Rather, he relies on an abstract argument that makes a comparison of those characteristics with the jury requirements under section 11 and concludes that, because they are not comparable, his military convictions are necessarily void under section 11. In sum, there is no showing in this case that defendant was harmed by any of the alleged constitutional infirmities that he raises.

It is clear that under Clark a court is to consider the issue of the validity of a foreign judgment under the Oregon Constitution as if it had been rendered in Oregon in determining whether it ought to be used for enhancement purposes. As the court said, “there is no reason for treating a foreign judgment differently than an Oregon conviction in carrying out Oregon sentencing policies.” In Oregon, a guilty plea is an admission of the ultimate facts that are the material elements of the crime charged. A judgment of conviction based on a guilty plea is a valid judgment so long as it is made voluntarily and intelligently, accompanied by a factual basis for the plea. State Farm Fire and Cas. Co. v. Sallak, 140 Or App 89, 914 P2d 697 (1996). There is no indication in this record that defendant’s pleas were not factually based or not made voluntarily and intelligently. Our inquiry need go no further. Defendant should not be heard to complain about deficiencies in a factfinding process in which he did not participate and which did not lead to the judgments of conviction in issue. Accordingly, the trial court did not err in using his military convictions for purposes of enhancement.

1 Oregon Administrative Rules authorize the use of convictions by military tribunals if the elements of the offenses would have constituted offenses under Oregon law. In effect, defendant challenges the constitutionality of the application of that rule to him.

2 Defendant pled guilty to all of the above charges.

3 In Herzog, the defendant’s conviction arose from a two-person jury trial and not from a guilty plea. Thus, he was able to demonstrate that he had been harmed by the process that was facially invalid under the United States Constitution.