State v. Stewart ( 1993 )

RIGGS, J.

Defendant appeals the sentence imposed on his convictions of two counts of burglary in the first degree, ORS 164.225, for burglarizing two bouses. We affirm the sentence on the first count and remand for resentencing on the second count.

Before sentencing, defendant moved to exclude his juvenile adjudications from the calculation of his criminal history score. That motion was denied and the court used defendant’s four juvenile adjudications for burglary when it assigned him a criminal history score of G. Absent the juvenile adjudications, defendant’s criminal history score would have been I. The court declared that the burglary of the occupied dwelling was the primary offense and sentenced defendant to 22 months in prison and 36 months of post-prison supervision. After finding that the county jail could accommodate him for 180 days on the second count of burglary, the court imposed 180 days of jail incarceration, consecutive to the prison term, and a 36-month term of probation.

The indictment on the first count contains an allegation, enhancing the seriousness of the crime, that defendant burglarized an occupied dwelling. Defendant argues that, because the state had to prove that he knew that the house was occupied, the court erred in refusing to give his requested instruction which, he claims, “would have properly apprised the jury that knowledge is the mental state for tbe penalty enhancer.” The proposed instruction provided, in part:

“To establish the crime of Burglary in the First degree of an occupied dwelling, the state must prove beyond a reasonable doubt each of the following elements:

“(4) That the Defendant, at the time of the entry or remaining, knew that the premises described in the charge was an occupied building.”

We need not decide whether the state must prove that defendant knew that the building was occupied in order for the sentence to be enhanced. Defendant concedes that his proposed instruction treated the penalty enhancer as an element of the crime, which it is not. State v. Lark, 113 Or App 458, 463, 833 P2d 1286 (1992), aff’d in part; rev’d in part on other grounds 316 Or 317, 851 P2d 1114 (1993). “A requested instruction is properly refused unless it ought to have been given in the very terms in which it was proposed.” State v. Francis, 284 Or 621, 626, 588 P2d 611 (1978). Because the requested instruction misstated the law, it was properly refused.

Defendant next assigns error to the trial court’s use of his juvenile adjudications to calculate his criminal history score pursuant to OAR 253-04-007.¹ He argues that, because there is no right to a jury trial in juvenile adjudications, their use to enhance adult prison sentences is unconstitutional. Defendant’s argument relies primarily on City of Pendleton v. Standerfer, 297 Or 725, 688 P2d 68 (1984). See also State v. Grenvik, 291 Or 99, 628 P2d 1195 (1981); Brown v. Multnomah County Dist. Court, 280 Or 95, 570 P2d 52 (1977). In City of Pendleton v. Standerfer, supra, the defendant was convicted of DUII in 1982. His petition for diversion was denied because of a 1979 DUII conviction. The Supreme Court held that the 1979 conviction was invalid because the defendant had no counsel and there was no waiver of counsel. Because the 1979 conviction was invalid, it could not be used to deny diversion in 1982.

Defendant analogizes the invalid uncounselled conviction in Standerfer to his valid juvenile adjudication, on the ground that both proceedings lacked the full range of protections required in a criminal trial. He argues that his juvenile adjudiction therefore was invalid for purposes of enhancing a criminal penalty. However, defendant’s reliance on Stan-derfer is misplaced, because juvenile proceedings are sui generis. It has long been recognized that commitment to a juvenile facility is a loss of liberty, and that due process requires a right to counsel, confrontation and cross-examination and other safeguards associated with criminal procedure, with the notable exception of a right to a trial by jury. In State v. Turner, 253 Or 235, 238, 240, 453 P2d 910 (1969), the court held that juvenile adjudications had sufficient guarantees of due process to commit juveniles to juvenile facilities, even in the absence of a jury trial. See also State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 857 P2d 842 (1993). An adjudication sufficient to commit a juvenile to a juvenile facility can later be used to enhance a sentence as an adult.

Defendant next assigns error to the jail sentence and the probationary term imposed on the second burglary charge. This assignment was not preserved and we do not consider it. State v. Farmer, 317 Or 220, 224, 856 P2d 623 (1993); see also State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).

Defendant argues that his consecutive sentence on the second burglary charge was improper in three respects. First, he argues that the imposition of a jail term consecutive to a prison term violated OAR 253-12-020(2)(d), which reads: ££[I]f any sentence includes a prison term, the entire incarceration term of the consecutive sentences shall be served in prison.” Defendant is correct. Second, he contends that the trial court could not impose a sentence of 180 days — the maximum number of custody units. That, too, is correct. OAR 253-05-013(3), which allows a trial court to impose the maximum number of custody units for a jail term if space is available in the local jail, does not apply to consecutive prison sentences. State v. Holliday, 110 Or App 426, 432, 824 P2d 1148 (1992). Third, defendant challenges the separate probationary term imposed on the second charge. That probationary term should have merged with the post-prison supervision ordered for the first charge. State v. Dummitt, 115 Or App 487, 490, 839 P2d 246 (1992); OAR 253-12-020(3)(a).

Remanded for resentencing on Count II; otherwise affirmed.

1 OAE 253-04-007 reads:

“The criminal history categories in the Criminal History Scale are:

“G The offender’s criminal history includes four or more adult convictions for Class A misdemeanors; one adult conviction for a non-person felony, or three or more juvenile adjudications for non-person felonies, but no adult conviction or juvenile adjudication for a person felony.”

Defendant has four juvenile adjudications for non-person felonies.