We Need to Talk About Mallory
The title is a reference to a new movie that falls into the category of “apparently great movies that I have no desire to see.”
But we should talk about Mallory, specifically, State v. Mallory. And though I’ve written about it before, the recent Orchard v. Mills opinion makes it worth revisiting. Because had the right argument been made at the trial level, there’s a good chance it would have made a huge difference in calculating Mr. Orchard’s maximum sentence.
The following is borrowed in part from an appellate brief for a case currently working its way through the COA.
In Mallory, the COA held that a determination of separate criminal episodes may, but does not categorically, fall within the prior conviction exception of Apprendi and Blakely. 213 Or App at 400. In that case, the defendant pleaded guilty to theft-related offenses. The trial court first sentenced the defendant on five of the offenses, including one count of aggravated theft, and imposed repeat property offender sentences on the remaining seven convictions. On appeal, the defendant assigned error to the imposition of the repeat property offender sentences without a jury determination as to whether any of the predicate convictions arose from the same conduct or criminal episode. Id. at 394. The state countered, inter alia, that the separate criminal episode determination categorically fell within the prior conviction exception to Apprendi, and, alternatively, that the sentencing court was authorized under Shepard to make the separate criminal episode determination based on judicial records of conviction. Id. at 398.
The Mallory court rejected the state’s first argument, but concluded that Shepard authorized a sentencing court to make the separate criminal episode determination “so long as the court limits its inquiry to approved sources” id. at 403, and the inquiry does not “require factfinding beyond a determination of what is in the court records,” id. at 405. Applying that rule to the record before it, the Mallory court concluded that the defendant’s admission that six of the seven offenses for which she received an enhanced sentence occurred more than 30 days part from the predicate offense permitted the sentencing court to conclude that the defendant’s crimes arose from separate criminal episodes. Id. at 405.
Take the facts in Orchard v. Mills. In that case, the date in the indictment for the hit and run would have been the same as the assault and DUII. There would have been no plea petition. It is unlikely the jury would have been asked to make a finding of separate criminal episodes (had there been a jury trial). It is unlikely, in other words, that the trial court would have been permitted to make a finding of separate criminal episodes.
The brief again, slightly edited:
Consistent with Mallory and the United States Supreme Court case law upon which it relied, the sentencing court can only make a separate criminal episode determination “so long as the court limit[ed] its inquiry to approved sources,” Mallory, 213 Or App at 403, and the inquiry did not “require factfinding beyond a determination of what is in the court records,” id. at 405. For jury convictions, those approved sources are the statutory elements of the offense, the charging instrument, and the jury instructions. Taylor, 495 US at 602.
Even if — given the analysis in Orchard v. Mills — that the elements of Hit and Run alone would have supported a finding of separate criminal episodes, that certainly wouldn’t be true for the firearms. Consequently, without an express jury finding, all of the firearm charges after the first would have “shifted to I” and thus been presumptive probation, if the trial court had any inclination to run them consecutively (which it appears he or she did).
Given the fact that Mallory came out 4 1/2 years ago, the absence of any subsequent appellate opinions addressing this issue is an embarrassment to the defense bar. Maybe Mallory will be overruled when we finally get the COA to address it again. Well, that’s part of being in the criminal defense arena. Our few advantages tend to be short-lived. But it seems that virtually no one has preserved a challenge under Mallory, and that means we aren’t doing our jobs.