Oregon State Bar Bulletin — DECEMBER 2006

Legal Practice Tips
Texas Two-Step:
Rethinking State v. Jacob

By Jesse Wm. Barton

Two years ago the Bulletin ran an article by California attorney Jeff Bleich about Dretke v. Haley.1 That case came out of Texas and then was pending in the U.S. Supreme Court. The parallels between what Texas prosecutors had in mind for defendant Michael Haley, and what may be in store for the Oregon defendant in State v. Jacob,2 make Bleich’s article worth a review.

Bleich represented Haley in a case asking what seems like a simple question: If the prosecution agrees a criminal defendant is actually innocent of conduct that was used to aggravate his sentence, isn’t making him serve the aggravated sentence a miscarriage of justice a court can fix?

Haley got a "third-strike" sentence of 16 years even though, as the Texas prosecutors agreed, he was only a two-time offender. Because he had only two "strikes," his maximum sentence was two years. Up until oral arguments, Texas relied on a two-wrongs-make-a-right theory to oppose resentencing Haley to a two-year term. It seems that Haley’s prior attorneys missed their chance to object to the sentencing error. Under Texan thinking, the fact that those lawyers were wrong when they missed making the objection made it right for Haley to serve a three-strikes sentence.

Oregonians might think: "Well, that’s Texas. Nothing like that would happen here." But in State v. Jacob something like that could happen here.

In 1983, Andre Ramon Jacob was convicted of a felony. Although no jury said he used a firearm, the trial court thought he did so it set a "presentence hearing" — actually, a forced bench trial.3 During the bench trial the court found that Jacob used a firearm so gave him a first-strike gun-minimum of five years.4

But a few months before in State v. Wedge, the Supreme Court ruled that defendants have a state constitutional right to a jury trial on gun-use findings.5 This meant the former statute’s authority to force a bench trial on Jacob was useless, and the gun finding was invalid. Unfortunately, Jacob’s attorneys missed the Wedge objection so the finding was left intact.

Then as now the gun statute applies only upon "conviction" of a gun felony.6 By definition, someone is "convicted" only if he is found guilty "according to procedural rules that flow from societal notions of fairness and constitutional requirements of due process(.)"7 A guilt finding in breach of a defendant’s jury-trial right doesn’t flow from such notions,8 so by definition it is not a "conviction." Because the trial court breached Jacob’s jury-trial rights when it found gun use, he wasn’t "convicted" of a gun felony.

In 1985 the legislature corrected the gun-minimum statute to require jury findings.9 In 1991 Jacob was found guilty of a new gun felony. This time those pesky "societal notions of fairness and constitutional requirements of due process" were met. Jacob’s jury rights were respected, so he was "convicted."

Because Jacob’s 1983 gun finding breached his jury-trial rights so was not a "conviction," 1991 saw his first gun conviction and carried a first-strike minimum of five years. But no one realized the 1983 finding was not a "conviction," so Jacob’s 1991 conviction was treated as a second strike getting him a minimum of 10 years.10

In 2002, Jacob was found guilty of yet another gun-felony. His jury rights were respected, so he was "convicted." Coupled with his 1991 conviction, Jacob’s 2002 conviction was his second gun-felony strike. Still not realizing the 1983 gun finding was not a "conviction," the state said the 2002 conviction was Jacob’s third strike carrying a 30-year minimum.11

But this time Cheryl Chadwick of Portland represented Jacob. She learned that his jury-trial rights were breached in 1983, so his 2002 conviction was only his second strike carrying a 10-year minimum. Judge Robert Redding sustained Chadwick’s objection to a 30-year term, and the state appealed.

On appeal, everyone agreed that Jacob’s constitutional rights were breached in 1983 (thereby rebutting the presumption of regularity of judgments). But the majority in the court’s 5-4 en banc decision concluded that in 2002 Jacob couldn’t attack the 1983 gun finding. The majority held even though that finding would be used to aggravate his 2002 sentence, the only time Jacob could attack the finding was in 1983.

This is odd, because Oregon case law has long allowed defendants to attack unconstitutional priors that would be used to aggravate their current sentences.12 That makes sense. Any other holding would improperly "attribute() to the legislature the intent to sanction unconstitutional procedures."13

In any event, on appeal the state could argue only that Judge Redding "failed to comply with requirements of law in … failing to impose a" 30-year gun minimum.14 But in fact the judge complied with the requirements of law, because the gun statute requires a 30-year minimum only for a third "conviction." As Chadwick established, Jacob’s jury-trial rights were breached in 1983, so that gun finding was not a "conviction." Jacob’s only gun-felony convictions were from 1991 and 2002, so his 2002 conviction was his second strike requiring a 10-year minimum.

Besides exalting "the finality and conclusiveness of judgments"15 over the perhaps quaint notion that convicted persons shouldn’t serve more time than the law allows, the majority said that if the legislature intended to enable Jacob to challenge his 1983 gun finding, it would "have inserted (into the statute) the word ‘lawful’ or ‘valid’ before the word ‘conviction(.)’"16 But White explains that by definition, a "conviction" is lawful or valid, so those concepts were already in the statute enabling Jacob’s attack on the 1983 finding.

Because Jacob's prior lawyers failed to object earlier, he then got a total of 10 years worth of gun-minimum time the law didn't allow (five years in 1983, plus 10 years in 1991 when he should have gotten only five). Before the 1985 amendments took effect, some courts held jury trials in violation of the explicit bench-trial mandate of former ORS 161.610(3)-(4) (1981). The majority thought allowing Jacob to attack the 1983 gun finding in 2002 would be unfair, because it could put him in "a more favorable position" than pre-1985 defendants who immediately challenged their invalid gun findings and were convicted by juries.17

But to think this way, the majority had to presume that if Jacob had objected in 1983, a jury would have convicted him of gun use. Put more bluntly, the majority rejected Jacob’s claim by presuming him guilty of gun use in 1983. Through the wrong of violating Jacob’s presumption of innocence, the majority deemed it right to give him a gun minimum 20 years greater than the law allows. This two-wrongs-make-a-right thinking mirrors Texan thinking from Haley.

But Lyle Lovett’s not from Texas, and Oregon law shouldn’t be, either. If a defendant can show his constitutional rights were violated in finding him guilty, the law should allow him to bar using that finding to aggravate his sentence for a new crime. That’s been the law in Oregon for decades, and it should stay that way.


1. Dretke v. Haley, 541 US 386 (2004). Bleich’s article was Actual Innocence: How Supreme Court reforms have changed states’ conception of justice, OSB Bulletin (Feb/Mar 2004).

2. State v. Jacob, 208 Or App 62 (2006) (en banc).

3. Former ORS 161.610(3) (1981).

4. Former ORS 161.610(4) and (5)(a) (1981) ("if the court finds beyond a reasonable doubt that the defendant used … a firearm…, it shall impose" a gun minimum; "upon the first conviction" the minimum is "five years").

5. 293 Or 598, 607-08 (1982).

6. ORS 161.605(3) and (4)(a) ("if a defendant is convicted of a felony having as an element the defendant’s use * * * of a firearm," "upon the first conviction" the minimum is "five years" (emphasis added)).

7. State v. White, 303 Or 333, 343 (1987).

8. See, e.g., Duncan v. Louisiana, 391 US 145, 157-58 (1968).

9. Or Laws 1985, ch 552, § 1. The legislation did not say it was retroactive, so it was prospective only. See ORS 161.035(4). See also Rhodes v. Eckelman, 302 Or 245, 249 (1986).

10. Former ORS 161.610(4)(b) (1989) ("(u)pon (a second) conviction" the minimum is "10 years").

11. ORS 161.610(4)(c) ("(u)pon (a third) conviction" the minimum is "30 years").

12. See State v. Stewart, 321 Or 1, 7 (1995) (defendant may challenge using juvenile adjudication to aggravate his adult sentence, on ground that adjudication was jury-less). See also State v. Holliday, 110 Or App 426, 430, rev den, 313 Or 211 (1992); State v. Matilla, 52 Or App 743, 745-46 (1981). Superficially, State v. Sims, 335 Or 269 (2003) seems contrary. It is not, because it involved a type of aggravation scheme that was based on state agency orders rather than prior "convictions."

13. Pooler v. Motor Vehicles Div., 306 Or 47, 51 (1988).

14. ORS 138.222(4)(a).

15. Jacob, 208 Or App at 68.

16. Id. at 67.

17. Id. at 68 n 4.

The author is a Salem attorney.

© 2006 Jesse Wm. Barton

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