No. 43 November 13, 2015 147

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

SANTOS CUEVAS,

Respondent on Review.

(CC 09082394C; CA A149668; SC S062464)

En Banc

On review from the Court of Appeals.*

Argued and submitted February 3, 2015.

Doug M. Petrina, Assistant Attorney General, Salem, 

argued the cause and filed the brief for petitioner on review. 

With him on the brief were Ellen F. Rosenblum, Attorney 

General, and Anna M. Joyce, Solicitor General.

Jesse Wm. Barton, Salem, argued the cause and filed the 

brief for respondent on review.

Kyle Krohn, Deputy Public Defender, Salem, filed the 

brief for amicus curiae Office of Public Defense Services. 

With him on the brief was Peter Gartlan, Chief Defender, 

Office of Public Defense Services.

KISTLER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

Walters, J., dissented and filed an opinion, in which 

Landau and Brewer, JJ., joined.

______________

* Appeal from Malheur County Circuit Court, J. Burdette Pratt, Judge. 263 

Or App 94, 326 P3d 1242 (2014).
148 State v. Cuevas

Case Summary: Defendant was convicted of multiple counts of sex abuse, 

sodomy, and rape, and the trial court determined that all of defendant’s convictions arose out of separate criminal episodes. For that reason, the trial court 

relied on each of defendant’s convictions in calculating the criminal history score 

for subsequent convictions sentenced in the same proceeding, exercised its discretion to impose defendant’s sentences consecutively, and declined to apply the 

sentencing guidelines limitation on aggregate consecutive sentences. The Court 

of Appeals held that the trial court should have submitted the factual determination of whether defendant’s convictions arose out of the same or separate criminal 

episodes to the jury, but held that the error was harmless. Held: (1) The Court 

declined to revisit its prior decisions in Miller and Bucholz and adhered to the 

interpretations of the sentencing guidelines formulated in those cases; (2) when 

a defendant’s convictions arose out of the same criminal episode, the sentencing 

guidelines rule limiting the length of an aggregate sentence serves only to limit a 

defendant’s sentence, and thus federal law did not require that the factual determination whether the convictions arose out of the same or separate criminal episodes be submitted to the jury; and (3) the sentencing guidelines rule that directs 

a trial court to count each prior conviction in determining a defendant’s criminal 

history unless that conviction and the conviction being sentenced arose out of the 

same criminal episode limits the length of a defendant’s sentence, and thus federal law does not require that the factual determination whether a prior conviction arose out of the same or separate criminal episodes be submitted to the jury.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
Cite as 358 Or 147 (2015) 149

KISTLER, J.

This case involves two sentencing guidelines rules. 

One rule directs trial courts to count a defendant’s convictions at the time of sentencing in calculating the defendant’s 

criminal history. OAR 213-004-0006(2). The other rule limits the length of a consecutive sentence that a trial court 

can impose. OAR 213-012-0020(2). On appeal, the Court 

of Appeals concluded that both rules increased defendant’s 

sentence based on facts that, under Apprendi v. New Jersey, 

530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), a jury 

must find beyond a reasonable doubt. State v. Cuevas, 263 

Or App 94, 114, 326 P3d 1242 (2014). Although the Court 

of Appeals concluded that the trial court should have submitted those facts to the jury, it held that the failure to do 

so was harmless error. Id. On review, we hold that the two 

sentencing guidelines rules do not implicate Apprendi and 

affirm the Court of Appeals decision on that ground.

A jury convicted defendant of 10 counts of rape, sodomy, and sexual abuse.1

 When a jury finds a defendant guilty 

of multiple offenses, a trial court must make two related but 

separate sentencing decisions. One decision involves the 

length of the sentence for each conviction. The other involves 

whether the convictions should run concurrently or consecutively. Oregon has adopted statutes and sentencing guidelines rules to assist trial courts in making those decisions.

For most felony convictions, Oregon’s sentencing 

guidelines prescribe a presumptive sentence based on the 

seriousness of the offense and the defendant’s criminal history.2 See State v. Speedis, 350 Or 424, 427, 256 P3d 1061 

(2011) (describing the sentencing guidelines). The guidelines 

also instruct trial courts on how to calculate a defendant’s 

criminal history. As discussed below, the guidelines provide that, when a court sentences a defendant for multiple 

1 The jury found that the offenses involved two different children and 

occurred at three separate locations. After the jury returned its verdict, the state 

conceded that two convictions merged into two other convictions, leaving eight 

convictions for sentencing.

2 Although the sentencing guidelines do not apply to all criminal convictions, 

the state conceded at trial that the guidelines apply to the convictions in this 

case.
150 State v. Cuevas

convictions in a single sentencing proceeding, the sentence 

imposed on the first conviction counts as part of the defendant’s criminal history in determining the sentence for the 

second conviction unless the convictions arose out of a single 

criminal episode. OAR 213-004-0006(2); State v. Bucholz, 

317 Or 309, 314-15, 855 P2d 1100 (1993) (interpreting an 

earlier version of that rule).

Once a trial court has determined the sentence 

for each individual conviction, the remaining question 

is whether the sentences for those convictions should be 

imposed consecutively or concurrently. Under ORS 137.123, 

multiple convictions will be sentenced concurrently unless 

the trial court finds (1) that the offenses that gave rise to 

those convictions did not occur as part of the same course 

of conduct or (2) even if the offenses occurred as part of the 

same course of conduct, one offense was not incidental to the 

other or the two offenses resulted in separate harms. If the 

court makes one of those findings, it may impose consecutive sentences.

That is not the end of the analysis, however. If a trial 

court decides to sentence convictions consecutively, the sentencing guidelines limit the length of the aggregate consecutive sentence that the trial court may impose if the convictions 

that resulted in the aggregate consecutive sentence arose 

out of a single criminal episode. OAR 213-012-0020(2)(a);

State v. Miller, 317 Or 297, 306, 855 P2d 1093 (1993) (interpreting an earlier version of that rule). As discussed in 

greater detail below, if the convictions that the court sentenced consecutively arose out of a single criminal episode, 

the sentencing guidelines limit the length of the aggregate 

consecutive sentence by assigning the lowest possible criminal history score (and thus the lowest sentencing range) to 

each sentence that is imposed consecutively. OAR 213-012-

0020(2)(a).

In this case, the trial court merged two of defendant’s 10 convictions into two other convictions.3

 The court 

then imposed a presumptive sentence on each of defendant’s 

3 Based on the state’s concession, the trial court merged count 8 (first-degree 

sexual abuse) into count 4 (second-degree sodomy) and count 6 (first-degree sexual abuse) into count 2 (first-degree sodomy).
Cite as 358 Or 147 (2015) 151

remaining eight convictions based on the seriousness of 

each offense and defendant’s criminal history.4

 After the 

trial court determined the sentence on defendant’s the first 

conviction, it counted that conviction as part of his criminal history in determining the presumptive sentence for 

defendant’s second conviction. Including the first conviction 

as part of defendant’s criminal history increased his criminal history score and, for that reason, resulted in a higher 

presumptive sentence for the second conviction. The court 

followed the same course in determining the presumptive 

sentences for the remainder of defendant’s convictions.5

The court found that each of defendant’s eight convictions arose out of a separate criminal episode. Given that 

finding, the court exercised its discretion to sentence each 

of those convictions consecutively. ORS 137.123. Finally, the 

trial court found that the limits that the sentencing guidelines place on the length of the aggregate consecutive sentence did not apply because the convictions did not arise out 

of a single criminal episode.

Throughout this litigation, defendant has argued 

that the trial court did not apply the two sentencing guidelines rules consistently with the federal constitution. The 

Court of Appeals agreed with defendant. Specifically, it 

agreed that each rule increased defendant’s sentence on the 

basis of a factual issue—whether defendant’s convictions 

arose out of the same or separate criminal episodes. See 

Cuevas, 263 Or App at 113-15. It also agreed that defendant 

had a right under the Sixth and Fourteenth Amendments to 

have the jury decide that fact before the trial court applied 

4 The guidelines permit a trial court to impose an upward or a downward 

departure from the presumptive sentencing range if the trial court finds “substantial and compelling reasons” for doing so. See State v. Dilts, 336 Or 158,

161-62, 82 P3d 593 (2003) (describing sentencing guideline rules), vac’d and 

rem’d on other grounds, Dilts v. Oregon, 542 US 934, 124 S Ct 2906, 159 L Ed 2d 

809 (2004). In this case, the trial court did not impose a departure sentence on 

any of defendant’s convictions.

5 By the time that the trial court imposed sentences on four of defendant’s 

convictions, defendant’s criminal history score had topped out, and each additional conviction did not increase defendant’s score. However, the sentences for 

defendant’s fifth, sixth, seventh, and eighth convictions were all higher than they 

would have been if his first, second, and third convictions had not been included 

in his criminal history score.
152 State v. Cuevas

those two sentencing rules to calculate defendant’s sentence. 

Id. The Court of Appeals held, however, that the trial court’s 

failure to submit that factual issue to the jury was harmless 

because the only conclusion that a reasonable juror could 

have reached on this record was that defendant’s eight convictions arose out of separate criminal episodes. Id.

The state petitioned for review, even though the 

Court of Appeals had affirmed the trial court’s judgment on 

harmless error grounds. The state argued that the Court of 

Appeals had misconstrued both the sentencing guidelines 

rules and Apprendi. The state contended that the Court of 

Appeals’ ruling, if left uncorrected, would result in unnecessary jury determinations in similar cases in the future. We 

allowed the state’s petition for review to consider whether 

the Court of Appeals erred in applying Apprendi to the two 

sentencing guidelines rules. See State v. Snyder, 337 Or 410, 

97 P3d 1181 (2004) (allowing review in a similar procedural 

posture).

On review, defendant argues initially that we 

should overrule this court’s decisions in Miller and Bucholz. 

He contends that this court erred in limiting the sentencing guidelines rules at issue in those cases (and this one) 

to instances in which a defendant’s convictions arose out 

of the same criminal episode. In defendant’s view, each of 

those rules applies without regard to whether the convictions arose out of the same or separate criminal episodes. 

Defendant argues alternatively that, even if we do not overrule Miller and Bucholz, the question whether his convictions arose out of separate criminal episodes was a necessary factual predicate to increasing his sentence under both 

sentencing guideline rules. It follows, he contends, that he 

has a federal constitutional right under Apprendi to require 

that a jury find that fact beyond a reasonable doubt.

We begin with defendant’s argument that Miller 

and Bucholz should be overruled. If we were to agree with 

defendant on that issue, we would not need to reach the federal constitutional issues that he pressed below and that the 

Court of Appeals decided. As we read this court’s decisions 

in Miller and Bucholz, they start from a proposition that the 

court identified in Miller. The court explained that, when 
Cite as 358 Or 147 (2015) 153

the Criminal Justice Sentencing Commission drafted the 

sentencing guidelines rules, “only single-episode criminal 

acts could have been joined in one indictment or criminal 

case” and sentenced in a single judicial proceeding. Miller, 

317 Or at 303. The court noted that the sentencing guidelines rules were consistent with that assumption. Id. at

304-05. That is, they limited the length of consecutive 

sentences imposed in a single judicial proceeding on the 

assumption that the offenses being sentenced in that proceeding arose out of a single criminal episode. Id. However, 

the sentencing guidelines did not place that limit on sentences imposed in separate proceedings, which would have 

arisen out of separate criminal episodes. Id.

In 1989, the legislature changed the statutes to 

permit offenses that arose out of separate criminal episodes to be joined in the same indictment. See id. at 303; 

Or Laws 1989, ch 842, § 1. As a result of that statutory 

change, offenses sentenced in a single criminal proceeding 

could arise out of separate criminal episodes. The court gave 

effect to that statutory change by interpreting the sentencing guidelines rule that limits the aggregate length of consecutive sentences to apply only to offenses arising out of a 

single criminal episode. Miller, 317 Or at 306. The court reasoned that, if it interpreted the rule otherwise, the length of 

a defendant’s consecutive sentence could be manipulated by 

charging two offenses arising out of a single criminal episode in separate proceedings. Id.6

That same context informed the court’s decision 

in Bucholz. The court noted in Bucholz that the sentencing 

guidelines rule governing a defendant’s criminal history 

originally provided that the only convictions that would 

count as part of an offender’s criminal history were those 

convictions that existed at the time the current crime was 

6 The court noted that “the [1989] legislature considered and adopted the liberal joinder bill * ** and the sentencing guidelines bill * ** in the same legislative 

session and through hearings in the same committee.” Miller, 317 Or at 305. The 

court also noted two conflicting views on whether the joinder bill would affect the 

sentencing guidelines bill and appears to have given greater weight to the view 

that “if a change in current charging law is adopted, that change could have an 

effect on calculation of the criminal history score.” Id. at 305 n 2 (summarizing 

Kathleen Bogan’s testimony before the committee). 
154 State v. Cuevas

committed. 317 Or at 312. The legislature changed that 

rule to provide that an offender’s criminal history would 

be based on the offender’s convictions “at the time the current crime or crimes of conviction is sentenced.” Id. (quoting text of rule). As discussed in greater detail below, after 

considering the legislative history of that change, the court 

explained in Bucholz that, when a trial court sentences 

multiple convictions in a single hearing, each conviction 

that is sentenced counts towards a defendant’s criminal history unless the convictions arose out of the same criminal

episode.

In interpreting the sentencing guidelines rules in 

Miller and Bucholz, this court considered many of the same 

arguments that defendant raises here. Since this court 

decided Miller and Bucholz more than 20 years ago, they 

have become an integral part of the fabric of Oregon sentencing laws. During that time, neither the legislature nor 

the Oregon Criminal Justice Commission has amended the 

sentencing guidelines rules to restore what defendant contends was the true meaning of those rules. Rather, the sentencing guidelines rules that this court interpreted in Miller 

and Bucholz have been applied repeatedly in calculating 

innumerable sentences.

Those considerations counsel against disturbing 

the decisions in Miller and Bucholz, even if we might have 

interpreted the rules at issue in those cases differently. 

See Farmers Ins. Co. v. Mowry, 350 Or 686, 700, 261 P3d 1 

(2011) (reaching a similar conclusion where the issues had 

been fully litigated and transactions had been structured 

based on this court’s prior interpretation). We accordingly 

decline defendant’s invitation to overrule Miller and Bucholz 

and conclude that any changes to those sentencing guidelines rules should be left to the legislature and the Criminal 

Justice Commission. We accordingly turn to defendant’s 

argument that the two sentencing guidelines rules, as interpreted in Miller and Bucholz, depend on facts that, under 

Apprendi, must be found by a jury beyond a reasonable 

doubt. We begin by restating the applicable federal constitutional principles and then discuss the two sentencing guideline rules.
Cite as 358 Or 147 (2015) 155

I. APPLICABLE FEDERAL PRINCIPLES

In 2000, the United States Supreme Court held:

“Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.”

Apprendi, 530 US at 490. Four years later, the Court 

explained in Blakely v. Washington, 542 US 296, 124 S Ct 

2531, 159 L Ed 2d 403 (2004), “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a 

judge may impose solely on the basis of the facts reflected 

in the jury verdict or admitted by the defendant.” Id. at 303 

(emphasis omitted). Finally, the Court explained in Oregon 

v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009), 

that the rule in Apprendi provides a means for determining the elements of an individual offense that a jury must 

decide beyond a reasonable doubt. It does not extend to a 

trial court’s decision to impose individual sentences consecutively, even though that decision increases a defendant’s 

aggregate sentence based on facts that a jury has not found.

II. CONSECUTIVE SENTENCING

OAR 213-012-0020(2)(a) limits the length of an 

aggregate consecutive sentence if the convictions that comprise the sentence arose out of the same criminal episode. 

OAR 213-012-0020(2); Miller, 317 Or at 306.7

 The rule 

7 OAR 213-012-0020 provides, in part:

“(1) When the sentencing judge imposes multiple sentences consecutively, the consecutive sentences shall consist of an incarceration term and a 

supervision term.

“(2) (a) Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:

“(A) The presumptive incarceration term or the prison term defined in 

OAR 213-008-0005(1) imposed pursuant to a dispositional departure for the 

primary offense, as defined in [OAR] 213-003-0001(17); and

“(B) Up to the maximum incarceration term indicated in the Criminal 

History I Column for each additional offense imposed consecutively.”

The indictment alleged that defendant committed the charged offenses 

between January 1, 1995 and 2002. During that period, the applicable sentencing rule was renumbered and amended in respects that are not relevant to the 

issues that defendant raises on review. This opinion cites the current version of 

the administrative rule.
156 State v. Cuevas

divides the offenses that comprise a consecutive sentence 

into two parts: the primary offense and additional offenses. 

OAR 213-012-0020(2)(a). It provides that the aggregate consecutive sentence cannot exceed the sum of the presumptive sentence for the primary offense (which is based on the 

seriousness of the crime and the offender’s actual criminal 

history) and the presumptive sentences for each additional 

offense (which is based on the seriousness of each additional 

offense and an assumed criminal history). Id. In determining the presumptive sentence for each additional offense, 

the rule assumes that the offender has no criminal history 

and assigns the lowest criminal history score possible to 

that offense. Id. Doing so limits a defendant’s aggregate 

consecutive sentence by imposing the lowest presumptive 

sentencing range possible for each additional offense that is 

sentenced consecutively.8

As we understand defendant’s federal constitutional 

argument, it runs as follows. The question whether OAR 

213-012-0020(2)(a) limits a defendant’s aggregate consecutive sentence turns on whether the convictions that make 

up the sentence arose out of the same or separate criminal episodes. In defendant’s view, the rule presumes that 

a trial court will impose a limited sentence (one in which 

all additional consecutive sentences are based on the lowest 

criminal history score possible), and it permits a trial court 

to impose a greater consecutive sentence only if a defendant’s convictions arose out of separate criminal episodes. 

Defendant reasons that the question whether his convictions arose out of the same or separate criminal episodes is 

a factual issue that the jury did not decide in finding him 

guilty of the charged offenses. It follows, he contends, that 

he has a federal constitutional right under Apprendi to have 

the jury find that factual predicate before the trial court can 

impose an increased consecutive sentence.

8 The sentencing guidelines limit the length of a consecutive sentence 

another way. See OAR 213-012-0020(2)(b). In addition to the limitation discussed 

above, subsection (b) provides alternatively that a consecutive sentence cannot be 

greater than twice the length of the presumptive sentence, except as provided in 

OAR 213-008-0007. Id. That alternative limit also applies only if the convictions 

that gave rise to the consecutive sentence arose from the same criminal episode. 

Miller, 317 Or at 305. Because defendant does not argue that the alternative limit 

in OAR 213-012-0020(2)(b) results in a shorter consecutive sentence than the 

limit in OAR 213-012-0020(2)(a), we do not discuss subsection (b) further.
Cite as 358 Or 147 (2015) 157

We agree with defendant that the question whether 

his convictions arose out of the same or separate criminal 

episodes is a factual issue. We also agree that the jury did 

not decide that factual issue in finding that he was guilty of 

the charged offenses. Put differently, on the record in this 

case, we cannot say that that factual issue comes within the 

“prior conviction” exception that Apprendi recognized. See 

530 US at 490 (explaining that “[o]ther than the fact of a 

prior conviction” a jury must find facts that increase a defendant’s sentence above the statutory maximum).9

We conclude, however, that defendant’s federal constitutional argument fails for two reasons. First, as a matter 

of state law, the factual finding on which defendant’s argument turns did not increase his sentence. Rather, it provided 

a basis for reducing his sentence, and Apprendi does not 

require that the jury find facts that reduce the length of a 

defendant’s sentence. Second, even if defendant were correct 

that the rule directs a trial court to begin with a limited 

aggregate consecutive sentence and increase that sentence 

only if the convictions arose out of separate criminal episodes, the Court’s decision in Ice makes clear that the rule, 

as defendant interprets it, does not violate the principle 

announced in Apprendi.

In considering the first reason, we begin with the 

premise of defendant’s argument—that, as a matter of state 

law, OAR 213-012-0020(2)(a) directs courts to begin with 

a limited consecutive sentence and increase that sentence 

only if the convictions that comprise the sentence arose out 

of separate criminal episodes. The terms of the rule do not 

address that issue. However, the sequence in which OAR 

213-012-0020(2) comes into play in sentencing demonstrates 

that it serves to limit a consecutive sentence rather than to 

increase it.

9 Read in light of the instructions, the jury’s verdict identified the victim 

of each offense and the place where each offense occurred. It is not possible, 

however, to tell from the verdict, read in light of the instructions, whether all 

defendant’s convictions arose out of separate criminal episodes. Accordingly, the 

state cannot rely on the prior conviction exception to Apprendi to establish that 

fact. See Shepherd v. United States, 544 US 13, 25, 125 S Ct 1254, 161 L Ed 2d 

205 (2005) (plurality) (discussing the limits of the prior conviction exception to 

Apprendi).
158 State v. Cuevas

OAR 213-012-0020(2) applies only if a trial court 

first decides to impose individual sentences consecutively. 

Those individual sentences, run consecutively, add up to 

an aggregate consecutive sentence, and the only function 

that OAR 213-012-0020(2) serves is to limit the length of 

the aggregate sentence that the trial court otherwise would 

impose. Put differently, if the aggregate consecutive sentence that the trial court otherwise would impose is shorter 

than the limited consecutive sentence produced by the rule, 

the rule is inapplicable. Given its relationship to the other 

sentencing decisions that a trial court must make in imposing sentences consecutively, we conclude, as a matter of 

state law, that OAR 213-012-0020(2) serves only to limit the 

length of the aggregate consecutive sentence that the trial 

court otherwise would impose.

Apprendi applies only to factual findings that 

increase the length of a sentence beyond the prescribed 

statutory maximum. That decision does not apply to factual 

findings that limit or reduce the length of a sentence. That 

much follows from the Court’s formulation of the rule in 

Apprendi, which has not varied since the Court first stated 

it 15 years ago. The Court held in Apprendi:

“Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.”

 530 US at 490 (emphasis added); accord Alleyne v. United 

States, ___ US ___, 133 S Ct 2151, 186 L Ed 2d 314 (2013) 

(holding that factual findings that increase mandatory minimum sentences are subject to Apprendi).

Ice confirmed that Apprendi applies only to factual 

findings that increase a defendant’s sentence. Before holding that Apprendi does not apply to consecutive sentencing 

decisions, the Court noted that, “[i]n some States, sentences 

for multiple offenses are presumed to run consecutively, but 

sentencing judges may order concurrent sentences upon 

finding cause therefore.” 555 US at 163-64. The Court then 

observed that it was “undisputed” that states may take that 

approach “without transgressing the Sixth Amendment.” Id.

at 164. That is, the Court recognized that a factual finding 
Cite as 358 Or 147 (2015) 159

that reduces the length of a consecutive sentence does not 

implicate Apprendi. In this case, OAR 213-012-0020(2)(a) 

limits the length of the aggregate consecutive sentence that 

the trial court otherwise would impose. It follows that the 

factual finding that triggers the application of that rule (and 

that results in reducing the length of the aggregate consecutive sentence) is not subject to Apprendi.

Defendant’s argument that Apprendi applies to OAR 

213-012-0020(2)(a) is incorrect for a second, independent 

reason. By its terms, the holding in Apprendi did not extend 

to the question of how a trial court should aggregate multiple sentences. Rather, the holding in Apprendi addressed the 

procedures that a trial court must follow when “the penalty 

for a crime [exceeds] the prescribed statutory maximum” for 

that crime. 530 US at 490. That is, Apprendi answered the 

question what are the elements of a single offense that the 

state must prove to a jury beyond a reasonable doubt. It did 

not answer the separate question of how a trial court should 

aggregate multiple sentences when a jury has found a defendant guilty of multiple offenses.

As the Court has explained, the rule in Apprendi

arose in response to “a new trend in the legislative regulation 

of sentencing” that the Court first recognized in McMillan

v. Pennsylvania, 477 US 79, 106 S Ct 2411, 91 L Ed 2d 67 

(1986), when it “considered the significance of facts selected 

by legislatures that *** increased the range of sentences 

possible for the underlying crime.” Booker v. United States, 

543 US 220, 236, 125 S Ct 738, 160 L Ed 2d 621 (2005). That 

is, the Court adopted the rule in Apprendi to address determinate sentencing schemes that defined the maximum sentence for an offense but permitted a trial court to enhance 

the sentence for that offense if the trial court found certain 

“sentencing factors” by a preponderance of the evidence.

The rule in Apprendi provides a means for determining whether those “sentencing factors” are elements of 

a single offense that the state has to prove to a jury beyond 

a reasonable doubt. The rule does not have a broader reach. 

Indeed, the Court was careful to explain in Booker that the 

rule it announced in Apprendi was not intended to displace 

traditional sentencing practices. As the Court explained, 
160 State v. Cuevas

“it is the new circumstances [first recognized in McMillan], 

not a tradition or practice that the new circumstances have 

superseded, that have led [the Court] to the answer first 

considered in Jones [v. United States, 526 US 227, 119 S Ct 

1215, 143 L Ed 2d 311 (1999),] and developed in Apprendi 

and subsequent cases culminating with this one.” Booker, 

543 US at 237.

Following Apprendi and Booker, the Court confirmed 

Apprendi’s limited reach in Ice. As the Court explained in 

Ice, “[a]ll of [its prior] decisions involved sentencing for a 

discrete crime, not—as here—for multiple offenses different in character or committed at different times.” 555 US at 

167. Accordingly, the question posed by Ice was not whether 

Apprendi, by its own terms, applied to the decision to impose 

consecutive sentences. As Apprendi made clear and as Ice 

confirmed, it did not. Rather, the question was whether 

Apprendi should be extended to the decision whether to 

impose consecutive sentences. Id. at 168. Considering both 

“historical practice and respect for state sovereignty,” the 

Court declined to extend Apprendi beyond “the imposition of 

sentences for discrete crimes” to factual findings that served 

as the predicate for imposing sentences consecutively. Id.

That is, Ice declined to extend Apprendi to factual findings 

that were the predicate for imposing an increased aggregate 

sentence. Id.

After reviewing the historical record, the Court 

explained in Ice that “legislative reforms regarding the 

imposition of multiple sentences do not implicate the core 

concerns that prompted our decision in Apprendi.” Id. at 

169. It follows that, even if the question whether defendant’s 

offenses arose out of separate criminal episodes were the 

factual predicate for imposing a greater aggregate consecutive sentence, as it was in Ice, that factual determination 

is not subject to Apprendi.

10 Defendant errs in arguing 

otherwise.

10 It is true that the rule also assigns a sentence to each offense that is sentenced consecutively. However, the rule assigns the presumptive sentence that 

applies to the primary offense and the lowest possible presumptive sentence 

(based on the lowest possible criminal history score) for each additional offense. 

Assigning those presumptive sentences follows directly from the jury’s verdict 

and does not offend Apprendi.
Cite as 358 Or 147 (2015) 161

III. CRIMINAL HISTORY

The rule for determining a defendant’s criminal history score presents a different issue. Relying on Bucholz, the 

state argues that OAR 213-004-0006(2) applies as follows: 

When a trial court sentences multiple convictions in a single 

proceeding, OAR 213-004-0006(2) directs the court to count 

each prior conviction in determining a defendant’s criminal 

history unless that conviction and the conviction being sentenced arose out of the same criminal episode. It follows, the 

state contends, that a finding that the two convictions arose 

out of the same criminal episode reduces the number of convictions in a defendant’s criminal history and thus reduces 

the defendant’s presumptive sentence. For that reason, the 

state argues, the rule does not implicate Apprendi.

Defendant and Oregon Public Defense Services 

(OPDS), appearing as amicus, interpret the rule differently.11 They note that the state has the burden of proving a 

defendant’s prior criminal history. It follows, they contend, 

that the state must prove that a defendant’s convictions 

arose out of separate criminal episodes before it may use one 

conviction to increase a defendant’s criminal history score. 

In analyzing the parties’ arguments, we begin with the text 

of the rule. We then discuss the Court of Appeals’ and this 

court’s interpretation of that rule in Bucholz. We explain 

why we conclude, as a matter of state law, that the state 

has the better interpretation of the rule. Finally, we address 

defendant and the amicus’s burden-of-proof argument.

OAR 213-004-0006 provides in part:

“(1) The Criminal History Scale includes nine mutually exclusive categories used to classify an offender’s 

criminal history according to the extent and nature of the 

offender’s criminal history at the time the current crime or 

crimes of conviction is [sic] sentenced. ***

“(2) An offender’s criminal history is based upon the 

number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender’s criminal 

history at the time the current crime or crimes of conviction 

11 The court invited OPDS to file an amicus brief, and we appreciate the 

thoughtful brief that OPDS filed.
162 State v. Cuevas

are sentenced. For crimes committed on or after November 1,

1989 a conviction is considered to have occurred upon the 

pronouncement of sentence in open court.”12

According to that rule, the criminal history scale “classif[ies] 

an offender’s criminal history according to the extent and 

nature of the offender’s criminal history at the time the current crime or crimes of conviction is [sic] sentenced.” OAR 

213-004-0006(1).

That text can be interpreted in one of two ways. 

In measuring a defendant’s criminal history “at the time 

the current crime or crimes of conviction [are] sentenced,” 

the rule could include, as part of a defendant’s criminal 

history, only those convictions that preceded the hearing 

at which a defendant’s “current crime or crimes” are sentenced. Alternatively, when a trial court imposes multiple 

sentences in a single proceeding, the rule could include in a 

defendant’s criminal history each conviction that had been 

sentenced “at the time the current crime *** is sentenced.” 

The latter interpretation is consistent with the sentence in 

subsection (2) that provides that, for crimes committed on 

or after November 1, 1989, “a conviction is considered to 

have occurred upon the pronouncement of sentence in open 

court”—a proposition that would be largely unnecessary if 

the only convictions that counted were offenses that had 

been sentenced in a prior judicial proceeding.13

Initially, the Court of Appeals and this court divided 

over how an earlier version of the rule should be interpreted. 

In interpreting that version of that rule, the Court of Appeals 

held that only convictions sentenced in a prior sentencing 

12 As noted, the indictment alleged that defendant committed the charged 

offenses between January 1, 1995, and 2002, and the jury’s verdict does not 

reflect when it found that the charged offenses occurred. We quote the current 

version of OAR 213-004-0006, which became effective March 8, 1996. Defendant 

does not argue that any difference between the current and former versions is 

material.

13 The version of the rule at issue in Bucholz did not contain a sentence 

stating that a conviction “is considered to have occurred on pronouncement of 

sentence in open court,” as it does now. See 317 Or at 312. However, that sentence 

was part of the commentary to the rule, as supplemented, when the court issued 

its decision in Bucholz, and it became part of the rule itself in 1993 before defendant committed the acts charged in this case. See State v. Allen, 151 Or App 281, 

289, 948 P2d 745 (1997) (discussing history of the rule).
Cite as 358 Or 147 (2015) 163

proceeding could be included in a defendant’s criminal history score. State v. Seals, 113 Or App 700, 704, 833 P2d 1344 

(1992); State v. Bucholz, 113 Or App 705, 707, 834 P2d 456 

(1992). That was true, under the Court of Appeals decisions 

in Seals and Bucholz, regardless of whether the offenses being 

sentenced arose out of the same or separate criminal episodes. See Seals, 113 Or App at 702 (same criminal episode); 

Bucholz, 113 Or App at 707 (separate criminal episodes).

This court allowed review in Bucholz and reversed 

the Court of Appeals decision. Bucholz, 317 Or at 321. This 

court explained that the text of the rule “permits consideration of any previous conviction occurring before ‘the time 

the current crime ** * is sentenced.’” Id. at 314 (quoting the 

text of the rule; ellipses in original). The court concluded 

that, read literally, the text of the rule contemplated that a 

trial court sentencing multiple convictions in a single proceeding would include the first conviction that it sentenced 

in calculating a defendant’s criminal history score to determine the presumptive sentence for the second conviction. Id.

Although the defendant in Bucholz argued that the 

legislative history of the rule and its commentary supported 

the Court of Appeals’ interpretation, this court reached a 

different conclusion. Id. at 315-16.14 It noted that the defendant relied in large part on the legislative history of a bill 

that had failed to pass. Id. at 316. The court explained that, 

even if it were appropriate to consider that legislative history, the most that could be drawn from it was that “[t]he 

legislators present distinguished between a single criminal 

episode, which they thought was not prior criminal history 

for use in sentencing on some other conviction from the same 

episode, and crimes from more than one episode.” Id. at 317. 

The court read the commentary to the rule the same way. 

Id. at 318. It explained that “the wording of the commentary [discussing limitations on using convictions sentenced 

in the same sentencing proceeding] makes the most sense if 

it is taken to be addressing only multiple convictions from a 

single criminal episode.” Id.

14 Because the legislature had amended OAR 213-004-0006(2), legislative history existed for the rule in addition to the commentary written by the 

Criminal Justice Commission.
164 State v. Cuevas

This court accordingly held that, when a court 

sentences a defendant for multiple convictions in a single 

proceeding, each conviction on which the court imposes a 

sentence counts as part of the defendant’s criminal history 

in determining the presumptive sentence for the next conviction. The court held out the possibility, as it had recognized in Miller, that the rule would not apply if the offenses 

being sentenced arose out of a single criminal episode. See 

Bucholz, 317 Or at 317-18 (discussing legislative history). 

However, the court did not decide that question because no 

one disputed that the offenses in Bucholz arose out of separate criminal episodes. See Miller, 317 Or at 300 (describing 

Bucholz as “a case involving two separate indictments for 

two separate series of criminal acts”).

In State v. Plourd, 125 Or App 238, 864 P2d 1367 

(1993), the Court of Appeals concluded from the discussion 

of the legislative history in Bucholz that a prior conviction 

should not be counted as part of a defendant’s criminal 

history when that conviction and the conviction being sentenced arose out of the same criminal episode. This court 

later confirmed Plourd’s holding. See State v. Martin, 320 Or 

448, 450, 452, 887 P2d 782 (1994) (explaining that, because 

two offenses sentenced in a single criminal proceeding had 

not arisen out of a single criminal episode, the trial court 

properly had counted the first offense as part of the defendant’s criminal history in sentencing the second offense).

Bucholz did not decide the question that the parties 

raise here; that is, Bucholz did not decide whether the departure from the text of the rule for convictions arising out of 

the same criminal episode was a prerequisite to counting 

a prior conviction as part of a defendant’s criminal history 

or an exception from doing so. Faced with that question, we 

conclude that the latter interpretation of the rule is the better one. As noted, the rule provides: “An offender’s criminal 

history is based upon the number of adult felony and Class A 

misdemeanor convictions and juvenile adjudications in the 

offender’s criminal history at the time the current crime or 

crimes of conviction are sentenced.” OAR 213-004-0006(2). 

By its terms, the rule directs courts to base an offender’s 

criminal history on the number of convictions at the time 

of sentencing, and it provides that, for crimes committed 
Cite as 358 Or 147 (2015) 165

after November 1, 1989, “a conviction is considered to have 

occurred upon pronouncement of sentence in open court.”

Nothing in the text of that rule recognizes an exception for convictions arising out of the same criminal episode. 

That departure from the text of the rule derives from the 

rule’s context and legislative history, which this court discussed in Miller and Bucholz. Given the textual directive 

and the departure from that directive, we conclude that the 

departure is best understood as an exception to the textual 

requirement that every previously sentenced conviction 

count in determining a defendant’s criminal history. See 

ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 

133, 241 P3d 710 (2010) (relying on the unqualified text of 

a coverage provision as one reason for holding that a judicially imposed limitation should viewed as an exclusion 

from coverage).

Defendant and the amicus advance primarily one 

contrary argument. Relying on ORS 137.079(5)(c) and 

OAR 213-004-0013(2) and (3), they note that the state has 

the burden of proving a defendant’s criminal history. They 

infer from that fact that the state must prove that a prior 

conviction arose out a separate criminal episode from the 

conviction currently being sentenced before the prior conviction can be counted as part of a defendant’s criminal 

history. In our view, defendant and the amicus place more 

weight on that statutory allocation of proof than it reasonably can bear. Before addressing defendant’s argument, it 

is helpful to set out what the statute and its accompanying 

rule say.

ORS 137.077 provides for a presentencing report to 

assist trial courts in determining the appropriate sentence. 

Among other things, a presentence report must contain “[a] 

listing of all prior adult felony and Class A misdemeanor 

convictions and all prior juvenile adjudications.” OAR 213-

013-0010(2).15 ORS 137.079(5) provides that “the defendant’s criminal history as set forth in the presentence report 

shall satisfy the state’s burden of proof as to the defendant’s 

15 ORS 137.077 does not specify what a presentence report must contain. 

That information is found in the applicable rules.
166 State v. Cuevas

criminal history,” unless the defendant notifies the district 

attorney before sentencing “of any error in the criminal history as set forth in the presentence report.” ORS 137.079(5)(b),

(c). If the defendant notifies the state of a perceived error, 

then the state has the burden of proving “any disputed part 

of the defendant’s criminal history.” ORS 137.079(5)(c).16

Simply as a matter of the text of ORS 137.079(5), 

it is difficult to see how that statute supports defendant’s 

argument. ORS 137.079(5) places the burden on the state 

to prove the existence vel non of the convictions that are 

set forth in the presentence report. By its terms, the statute does not place a burden on the state to prove the circumstances surrounding those convictions. Yet, that is what 

defendant’s argument presupposes. His argument assumes 

that the state bears the burden of proving whether the prior 

conviction arose out of separate criminal episodes when 

the fact that the statute says the state must prove is more 

limited.

However, even if ORS 137.079(5) placed the burden on the state to prove the circumstances surrounding a 

prior conviction, the statute still provides greater support 

for the state’s interpretation of OAR 213-004-0006(2) than 

defendant’s. ORS 137.079(5) provides that a defendant’s 

criminal history set out in the presentencing report satisfies 

the state’s burden of proof unless the defendant notifies the 

state otherwise. Put in the context of this rule, that statute 

provides that, unless a defendant notifies the state that he 

or she believes that the conviction being sentenced arose out 

of the same criminal episode as a previously sentenced conviction, then the trial court may count the previously sentenced conviction as part of the defendant’s criminal history. 

If a defendant so notifies the state, then the state has the 

burden of proving that the conviction is not excluded from 

being counted by virtue of arising out of the same criminal episode. ORS 137.079(5), if applicable, is consistent with 

the interpretation of OAR 213-004-0006(2) that the state 

advances.

16 The rule is the same as the statute, with one exception. Instead of referring 

to a presentence report, the rule refers to a “summary of the offender’s criminal 

history prepared for the court by the state.” OAR 213-004-0013(2), (3).
Cite as 358 Or 147 (2015) 167

Ultimately, the difficulty with defendant’s argument is that it conflates two separate issues. The question of 

which party bears the burden of proof is separate from the 

question of what that party must prove, as this court recognized in ZRZ Realty. See 349 Or at 136-38. One of the issues 

in ZRZ was who bears the burden of proof when the parties 

in a declaratory judgment action are transposed. For example, when the party that ordinarily would be the defendant 

in a breach of contract claim brings a declaratory judgment 

action to determine its rights under the contract, the courts 

have divided over which party in the declaratory judgment 

action bears the burden of proof. See 349 Or at 136-37. Some 

courts hold that the plaintiff in the declaratory judgment 

action has the burden to prove its affirmative allegations, 

even though the plaintiff in the declaratory judgment action 

ordinarily would be the defendant in a breach of contract 

claim and would have no burden of proof. See id. (discussing 

cases); First National Bank v. Malady, 242 Or 353, 358, 408 

P2d 724 (1966) (holding that that rule ordinarily applies in 

Oregon).17 Other courts hold that the party that ordinarily 

would have the burden of proof retains that burden, even 

though that party is now the defendant in the declaratory 

judgment action. See ZRZ Realty, 349 Or at 136-37 (discussing cases).

As those different approaches illustrate, the question of how the burden of proof is allocated is separate from 

the question of what the party with the burden of proof must 

establish. That is, the burden of proof is a substantively 

neutral rule that sheds little light on the terms of the legal 

rule that the party with the burden of proof must prove or 

disprove. In this case, the sentencing guidelines rule provides that each prior conviction will be counted as part of a 

defendant’s criminal history subject to an exception for convictions that arose out of the same criminal episode. That 

exception remains an exception regardless of which party 

has the burden of proving or disproving it. The statutory 

allocation of the burden of proof in ORS 137.079(5) does not 

17 Oregon followed this rule in Malady, 242 Or at 358, although the court 

noted in ZRZ that courts since Malady have considered additional factors in 

deciding how to allocate the burden of proof. ZRZ Realty, 349 Or at 137 n 18.
168 State v. Cuevas

persuade us to read the criminal history sentencing rule 

differently than we have.

Given our interpretation of OAR 213-004-0006(2), 

we conclude that that rule does not implicate Apprendi. As 

a matter of state law, a finding that a previously sentenced 

conviction and the conviction currently being sentenced 

arose out of a single criminal episode does not increase a 

defendant’s criminal history. Rather, it is a factual finding 

that reduces a defendant’s criminal history and the resulting sentence by not counting a conviction that otherwise 

would be included in the defendant’s criminal history. As 

explained above, Apprendi does not apply to factual findings 

that reduce a defendant’s sentence.

We accordingly hold that trial courts may apply 

OAR 213-012-0020(2) and OAR 213-004-0006(2) without 

a jury determination that multiple offenses sentenced in a 

single judicial proceeding arose out of separate criminal episodes, even when that fact is not apparent from the jury’s 

verdict. We affirm the Court of Appeals decision and the 

trial court’s judgment on that ground.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.