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 convic-
tions 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 dis-
cretion 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 determina-
tion 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 deter-
mination whether the convictions arose out of the same or separate criminal epi-
sodes 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 fed-
eral law does not require that the factual determination whether a prior convic-
tion 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 convic-
tions at the time of sentencing in calculating the defendant’s
criminal history. OAR 213-004-0006(2). The other rule lim-
its 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 sub-
mitted 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, sod-
omy, 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 consec-
utively. Oregon has adopted statutes and sentencing guide-
lines 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 his-
tory.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 pro-
vide 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 defen-
dant’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 consecu-
tive sentences.
	        That is not the end of the analysis, however. If a trial
court decides to sentence convictions consecutively, the sen-
tencing guidelines limit the length of the aggregate consecu-
tive 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) (inter-
preting an earlier version of that rule). As discussed in
greater detail below, if the convictions that the court sen-
tenced consecutively arose out of a single criminal episode,
the sentencing guidelines limit the length of the aggregate
consecutive sentence by assigning the lowest possible crim-
inal 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 defen-
dant’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 sex-
ual 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 first con-
viction, it counted that conviction as part of his criminal
history in determining the presumptive sentence for defen-
dant’s second conviction. Including the first conviction as
part of defendant’s criminal history increased his crimi-
nal 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 con-
victions 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 guide-
lines place on the length of the aggregate consecutive sen-
tence 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 guide-
lines 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 “sub-
stantial 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 addi-
tional 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 con-
victions 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 unneces-
sary 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 con-
tends that this court erred in limiting the sentencing guide-
lines 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 fed-
eral 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 guide-
lines 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 pro-
ceeding arose out of a single criminal episode. Id. However,
the sentencing guidelines did not place that limit on sen-
tences 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 epi-
sodes 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 sentenc-
ing guidelines rule that limits the aggregate length of con-
secutive sentences to apply only to offenses arising out of a
single criminal episode. Miller, 317 Or at 306. The court rea-
soned 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 epi-
sode 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 lib-
eral 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 cur-
rent crime or crimes of conviction is sentenced.” Id. (quot-
ing 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 his-
tory 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 sen-
tencing laws. During that time, neither the legislature nor
the Oregon Criminal Justice Commission has amended the
sentencing guidelines rules to restore what defendant con-
tends was the true meaning of those rules. Rather, the sen-
tencing 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 guide-
lines 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 inter-
preted 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 constitu-
tional principles and then discuss the two sentencing guide-
line 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 maxi-
mum’ 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 determin-
ing 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 consec-
utively, 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 com-
prise 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 consecu-
    tively, 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 pre-
    sumptive 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 sentenc-
ing 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 con-
secutive sentence cannot exceed the sum of the presump-
tive 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 determin-
ing 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 consecu-
tive sentence turns on whether the convictions that make
up the sentence arose out of the same or separate crimi-
nal 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 defen-
dant’s convictions arose out of separate criminal episodes.
Defendant reasons that the question whether his convic-
tions 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 defen-
dant’s sentence above the statutory maximum).9
	        We conclude, however, that defendant’s federal con-
stitutional argument fails for two reasons. First, as a matter
of state law, the factual finding on which defendant’s argu-
ment 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 epi-
sodes, 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 sen-
tence 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 impos-
ing 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 min-
imum sentences are subject to Apprendi).
	       Ice confirmed that Apprendi applies only to factual
findings that increase a defendant’s sentence. Before hold-
ing 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 consecu-
tive 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 multi-
ple 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 defen-
dant 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 deter-
minate sentencing schemes that defined the maximum sen-
tence 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 deter-
mining 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 differ-
ent 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 consec-
utive 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 sen-
tenced 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 his-
tory 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 sen-
tenced 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 con-
victions 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 defen-
dant’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 convic-
tion to increase a defendant’s criminal history score. In ana-
lyzing 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 bet-
ter 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 mutu-
    ally 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 convic-
    tions 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 cur-
rent 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 sen-
tenced. 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 stat-
ing that a conviction “is considered to have occurred on pronouncement of sen-
tence 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 defen-
dant 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 his-
tory 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 epi-
sodes. 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 consider-
ation of any previous conviction occurring before ‘the time
the current crime * * * is sentenced.’ ” Id. at 314 (quoting the
text of the rule; ellipsis in original). The court concluded
that, read literally, the text of the rule contemplated that a
trial court sentencing multiple convictions in a single pro-
ceeding would include the first conviction that it sentenced
in calculating a defendant’s criminal history score to deter-
mine 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 defen-
dant 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 his-
tory, 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 commen-
tary [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), legisla-
tive 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 con-
viction. The court held out the possibility, as it had recog-
nized 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 sepa-
rate 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 sen-
tenced 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 defen-
dant’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 depar-
ture 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 bet-
ter 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 excep-
tion 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 dis-
cussed 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 be 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 con-
viction 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 reason-
ably 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 criminal
	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

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 stat-
ute does not place a burden on the state to prove the cir-
cumstances 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 bur-
den 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 con-
viction, then the trial court may count the previously sen-
tenced 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 crimi-
nal 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 argu-
ment 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 recog-
nized 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 exam-
ple, 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 (discuss-
ing cases).
	        As those different approaches illustrate, the ques-
tion 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 pro-
vides that each prior conviction will be counted as part of a
defendant’s criminal history subject to an exception for con-
victions 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 result-
ing 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 epi-
sodes, 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 judg-
ment of the circuit court are affirmed.
	       WALTERS, J., dissenting.
	        I respectfully dissent. As the majority acknowl-
edges, this case requires this court to interpret the rule for
determining a defendant’s criminal history score, OAR 213-
004-0006(2). I would interpret that rule to permit a sen-
tencing court to 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 sen-
tenced. I would reverse defendant’s sentence and remand to
the trial court for resentencing.
	        The majority interprets OAR 213-004-0006(2) as
providing a “textual directive” that a sentencing court must
base an offender’s criminal history score on the number of
convictions that exist at the time each crime is sentenced.
358 Or at 165. The majority then recognizes a “departure”
from that rule when the offenses being sentenced arise out
of a single criminal episode. Id. The majority finds the basis
Cite as 358 Or 147 (2015)	169

for that departure not in the rule itself or in a case decided
by this court, but in the fact that the Court of Appeals recog-
nized such a “departure” in State v. Plourd, 125 Or App 238,
864 P2d 1367 (1993). The majority then decides, as a matter
of first impression, that that departure constitutes an excep-
tion to the textual requirement rather than a prerequisite
to its application. 358 Or at 164. It follows, the majority
concludes, that the rule does not implicate Apprendi v. New
Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).
	        I would start, as the majority does, with the text of
the rule, which provides:
   	 “An offender’s criminal history is based upon the num-
   ber of adult felony and Class A misdemeanor convictions
   and juvenile adjudications in the offender’s criminal his-
   tory at the time the current crime or crimes of conviction
   are sentenced.”
OAR 213-004-0006(2). In cases where a defendant is sen-
tenced for multiple crimes of conviction, that rule raises an
interpretative question—namely, whether the phrase “at
the time the current * * * crimes of conviction are sentenced”
refers to the current sentencing proceeding itself or, instead,
refers to individual sentences handed down for individual
offenses during the same sentencing proceeding.
	        That question is answered by the rule’s reference to
the plural “crimes of conviction,” id. (emphasis added), which
the majority fails to address. The rule directs courts to base
an offender’s criminal history on the number of convictions
at the time that “the current crime or crimes of conviction
are sentenced.” OAR 213-004-0006(2). When a court is sen-
tencing an offender for multiple crimes (plural), the rule
directs the court to count only criminal history that existed
prior to the time that the crimes (plural) are sentenced. In
other words, the “current * * * crimes of conviction” are not
“sentenced,” id., until each current crime of conviction has
been sentenced.
	       That understanding accords with the rule’s com-
mentary and legislative history as recounted in State v.
Seals, 113 Or App 700, 833 P2d 1344 (1992). In Seals, the
court laid out the commentary for former OAR 253-04-
006(2) (1993), renumbered as OAR 213-004-0006(2) (1996),
170	                                              State v. Cuevas

and then explained that it accurately reflected the legisla-
ture’s intent. Id. at 702-04. The commentary, as quoted by
the court, provides:
   	 “ ‘This section also makes clear that a criminal history,
   for purposes of sentencing under these rules, is determined
   as of the time of sentencing. This provision ensures that
   the severity of the sentence is commensurate with offend-
   er’s characteristics at the time he or she is sentenced.
   	 “ ‘The Guidelines Board had originally adopted a rule
   which would only count prior convictions entered at the
   time the current crime of conviction was committed. This
   rule was intended to ensure that court proceedings not be
   manipulated by either the offender or the state to alter
   the offender’s criminal history classification. The legis-
   lature, however, directed the Guidelines Board to amend
   this rule to provide that the offender’s criminal history is
   to include all prior convictions or juvenile adjudications
   entered against the offender “at the time the current crime
   or crimes of conviction is sentenced.” Section 98, Chapter
   790, Oregon Laws 1989.’
   	 “ ‘This reference to “current crime or crimes of conviction”
   was intended to prohibit the consideration of convictions
   arising from the current proceeding in classification of the
   offender’s criminal history. This prohibition applies even if
   the state can establish the chronological order in which the
   offenses were committed.’
   	 “ ‘In short, the legislative intent was to capture as accu-
   rately as possible the offender’s criminal record at the time
   of sentencing without encouraging the manipulation of
   court proceedings as a means to affect the offender’s crim-
   inal history classification.’ Oregon Sentencing Guidelines
   Implementation Manual 50 (1989).”
Id. at 702-03 (emphasis in Seals). The legislature’s intent, as
described by the court, is consistent:
   	 “Although the commentary is not authoritative, here
   it accurately reflects the legislative intent. The language
   of OAR 253-04-006(2) was adopted from an amendment
   offered by Representative Clark. The discussion was
   directed to the impact of the rule on projected prison pop-
   ulations. Criminal Justice Council staff member Ashford
   explained the effect of the proposed change in OAR
   253-04-006(2):
Cite as 358 Or 147 (2015)	171

      	 “ ‘By counting criminal history from date of sen-
      tencing, offenders who are being sentenced for multiple
      offenses could have counted in their criminal history
      the multiple offenses—the current multiple offenses,
      because they have been theoretically convicted of them
      and that’s what’s driving those numbers up. If the
      intention of the committee is only to count as prior con-
      victions, convictions unrelated to the current, then the
      impact figures would be very low.’
   	 “The concern was to clarify that the amendment was
   not intended to result in increased prison population. The
   legislators agreed with the explanation provided by Circuit
   Court Judge Ellis, an associate member of the Criminal
   Justice Council, who testified:
      	 “ ‘The defendant who’s before you for sentencing on
      four different felonies at the same time—three of those
      are not to me prior convictions. They’re present convic-
      tions. So you wouldn’t count [them] as part of prior crim-
      inal history, no matter what rule you use for figuring
      prior criminal history.’ ”
Id. at 703-04 (emphasis in Seals) (footnotes omitted).
	        Based on that understanding of the commentary
and legislative history, the Court of Appeals concluded that
former OAR 253-04-006(2) (1993), renumbered as OAR 213-
004-0006(2) (1996), comported “with the principle under-
lying the guidelines to punish offenders within the limits
of correctional resources,” and held that the only criminal
history a sentencing court could count was the criminal his-
tory in place before the current crime or crimes of conviction
were sentenced. Id. at 704.
	        The Court of Appeals reached the same conclusion
in State v. Bucholz, 113 Or App 705, 707, 834 P2d 456 (1992),
but the Supreme Court reversed, State v. Bucholz, 317 Or
309, 321, 855 P2d 1100 (1993). The Supreme Court read the
text of the rule to permit a court that is sentencing multiple
convictions in the same proceeding to include the first con-
viction that it sentences in calculating a defendant’s crimi-
nal history score for the second conviction. Id. The Supreme
Court discounted the commentary and legislative history
described above by characterizing both as “distinguish[ing]
between a single criminal episode, which they thought was
172	                                              State v. Cuevas

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.
	        This court was wrong in Bucholz. Its characteri-
zation of the commentary and legislative history does not
fairly represent those sources, which spoke directly to the
issue presented in that case. Further, the court ignored the
rule’s reference to “crimes” (plural) of conviction. This case
requires that we reconsider Bucholz and correct that error.
	        Instead of doing so, however, the majority rein-
terprets OAR 213-004-0006(2) and relies primarily on
a sentence that was added to the rule after the Supreme
Court decided Bucholz: “For crimes committed on or after
November 1, 1989 a conviction is considered to have occurred
upon the pronouncement of sentence in open court.” OAR
213-004-0006(2). The majority apparently concludes that
that sentence makes the Supreme Court’s interpretation in
Bucholz correct. I disagree and, again, I can do no better
than quote the Court of Appeals’ reasoning—this time on
the effect of that amendment:
   	 “The state argues that the additional language taken
   from the commentary, stating that a conviction occurs upon
   the pronouncement of the sentence in open court, renders
   the Seals, Bucholz, Miller and Plourd decisions ‘irrelevant.’
   According to the state, the ‘plain language’ of the rule
   requires courts to consider any prior conviction to be part
   of an offender’s criminal history.
   	 “The difficulties with the state’s argument are twofold.
   First, it fails to explain, beyond the mere assertion of the
   fact, why the ‘plain language’ requires the result it asserts.
   Merely because a conviction occurs at the time sentencing
   is pronounced in open court does not mean that it must
   become, at that moment, part of the offender’s criminal his-
   tory. The state’s construction, in fact, cannot be reconciled
   with the language in the rule that defines ‘criminal history’
   in terms of the record of convictions ‘at the time the current
   crime or crimes of conviction are sentenced.’ If, upon sen-
   tencing, each crime becomes part of the criminal history,
   as the state suggests, then the reference in the rule to prior
   convictions at the time of the crimes of conviction becomes
   mere surplusage. We are instructed not to give a construc-
   tion to enactments that renders portions of it meaningless,
Cite as 358 Or 147 (2015)	173

   if possible. See ORS 174.010 (instructing courts ‘not to omit
   what has been inserted’ when construing statutes).
   	 “The state’s plain language argument is especially dif-
   ficult to accept in the light of the fact that the amendment
   regarding the timing of a ‘conviction’ within the meaning of
   the rule merely incorporated into the text of the rule what
   previously had been expressed in the commentary. In other
   words, the rule now expressly states what it always has
   been understood to mean. In that regard, it bears emphasis
   that the commentary from which the 1993 amendment was
   taken explained both that the ‘current crime or crimes of
   conviction’ cannot be considered part of an offender’s crimi-
   nal history and that convictions occur upon pronouncement
   of sentence in open court.
   	 “Second, and perhaps more importantly, the legislature
   left materially unchanged the language in the rule refer-
   ring to ‘criminal history at the time of the current crime
   or crimes are sentenced.’ That language, as we have noted,
   was intended to exclude consideration of crimes committed
   in the same criminal episode for which a defendant cur-
   rently is being sentenced.”
State v. Allen, 151 Or App 281, 290-91, 948 P2d 745 (1997)
(emphases in original) (footnotes omitted).
	        I agree. When a trial court is sentencing a defen-
dant for multiple crimes, OAR 213-004-0006(2) does not
provide a “textual directive” to trial courts to count crimes
that are sentenced in the current sentencing proceeding as
part of a defendant’s criminal history. It does the opposite:
It directs trial courts to count only those convictions that
preceded the hearing at which a defendant’s “current crime
or crimes” are sentenced.
	       And even if the majority’s interpretation of the rule
were correct, the majority would not be correct to recognize
a “departure” from that rule based on the “departure” recog-
nized by the Court of Appeals in Plourd. If trial courts are
permitted to depart from the “unqualified” directive that
the majority identifies, it is the rule that must permit that
departure. Plourd drew on the Supreme Court’s “discussion
in Bucholz” for its conclusion that the defendant in that case
was “correct that his convictions, which arose within one
general criminal transaction, could not be used to enhance
174	                                          State v. Cuevas

his criminal history score.” 125 Or App at 242 (internal quo-
tation marks omitted). In this case, the majority describes
the “discussion” in Bucholz as doing no more than holding
out the “possibility * * * that the rule might not apply if the
offenses being sentenced arose out of a single criminal epi-
sode.” 358 Or at 164.
	        I do not see how we can determine whether a
“departure” that we have not ourselves recognized consti-
tutes a prerequisite to counting a prior conviction as part of
a defendant’s criminal history or an exception from doing so
before we decide whether to recognize that “departure.” And
to decide whether to recognize such a departure takes us
back to the text of the rule and its commentary and legisla-
tive history. In conducting that analysis, I would adopt the
reasoning of the Court of Appeals in Seals and Allen.
	         I do not understand why the majority, feeling com-
pelled to dip, does not plunge. If, as it appears, the majority
is not willing to stand on Bucholz for its interpretation of
OAR 213-004-0006(2), and is willing to reconsider its text,
then the majority should give that text its full due and also
consider its commentary and legislative history. If it were to
do so, I believe that this court would decide, as did the Court
of Appeals, that a sentencing court may count as a 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.
	        I also disagree with the majority’s further reasoning
that the “departure” recognized in Plourd is best understood
as an exception to the textual requirement that it identifies,
and that such an exception mitigates the defendant’s sen-
tence and does not implicate Apprendi.
	        As to the first point, even if OAR 213-004-0006(2)
is intended to permit a court to count convictions sentenced
in a current proceeding in calculating a defendant’s crimi-
nal history, the rule should not be understood as creating
(1) a general rule that all prior convictions be counted and
(2) an exception to that rule for prior convictions arising out
of the same criminal episode. Instead, the rule is best under-
stood as presenting the trial court with one binary question
Cite as 358 Or 147 (2015)	175

of fact: whether the prior conviction arose from a separate
criminal episode or from the same criminal episode.
	        As the majority acknowledges, the court reasoned
in Bucholz 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 criminal episode, and crimes
from more than one criminal episode.’ ” 358 Or at 163 (quot-
ing Bucholz, 317 Or at 317) (emphasis added). Thus, even if
the rule is intended to permit the calculation that the major-
ity says it does, the rule is intended to calculate the crimi-
nal history score by distinguishing between the same crim-
inal episode and separate criminal episodes. A “separate
criminal episode” finding makes the criminal history rule
applicable, and a “same criminal episode” finding makes the
criminal history rule inapplicable. As a result, the rule sets
up a decision tree with a “distinction,” and not a general rule
with a “departure.”
	        The trial court’s finding in this case was consis-
tent with that structure. The trial court did not recognize
a general rule and then find an exception. Instead, the trial
court made a finding that permitted it to count defendant’s
convictions in calculating his criminal history—that defen-
dant’s convictions were for offenses that arose out of sep-
arate criminal episodes. Had the trial court instead found
that defendant’s convictions were for offenses that arose out
of the same criminal episode, the trial court would not have
been permitted to count defendant’s previously sentenced
convictions in calculating his criminal history.
	        Second, I doubt that the applicability of Apprendi
depends on the fine line between whether the rule creates
a decision tree with a distinction or a general rule with a
“departure.” The difference may be recognized in constru-
ing insurance policies, as the majority notes, but I would
not give it constitutional significance, particularly when the
legislative history does not demonstrate that the legislature
was aware of it.
	      Rather, I would focus, as the Court did in Apprendi,
on whether the defendant received a sentence beyond the
176	                                         State v. Cuevas

prescribed statutory maximum for the offense. Apprendi,
530 US at 490. Under Apprendi, the prescribed statutory
maximum is the maximum sentence that the trial court can
impose based on only the facts alleged in the indictment and
either reflected in the jury verdict or admitted by the defen-
dant. Id. (facts that increase the penalty beyond “statutory
maximum” must be found by jury and proven beyond a rea-
sonable doubt); see also Blakely v. Washington, 542 US 296,
303, 125 S Ct 2531, 159 L Ed 2d 403 (2004) (“[T]he ‘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.” (Emphasis
omitted.)); State v. Dilts, 337 Or 645, 652, 103 P3d 95 (2004)
(“statutory maximum” is the presumptive sentence based on
facts alleged in indictment and admitted by defendant in
his guilty plea). A defendant’s criminal history is generally
not alleged in an indictment and therefore is generally not
admitted by the defendant in a guilty plea or reflected in
a jury verdict. Thus, as the Court recognized in Apprendi,
a defendant’s criminal history is a fact that “increases the
penalty for a crime beyond the prescribed statutory maxi-
mum.” Apprendi, 530 US at 490.
	        Nevertheless, in Apprendi, the Court recognized
what it characterized as a “narrow exception” to its rule
that facts that increase a defendant’s sentence beyond the
“statutory maximum” must be found by a jury. Id. (emphasis
added). The Court explained that, in keeping with its prior
decision in Almendarez-Torres v. United States, 523 US 224,
118 S Ct 1219, 140 L Ed 2d 350 (1998), a jury need not deter-
mine any “fact of prior conviction” in determining the length
of a defendant’s sentence. Apprendi, 530 US at 488 (internal
quotation marks omitted). The Court reasoned that the pro-
cedural safeguards attached to a fact of prior conviction, and
the fact that the defendant did not challenge the accuracy of
that fact, “mitigated the due process and Sixth Amendment
concerns otherwise implicated in allowing a judge to deter-
mine a ‘fact’ increasing punishment beyond the maximum of
the statutory range.” Id. (emphasis added). Not only did the
Court in Apprendi discuss a defendant’s prior conviction as a
fact that increases a defendant’s punishment beyond the stat-
utory maximum, but there would be no need for an exception
Cite as 358 Or 147 (2015)	177

to the Apprendi rule if a defendant’s criminal history could
be considered to be mitigating rather than enhancing.
	         My Apprendi analysis may be mistaken, and there
may be reasons that I have not discussed that make Apprendi
inapplicable here. I need not dwell on those federal issues for
purpose of this dissent, however. I write not to speak defin-
itively about federal law, but because, in reaching the fed-
eral issues presented in this case, the majority is required to
construe state law. In my view, the majority’s interpretation
of state law is flawed. I respectfully dissent.
	        Landau, J., and Brewer, J., join in this dissenting
opinion.
