3 Things Every Defense Lawyer Should Know About Upward Departures (plus 1 argument you should be prepared to make)
by: Ryan • July 12, 2013 • no comments
The first three things I mention below reflect what the law is. The fourth, well, you could say it's what I want to the law to be, or you could say it's what the law is but the Court of Appeals hasn't itself said so yet. But the ambiguity around #4 can work to your advantage.
(1) The state has a very strict deadline to get you written notice of upward departure factors. 60 days after arraignment on an indictment (note, arraignment, not arrest) or 15 days before trial, whichever comes first. Prosecutors have gotten better at meeting this deadline, but they still screw it up. They are especially likely to screw it up if they don't realize a particular enhancement fact is an enhancement fact (e.g., juvenile adjudications).
(2) Offense-specific factors are presumptively supposed to be tried during the culpability phase, offender-specific during the sentencing phase. A defendant can ask to bump the offense-specific factors to the sentencing phase, but it must be the defendant's request, and it requires certain findings by the judge. Imagine, however, if the defendant never makes that request. And further, imagine there is an enhancement fact that looks like it's offender-specific, but it's really offense-specific. The prosecutor waits until the sentencing phase to submit that enhancement, and the defendant says, "nope, too late. It's offense-specific and you needed to try it during the culpability phase." Is this a crazy hypothetical? See below.
(3) There are no hung juries on enhancement facts. If the jury is 9-3 in finding the enhancement fact, that's a finding for the defendant. If the original jury was 10-2 on guilt, those 10 jurors must be unanimous in finding the enhancement fact or it's a finding for the defendant.
Okay, those 3 things every defense lawyer should know automatically without looking up the statutes. But what's the as-yet-untried argument you should be prepared to make?
It's this: "persistent involvement" is not offender-specific. It's offense-specific, at least some of the time.
Jess Barton made this argument at Library of Defense awhile ago. But because of a recent case from the COA, the argument has gotten stronger, at least in some circumstances. His argument noted that the enumerated factors wasn't just "persistent involvement." It's persistent involvement in similar offenses unrelated to the current crime. OAR 213-008-0002(1)(b)(D). Whether past crimes are "similar" to the current offense requires looking at the facts -- not just the charge -- of the current offense.
OAR 253-08-002(1)(b)(D) does not define "similar offenses." The commentary says that the "similar offenses" aggravating factor need not involve the "same" offense. The determination of what is similar requires consideration of the nature of the offenses:
"EXAMPLE: If an offender has an extensive record of fraud-related convictions and he or she has been convicted for a similar fraud scheme, the sentencing judge may impose an aggravated departure sentence. Such a departure would be most appropriate if the offender's criminal conduct demonstrated a significant level of sophistication and his or her criminal history strongly suggests that the offender will continue to engage in such illegal enterprises.
"EXAMPLE: A departure sentence might also be appropriate under this paragraph for an offender convicted of ORS 163.125 Manslaughter II arising from a domestic dispute if that offender also has an extensive record of domestic violence. The prior history of domestic violence does not need to be represented in the offender's criminal history record to be cited as an aggravating factor."
Commentary, Oregon Sentencing Guidelines Implementation Manual 130 (1989).
The first conclusion that can be safely drawn from the second example is that, for example, “assault on a public safety officer” conviction would not constitute a “similar offense” to an assault arising out of a DUII accident. What makes the assault and manslaughter “similar” in the example above is that both arose from domestic disputes. Therefore, even in a situation where the crimes both involve “injury” inflicted on another person (and the injury in one case is “death”), the crimes are only similar if they arise out of similar circumstances (e.g., domestic violence). That is not the case with the prior conviction for assault of a public safety officer and DUII-assault.
So, based just on the OARs, because the facts of the current offense are relevant to finding persistent involvement, then the crime is at least partially offense-specific. And therefore it needs to be tried in the culpability phase.
Moreover, in State v. Cam, which came out a few months ago, the COA noted that the jury could find persistent involvement for counts all arising out of the same trial if the jury finds the counts are "unrelated."
- Additionally, the jury could find “persistent involvement” based entirely on crimes that the jury itself had found defendant guilty of committing, as long as the offenses were unrelated to each other.
Cam I.
That would require finding persistent involvement based entirely on facts arising out of the culpability phase. In other words, 100% "offense-specific."
This means that if you go through the culpability phase without the prosecutor submitting the question of "persistent involvement" to the jury, it may be too late for the prosecutor to do so during the sentencing phase.
