Challenging "For Consideration" in Boyd Delivery Cases
by: Ryan • March 19, 2015 • no comments
I've long argued that the sentence enhancement "the delivery was for consideration," required actual consideration, not hypothetical or anticipated consideration. The state's position is that delivery, by statutory definition, includes "attempted delivery," and this somehow translates into, essentially, "attempted consideration." It has never been decided by the Court of Appeals as far as I know.
But I want to suggest a new way to argue this issue. It's an approach that substantially strengthens the argument. And moreover, the state may have more to lose by defeating this argument than it would have to gain by winning it.
"The delivery was for consideration" is a sentence enhancement fact. The AG's office has and will continue to argue -- with good reason -- that it is not an "element." Consequently, the statutory and constitutional protections that apply to elements do not apply the sentence enhancement facts.
Another sentence enhancement fact is "the dwelling was occupied," which is from an OAR that raises the crime seriousness level of burglary if the enhancement fact is found. "Delivery was for consideration" is rooted in a statute, not the OARs, and that's an important distinction that I'll get to later.
In State v. Travalini, the defendant argued that the state was required to prove that the defendant knew the building was occupied in order for the enhancement fact to be found against him. This is what the COA decided:
- In some cases, a culpable mental state can travel far down a statute, but no case or logic supports the idea that it can also travel into a completely separate, nonstatutory, text. In sum, we conclude that an offense-subcategory fact is not an element of an offense to which a culpable mental state must apply by virtue of ORS 161.095(2) or ORS 161.115(1), at least when the fact is not described in the statute itself.
Note that the court suggests a possible distinction between sentence enhancement facts that are in the OARs and those that are based on a statute. It doesn't clarify how or why that distinction applies, and I'll explain below why the state likely wouldn't like that distinction to have any significance.
But leaving aside, temporarily, that distinction, if we apply the logic of Travalini, then no mental state should apply to "the delivery was for consideration." It's a sentence enhancement fact -- the state won't argue otherwise -- and there is no case that holds that a mental state has ever applied to a sentence enhancement fact.
If no mental state applies to "the delivery was for consideration," that doesn't create a problem as long as there is actual consideration. But "attempted consideration," by definition, would require a mental state: the defendant intends that consideration will be exchanged for the drugs, if and when an actual delivery would have taken place. Both the statutory definition of "attempt" and the dictionary definition require the intent mental state.
If no mental state can apply, as a matter of law, to the sentence enhancement of "the delivery was for consideration," then you simply can't get an enhanced sentence for intending to receive consideration. It is simply logically impossible.
But what about the fact that the enhancement is rooted in a statute rather than an OAR? Because of that distinction, could a mental state apply? The state will be very hesitant to make that argument. Why? Because that would require the appellate courts to find that "the delivery was for consideration" is an element, since mental states only apply to elements.
Ironically, there is a case up at the COA right now (briefing is not yet done) where the defendant is arguing that CDO factors are in facts elements, because they are statutorily based (as opposed to being found in the OARs). This argument is essential to convincing the appellate courts that DCS -- when it includes the element/sentence enhancement of "the defendant was in possession of X grams of the controlled substance -- merges with PCS.
When the state's brief is in, we can expect them to argue strenuously that the CDO factors -- including "the delivery was for consideration" is not an element, regardless of its statutory origin, and therefore there should be no merger. But then, I submit, they'll have conceded, whether they know it or not, the argument I make above.
