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If Reinke wins, would it be a very narrow victory?

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by: Ryan • May 3, 2012 • no comments

Today was argument in St v. Reinke. Brief summary: Mr. Reinke was convicted of a B felony, kidnapping in the second degree, and the jury found dangerous offender factors, and the court imposed a dangerous offender sentence. Unlike DO sentences imposed on A felonies, the DO findings in this case included an enhancement factor that was akin to an offense-specific element: that the crime "seriously endangered the life or safety of another."

The question before the court is whether that factor -- which is arguably an element for some constitutional purposes per St v. Wedge and St v. Quinn -- would have to be pleaded in the indictment.

Since it was not pleaded in Mr. Reinke's indictment, his DO sentence would be overturned.

I have previously argued that Mr. Reinke could win without overruling the opinion in the capital case, referred to as Wagner I. This would be based on the fact that -- as Justice Gillette said in St v. Johnson -- the penalty of death does not create an aggravated version of Aggravated Murder. Factors necessary to impose death do not change the crime alleged in the indictment. In contrast, the DO sentence creates a new crime kidnapping which seriously endangered the life or safety of another," which is just as distinct from kidnapping as "robbery with a firearm" is from "robbery," a conclusion unambiguously expressed by the Oregon Supreme Court in Wedge.

The question here is, could Reinke win but the rule that the court adopts nevertheless not apply to offense-specfic enhancement facts such as "vulnerable victim" or "use of a weapon"? That would make a Reinke win very nice for Mr. Reinke but of little help to other defendants.

One of the differences between an enhancement fact like "vulnerable victim" or "use of a weapon" and a DO finding is that the DO -- in Reinke's case -- enhanced the maximum punishment from 10 years to 30 years. In contrast, attaching "vulnerable victim" to a B felony would still only result in a sentence less than the 10 year maximum. Is that a distinction that the Oregon Supreme Court could rely on?

Not without being inconsistent with St v Wedge. Wedge was written before the guidelines. Consequently, imposing the gun minimum set a five year floor, but it did not increase the maximum sentence ("Although in the present case the statutory mandatory minimum does not increase defendant's penalty, this would not always be true.")

Since we are assuming for this post that Reinke wins, then I think we have to assume it is because the Court decided that "an element" is defined the same way for both the right to an indictment and the right to a jury trial, both of which are contained in Article I, section 11. If the court does apply a consistent standard, then Wedge demonstrates that the enhancement fact need not go beyond the statutory maximum 5, 10 or 20 years in order to constitute an element of the crime. So the difference between an offense-specific DO fact and an offense-specific enhancement fact would seem non-existent for the purposes of Article I, section 11.

Consequently, it would seem that a win for Reinke -- while not applying to A-felony dangerous offenders, and maybe not applying to capital cases -- should also apply to offense-specific enhancements. How many previously-imposed sentences would be put in jeopardy by a Reinke win? I don't know, but I don't think very many. The overwhelming majority of enhancements that are doled out are offender-specific (persistent involvement, on supervision), and for most M11 sentences, an upward departure often wouldn't raise the sentence beyond the minimum anyway, unless the defendant has the kind of criminal history that would merit a departure for offender-specific reasons anyway.

So all in all, I think a Reinke win could be pretty narrow, but it shouldn't be so narrow as to be limited to B-felony dangerous offender cases.