Jury Waivers, Bench Trials and Mallory
by: Ryan • February 15, 2011 • no comments
Lots of opinions from the Court of Appeals today and multiple criminal opinions from the Oregon Supreme Court tomorrow.
There's one significant opinion I want to talk about explicitly. State v. Lafferty. It's a state's appeal, after the trial judge refused to consider the defendant's (alleged) juvenile adjudication, on the grounds that (1) the defendant did not admit to the adjudication, (2) there was no jury finding of the adjudication, and (3) there was not a valid waiver of a jury trial to that finding when the defendant entered a guilty plea to burglary and assault.
The opinion is very thoughtful and thorough, including the parts I don't necessarily agree with. But the trial court was affirmed, and this decision could have consequences in a number of other situations.
Take for example convictions after a bench trial or a guilty plea involving crimes in which the dates in the indictment overlap. Open sentencing. State argues separate criminal episodes (SCE), because a finding of SCE would enhance the defendant's sentence significantly, either by making him subject to a repeat property offender sentence or reconstituting his criminal history. Defendant says, "Judge, there aren't separate criminal episodes, but even if an argument could be made that there were, it's too late. That's a jury question under State v. Mallory and no jury has made that finding."
Before today, the state's (probably successful) argument would have been: "Judge, the defendant waived jury. You can make that finding."
Unless the jury waiver explicitly includes a waiver of a jury trial right to that finding (and proper notice had been given), you win.
