Almost all of the constitutional objections to upward departure factors have been rejected, either explicitly or implicitly, by the Oregon Court of Appeals. Nevertheless, defense lawyers should assume the issues aren't dead until the Oregon Supreme Court says so (or the United States Supreme Court says so, regarding at least one argument).
Furthermore, there are limitations to upward departures within the Oregon Administrative Rules that will win. All it takes is that the defense counsel is familiar with those limitations. For example, if the state alleges "Multiple Victims or Incidents," you can be confident that the upward departure won't be used, because the full OAR states: "(G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence." [Emphasis added.] If an upward departure would prohibit consecutive sentences, it's utility to the prosecutor or judge is close to zero.
Let's start with the one argument that lost in the Court of Appeals but is now under review with the Oregon Supreme Court.
I. NON-ENUMERATED ENHANCEMENT FACTS - such as "on supervision" or "probability that defendant cannot be rehabilitated" - VIOLATE OREGON CONSTITUTION
The OSC granted review in a case called St v. Speedis. The questions presented were:
Do nonenumerated aggravating sentencing factors violate separation of powers provisions of the Oregon Constitution? Do nonenumerated aggravating sentencing factors violate Article I, sections 20 and 21, of the Oregon Constitution, or the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
See the following trial memo taken from the appellate brief by Meredith Allen: [non-enumerated factors] memo. We can expect an opinion in 2011. Preserve now!
II. ALL ENHANCEMENT FACTS REQUIRE EITHER A GRAND JURY INDICTMENT OR A PRELIMINARY HEARING
Next, let's look at the argument that will ultimately be decided by the United States Supreme Court. I've previously posted the following memo on this issue: [/sites/default/files/ryan-dang-offender-ii.doc Motion to Disallow Agg Factors/DO.]
The United States Constitution explicitly requires a Grand Jury indictment for all crimes. This would encompass enhancement facts - which are elements under the federal constitution - except that the indictment clause has not been incorporated into state prosecutions, according to a case called Hurtado v. California.
Hurtado v. California is actually more nuanced that most people realize. It appears to hold that preliminary hearings are an adequate substitute for Grand Jury indictments, under the due process clause.
If Hurtado were being decided today, it would apply the indictment clause to state prosecutions, in light of the analysis in McDonald v. Chicago. What might save Hurtado is stare decisis, but keep in mind that stare decisis did not save long-standing case law that held that the 2nd Amendment has not been incorporated into state prosecutions.
But even if Hurtado remains good law, it does seem to hold that a preliminary hearing is still minimally required. Which means that, even if the enhancement factors aren't pled, a preliminary hearing on those factors is required. This is why the [aforementioned memo] contains that option as an alternative. If there has been no preliminary hearing, then the aggravating factors should be dismissed.
III. ALL OFFENSE-SPECIFIC ENHANCEMENT FACTS MUST BE PLED IN THE INDICTMENT, PER OREGON CONSTITUTION
This is an argument that has implicitly lost at the Court of Appeals, but the COA analysis is entirely at odds with Oregon Supreme Court precedent that it is hard to imagine that the OSC will not grant review eventually.
Prior to Sanchez, it actually won at the trial level.
Regardless of the legislative label, almost all offense-specific enhancement facts, such as "vulnerable victim" or "harm greater than typical" or "use of a weapon," are elements under the Oregon Constitution and therefore must be pled in the indictment.
Here is a trial memo on the subject: [upw departure offense specific memo]. Despite the COA, I actually believe this argument has an extraordinary strong chance to prevail.
IV. NO DOUBLE-COUNTING
This one doesn't come up very often, but when it does, the state will usually concede defendant's objection. Classic situation: state alleges "use of a weapon" or "threat of violence" for a crime that necessarily requires a weapon or a threat of violence. Not allowed. State v. Torres, 182 Or App 156, 48 P3d 170 (2002); State v. Wilson, 111 Or App 147, 152, 826 P2d 1010 (1992). Depending on the crime, "vulnerable victim" might also be double-counting.
From the COA:
Factual aspects of a crime that constitute elements of the crime generally may not be used as aggravating factors as well, "unless the aspect is 'significantly different from the usual criminal conduct captured by the aspect of the crime.'" State v. Guthrie, 112 Ore. App. 102, 106, 828 P2d 462 (1992) (quoting OAR 213-008-0002(2)). In this case, defendant violated the stalking protective order by causing his niece to deliver a gift card to the victim, which was intended as a birthday gift for his son who was in the victim's custody, thus violating the order's prohibition on third-party contacts. Nothing in the record indicates that the conduct was "significantly different from the usual criminal conduct captured by the aspect of the crime".
State v. Gallino, 227 Or App 304 (2009)
V. "Harm greater than typical"
Note that the full OAR states: "The degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense." [Emphasis added.]
This one suffers from being both vague and indefinite and uncertain. What is the "typical" harm for, say, "Robbery I"? How do you measure it? And if there's a severe injury, isn't that covered by the assault charge as well? Do you measure the typical harm of a robbery/assault? How is a jury supposed to know? Prosecutor files this, then demand all the police reports for that crime in that county for the past five years.
From the COA:
We readily conclude that there is no legitimate debate that the jury would have found that the harm that the victim suffered-loss of her home and nearly all of her possessions to fire-was greater than the typical harm contemplated by the legislature when it established the presumptive sentence for first-degree burglary. See State v. Rhoades, 210 Ore. App. 280, 285, 149 P.3d 1259 (2006) ("In determining whether a factor constitutes a substantial and compelling reason for departure, we look at whether 'exceptional circumstances [exist that] overcome the presumption that the [presumptive] sentence accomplishes the purposes of the guidelines.'") (quoting State v. Parsons, 135 Ore. App. 188, 191, 897 P.2d 1197, rev den, 322 Ore. 168, 903 P.2d 886 (1995)).
State v. Vandervort, 225 Ore. App. 343, 346 (Or. Ct. App. 2009)
VI. SUBSTANTIAL AND COMPELLING
ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")
The Wilson Court explained that it would review the trial court's "explanation of why the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." [Emphasis added.]
Question: how is being "on supervision" an exceptional fact that merits an upward departure? When was the last time someone who was REPO wasn't on supervision at the time of the crime? If 75% of REPO defendants were on supervision, that's not exceptional.