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Offender vs Offense Specific: How Much Do Defense Lawyers Understand About This Issue?

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by: Ryan • April 29, 2012 • no comments

Later this week, the Oregon Supreme Court is hearing argument in State v. Reinke, a subject I've written about quite a few times.

I anticipate that the big hurdle for the defendant will involve Wagner I. That is, if offense-specific enhancement facts are elements, do they have to be pled in the indictment? If you want to know why I think the defendant will be able to overcome that hurdle -- or perhaps scoot past it -- see Wagner I and Offense-Specific Aggravators and Might Wagner I Be Overruled By a Non-Death Case?

I'm not worried about the first hurdle, which is whether offense -specific enhancement facts are elements under the Oregon Constitution. I won't re-hash the arguments here. One interesting aside, however, is that the argument the defendant makes on this point is almost exactly the same argument made by . . . . the Oregon Attorney General's office back in 1993. (Incidentally, the AAG who argued this position 20 years ago has the initials TS. He's still there. I'll get to the quote below.)

That's right. The position that defense attorneys and appellate attorneys have been conceding for years was actually once the position of the Oregon AG. I don't intend this as a "gotcha." Legal positions change for a lot of reasons, not just convenience. And in fact, the opinion I'll be quoting from arguably justifies a change in position by the Oregon Attorney General. Moreover, there's probably a sliver of daylight between what the Oregon AG argued then and what they'll be arguing this week, if you were inclined to thinly slice its position.

The case involved accomplice liability. That is, could an accomplice be convicted of level-8 burglary (which requires an occupied dwelling) if the accomplice himself never went into the building?

Anyway, here's the relevant quote:

On appeal, defendant argued that the offense subcategories provided in the sentencing guidelines are "sentence enhancements" to which accomplice liability does not attach and that, because he did not enter the dwelling personally during the burglary for which he was convicted, the offense subcategory based on that factor should not have been applied to him. In response, the state argued that, because a factor on which an offense subcategory is based must be pleaded specially in the indictment and must be proved by the state beyond a reasonable doubt at trial, such a factor has the status of an element of an offense.

State v. Lark, 316 Or 317, 320-321 (1993)

The state ultimately prevailed in that case, but not for that reason. Instead, the Oregon Supreme Court elaborated on the offender/offense distinction when it comes to accomplice liability.

When I complain that Oregon sentencing law is too complicated, part of that complaint is rooted in my concern that a majority of criminal defense lawyers don't know basic rules about sentencing. This is one of rules I'm concerned they don't know.

Take burglary. As noted, burglary I is a level-8 offense if the dwelling is occupied. And it's a level-8 whether you're an accomplice or a principal, because "the dwelling was occupied" is offense-specific.

In contrast, level-9 enhancements for burglary I are offender-specific.

"BURGLARY I - "CRIME CATEGORY 9
"Burglary I shall be ranked at Crime Category 9 if any of the following factors were included in the commission of the offense: "a.) the offender was armed with a deadly weapon; or "b.) the offender caused or threatened physical injury to the victim.

In this example, at least, the difference between offender- and offense-specific should be obvious. But only if you know what you're looking for. If you do not, if you are unaware of the offense/offender distinction, you may assume your client -- who is accused of being a burglary accomplice -- is facing a CSL-9 when, if he wasn't armed or didn't personally threaten, he is really only looking at a CSL-8. Big difference.

The same is true for the gun minimum. If your client -- though an accomplice -- didn't personally use or threaten to use a firearm -- then he isn't facing the gun minimum.

And the same applies to commercial drug offense factors, some of which are offense-specific and some of which are not.

Do defense lawyers know this? I have doubts. It seems like a week doesn't go by where I'm not struck by how little experienced defense lawyers know about sentencing law.

That ignorance is part of the reason, I think, that it has taken so long for the Reinke issue to get to the Oregon Supreme Court. What Reinke is asking for -- that offense-specific enhancements must be pled, under Article I, section 11, because they are elements under the Oregon Constitution -- is not an argument that is so far ahead of the curve that lawyers should be put off by it. It's a natural extension of cases such as St v. Lark, St v. Flanagan, St v. Wedge and St v. Quinn. Really, it's just a slight stretch of existing case law. But if you don't even know the principles behind those cases, if you don't know that the offender/offense distinction has long played a role in Oregon sentencing history, then maybe the Reinke argument just seemed too esoteric and outlandish to preserve.

Similarly, I think the reason that so many defense attorneys don't raise Criminal Episodes, Blakely and the Only Argument the State is Making Against Mallory issues is that they don't know some basic rules of sentencing, so that the Mallory issue itself just seems like a bridge way, way too far. Just last week I was reading an appellate brief where it became obvious that the trial attorney -- someone who has been practicing Oregon criminal defense for twenty years -- didn't even know something as basic as what I describe inMultiple Victims But One Criminal Episode .

One final thought: should the fact that the Oregon Supreme Court didn't adopt TS's primary argument in State v. Lark worry us that the OSC won't find offense-specific factors to be elements when they decide Reinke? After reading Lark, I don't think there's reason to worry, but I'll leave it up to those who are curious to read Lark to make up their own minds.