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Revisiting Old Posts: Tea Leaves, Dangerous Offenders, Upward Departures and Offense-Specific Aggravators

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by: Ryan • January 12, 2012 • no comments

When you start reading, you'll think I'm just re-hashing an old argument. But I have a pleasant surprise at the end.

There is an argument that I've been pushing for some time, where I'm virtually alone - I suspect - in thinking the argument has merit. I say "virtually" alone, but I do think I have Jess Barton on my side, which is even better than having Clint Barton on my side.

And the issue is whether offense-specific enhancements must be plead under the Oregon Constitution. The argument is pretty straight-forward: according to more than 20 years of Oregon Supreme Court case law, offense-specific enhancement factors are "elements" of a crime under the Oregon Constitution, regardless that they've been given a "sentence-enhancement" label. Ironically, the greatest summary of this history is in the first half of State v. Ice. But even when Ice was good law, everyone ignored the first half, because of the more immediately significant portion that dealt with the federal constitution. Now that Ice has been reversed (but only as to the federal constitution), mentioning Ice as a case of continuing importance tends to meet with scorn.

Prior to Ice, the most significant - but far from the most recent - case on this topic was State v. Wedge, which held that the gun minimum - a classic "sentence enhancer" - was an element, despite its legislative label.

If offense-specific enhancements are elements under the Oregon Constitution, then elements have to be plead in the indictment, right? Quite a number of cases say so, but the one exception - sorta - is the case that says that the questions a jury must answer to impose death do not have to be plead in the indictment. The state has routinely relied on this case to say that even if offense-specific factors are elements, they don't have to be plead.

The flaw in the state's argument is this: the indictment already says "aggravated murder." That informs the defendant that the maximum sentence is death. The allegation of "aggravated murder" satisfies the pleading requirements, just as a defendant charged with felony DWS isn't entitled to have the actual reason it's a felony suspension plead in the indictment. The defendant is given sufficient notice by pleading "felony" DWS. Sentence enhancement factors - in contrast - are not inherently part of the charge itself. They are in addition to the charge, and therefore - if offense-specific - must be plead like any other element.

As I said, I'm virtually alone in believing this. At least it seems that way sometimes. The COA has rejected this argument repeatedly. A number of appellate attorneys have gone out of their way to concede this argument in the state's favor. As far as I can tell, trial attorneys don't even make this argument anymore (even though the motion has already been written and is a dozen posts ).

It's true that I did see a glimmer of hope in an offhand reference in a recent Oregon Supreme Court opinion. I actually wrote about it here. That's why this post falls into the "revisiting old posts" category. In that post, I quoted the OSC as saying:

"Our state constitutional vagueness holding is limited to sentencing and, within that context, to sentencing factors that bear on a defendant's character. We have no occasionto consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender. Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) (distinguishing, for the purpose of Article I, section 11, between sentencing factors that relate to the offense and those that relate to a defendant's character or status), rev'd on other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009)." [emphasis added.]

And then I reminded y'all that, going as far back as 1948, Article I, section 11, requires pleading elements in the indictment:

"Section 11 of Article I of the state constitution guarantees to every person accused of crime the right to 'demand the nature and cause of the accusation against him'. We have recognized that this guaranty is absolute and is peremptorily binding upon the courts, but we have held that it does not prevent the legislature from providing for the simplification of indictments through the elimination of unnecessary verbiage. State v. Dormitzer, 123 Or. 165, 261 P. 426. Simplification of pleading may be of benefit to an accused, as it tends to clarify the charge against him, but it has been held that the legislature may not constitutionally authorize the omission from an indictment of allegations necessary to describe a specific crime. Commonwealth v. Freelove, 150 Mass. 66 22 N. E. 435. It is not within the power of the legislature to declare that to be an indictment which does not set forth those elements of a criminal offense required by the constitution to be contained in an indictment. 27 Am. Jur., Indictments and Informations, section 2; People v. Bogdanoff, 254 N. Y. 16, 171 N. E. 890, 69 A. L. R. 1378." [Emphasis added.]

State v. Smith, 182 Or 497, 501-502 (1948)

"Okay," you say, "fine, tea leaves, arguments on life-support, what's the pleasant surprise you promised before I started reading this g*dd&**n long post?"

Today, the Oregon Supreme Court granted review in a case called State v. Reinke. And the questions presented are:

"(1) Does the Oregon Constitution require the state to plead in the indictment facts necessary to find that defendant is a dangerous offender, before a sentencing court may impose a dangerous offender sentence? (2) If not, is the state otherwise required to include them in some type of document that is filed with the trial court?"

Now, we all know that granting review on a question doesn't mean that the OSC will reverse the COA, but really, if you're going to trial on offense-specific enhancement facts - and dangerous offender can be a hybrid of offense- and offender-specific enhancements - it's now officially malpractice not to raise this argument, at least until the OSC rules against us. If they rule against us.

One last thought: Jess Barton mentioned hybrid enhancement factors in this post, where he said:

Like the dangerous-offender findings for Class B and C felonies, most of which are offender-specific but one of which is offense-specific, see, e.g., State v. Tanner, 192 Or App 670, 87 P3d 688, rev den, 337 Or 160 (2004), Aggravating Factor D is a hybrid. Part of it is offender-specific, but another part is offense-specific. Moreover, its hybrid nature makes a tremendous difference in how the factor may be used-including whether it may be used at all.