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Sentence Enhancers vs Elements: a Comment on State v. Sanchez

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by: Ryan • October 26, 2010 • no comments

Today, the Oregon Court of Appeals issued an opinion in State v. Sanchez, 238 Or. App. 259 (October 27, 2010), in which it held that sentencing enhancement facts are not elements, and further, that such facts do not have to be pled in the indictment.

The opinion was about sentencing factors generally, but - if the opinion holds - it appears to foreclose an argument that "offense-specific" enhancement facts are elements under the Oregon Constitution.

Citing its own recent opinion, the Sanchez court stated:

We held that, because they related only to sentencing, subcategory facts need not be submitted to the grand jury, specifically stating that "[t]he Oregon Constitution does not require that a grand jury find facts that pertain only to sentencing." State v. Williams, 237 Or App 377, 383, 240P3d 731 (2010).

With all due respect to the Court of Appeals, they ignore some pretty important Oregon Supreme Court case law to reach their conclusion. The Oregon Supreme Court has repeatedly held that offense-specific enhancement facts that do not involve a comparison between two separate crimes are elements under the Oregon Constitution, regardless of the label given to them by the Oregon legislature.

In State v. Ice, 343 Or 248, 170 P3d 1049 (2007), reversed on other grounds, Oregon v. Ice , 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009), the Oregon Supreme Court summarized the Oregon case law regarding the right to a jury trial under the Oregon Constitution, starting with State v. Quinn, 290 Or 383, 623 P2d 630 (1981). In Quinn, the Oregon Supreme Court noted that the law required trial courts to impose the death penalty on defendants found guilty of murder, if the court found either that the defendant had acted deliberately or that there was a probability that the defendant would commit criminal acts of violence that would constitute a threat to society.

"The Quinn court concluded that, because the fact of deliberateness was one of the facts that constituted the crime for which the defendant was to be punished, the scheme violated the right to jury trial guaranteed by Article I, section 11." Ice at 257.

The Ice court quoted the Quinn court as standing for the 'simple principle' - that 'facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.' Ice at 258, quoting Quinn at 405.

After Quinn, the next consequential opinion on this issue was in State v. Wedge, 293 Or 598, 652 P2d 773 (1982), which held that defendant's state jury trial right applied to a five-year mandatory minimum sentence. As described in Ice, Wedge "explain[ed] that, although the statute treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime' of first-degree robbery using a firearm. Id. at 608." [Emphasis added.]

The Ice court further noted that the Wedge court "indicated that it would look beyond the legislative label attached to an enhancement factor to determine whether, in reality, it was an element of the crime for which the defendant was to be punished (and, thus, a fact that must be determined by the jury)." Id.

The Wedge court also affirmed the holding of Quinn, which was whether something was in effect an element of the crime depended largely - but not entirely - on whether the enhancement was offender-specific or offense-specific. As the Ice court noted when summarizing the holdings of Ice, Quinn and State v. Hart, 299 Or 128, 699 P2d 1113 (1985), "Inherent in that approach is the idea that some facts that may lead to enhanced punishment - for example, those that pertain to the defendant's character or status - are traditionally and properly for the sentencing court."

I would add, however, that there is one big difference between Wedge and Quinn. In Wedge, when the state sought to prove "use of a firearm," it created a new crime: "first-degree robbery using a firearm." Id. at 608. When the state sought to prove "deliberateness" to the trial court, it was not alleging an enhanced version of aggravated murder. It was still aggravated murder, whether the allegation was proven to a jury or the court, with a maximum sentence of death.

In sum, when the state seeks to enhance a sentence via either "commercial drug offense" factors or aggravating factors such as "vulnerable victim" or "harm greater than typical," those elements create a new crime, an enhanced version of the original crime, but just as much a new crime as "first-degree robbery with a firearm."

The COA did cite an Oregon Supreme Court opinion for its conclusion, and analyzed it as follows:

Furthermore, the Oregon Supreme Court has considered and rejected the argument that sentencing factors that allow for the imposition of a harsher sentence constitute elements of an aggravated form of the underlying criminal offense. In State v. Wagner, 305 Or 115, 752 P2d 1136 (1988), vac'd on other grounds, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), the defendant had been convicted of aggravated murder and received a death sentence. He contended that the indictment did not support the sentence because it did not allege all the facts the jury had to find in order to impose the death penalty-specifically, it failed to allege that he acted with deliberation. The court noted that deliberation is not an element of aggravated murder and rejected defendant's contentions, stating: "The offense with which this defendant is charged is aggravated murder as defined in ORS 163.095(2)(a)(E) * * *. The ultimate facts that make up that offense are clearly alleged in the indictment. To be guilty of aggravated murder one does not need to act 'deliberately." If one is guilty of aggravated murder but the jury does not unanimously find that the perpetrator acted deliberately, the guilty one is not sentenced to death but is yet guilty of aggravated murder. There is no requirement of pleading an indictment that requires the indictment to set forth possible penalties that the law may fix for guilt on a particular charge." Id. at 172 (emphasis added). Thus, the indictment in that case was sufficient to allow the jury to consider and impose the death penalty, notwithstanding that, for that penalty to be imposed, the jury was required to find that the defendant acted "deliberately" and the indictment did not include that allegation.

Sanchez at 695. [Emphasis added by Sanchez court.]

First of all, it is worth noting that Wagner somehow escaped the OSC's summary of all of its relevant case law in Ice on what did or did not constitute an element. One would have hoped that would give the COA pause, that maybe Wagner stands for something different, something that doesn't overrule Wedge. And in fact Ice (written in 2007, nearly 20 years after Wagner came out) assumes Wedge is good law. So does Wagner really stand for what the COA says it does?

I believe the appropriate analysis can be found in two COA cases on Felony Driving While Suspended. In the first of these two cases, State v. McCartney, 65 Or App 766, 672 P2d 1210 (1983), rev den 296 Or 638, 678 P2d 739 (1984), the COA held that an indictment charging felony DWSR under former statute provided adequate notice of enhanced charge by alleging that defendant did "feloniously drive a motor vehicle"; specific enhancing factor did not have to be alleged).

Rather, the specific facts of an offense are to be provided in discovery, not in lengthy factual recitations in indictments. See State v. Wright, 167 Or App. 297, 306-11, 999 P.2d 1220, mod'f on recons 169 Or App 78, 7 P3d 738, rev den 331 Or 334 (2000) (reviewing cases); State v. Shadley/Spencer/Rowe, 16 Or App. 113, 123, 517 P2d 324 (1973). Nothing in Apprendi requires, as a sufficient allegation of the crime for which defendant was charged, any more than the allegation here.

State v. Early, 180 Or App 342, 348-349 (2002), overruled on other grounds, State v. Caldwell, 187 Or App 720, 69 P3d 830 (2003).

By alleging "felony" driving while suspended, the state puts the defendant on notice that he is subject to being charged with a felony crime, and that he is felony suspended. The state does not need to allege those specific facts that make him felony suspended.

Similarly, by alleging "aggravated murder," that's enough to put the defendant on notice that he's charged with aggravated murder. The maximum penalty for aggravated murder is death. Had the state added that the defendant acted deliberately in the indictment, the crime itself does not change. It is still aggravated murder, which carries a maximum penalty of death. "Deliberateness" is built into the charge that's been alleged, just as a "felony suspension" is built into the charge of felony driving while suspended.

This interpretation is consistent with the holding in Wagner as well.

In contrast, however, alleging CDO factors or "vulnerable victim" or "harm greater than typical" does in fact enhance the maximum sentence the defendant would face. Those elements are not built-into the indictment. The OSC has held in Wedge (and reaffirmed in Ice) that factors that are offense-specific, that don't require a comparison between two different crimes, and that aren't automatically built-into the offense', such as Wedges "use or threatened use of a firearm" are in fact elements of the enhanced crime, even though the legislature has called them sentence enhancements.

If elements, they must be pled in the indictment. Absent a waiver of an indictment, failure to allege elements of a crime (in this case, offense-specific enhancement facts) violates Article I, section 11, which states:

In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; . . . .

Article I, section 11, has been interpreted by the Oregon Supreme Court to require that all material elements be found by the grand jury, absent a waiver of indictment or a preliminary hearing.

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.

State v. Smith, 182 Or 497, 501-502 (1948) [Emphasis added.]

Alleging enhancement facts without re-submitting the case to the Grand Jury would also violate Article VII (Amended), section 5, of the Oregon Constitution, provides in part:

(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.

See also State v. Moyer, 76 Or 396, 399, 149 P 84 (1915) (Oregon Constitution authorizes amendment of indictment as to form; amendment as to substance is unauthorized unless approved by grand jury or authorized by law). Cf. State v. Russell, 231 Or 317, 322-23, 372 P2d 770 (1962) (time to amend substantial facts is while indictment is before grand jury).

What is my advice? If the state seeks to upward depart your client based on offense-specific enhancement facts, such as "vulnerable victim" or "harm greater than typical," continue to object that the allegations aren't in the indictment, at least until the issue is finally put to rest by the OSC.