When the Oregon Court of Appeals ruled in State v. Rutley that the requisite mental state for delivery also applied to the element of "within a thousand feet of a school," the big mo shifted in favor of the defense bar, and not just in drug cases. Trial judges started applying mental states to all sorts of elements that they hadn't before.
Then, the Oregon Supreme Court reversed Rutley, and suddenly the tide had receded. All at once, it was very rare for trial judges to apply mental states to elements beyond those elements that had already been endorsed by case law. The judges had read the tea leaves, and they concluded that mental state case law wasn't as expansive as it had seemed just the year before.
And now, years after Rutley, we are starting to see the next generation of mental state/element cases, such as St v. Rainoldi (reversing the trial court and applying mental state to the defendant's knowledge that he's a felon) and St v. Nelson (reversing the trial court and applying mental state to the element of forcible compulsion). Maybe now we'll achieve a certain equilibrium.
Similarly, the defense bar currently has momentum when it comes to merger. So many merger opinions have come out in favor of the defense, and judges are increasingly aware of the momentum, that I'm hearing from defense attorneys who are winning merger arguments at the trial level that even I - the merger obsessive - am not really convinced should win.
When the trial judge reads the tea leaves of appellate trends, it's not a purely cynical exercise. The reality is, a trial judge rarely has the time or resources to do the kind of analysis that the appellate courts do. When it's a new and open question, the judge is going to take short cuts, and if they don't see any momentum behind an issue of first impression (and almost by definition there won't be any such momentum), the safe - and usually correct - thing to do is to rule for the state.
With that as background, I want to turn to today's Speedis opinion from the Oregon Supreme Court. I'm disappointed for a few reasons, but one in particular stands out: the appellate courts have shot down every challenge to enhancements since St v. Ice was overturned by SCOTUS. There could not be less momentum for these arguments, and lord knows, the OSC doesn't seem interested in taking review. Well, these things have a way of being self-defeating. If you think you're going to lose not only here and now, but three years from now, you ain't going to bother making the argument. The appellate attorney won't bother making the argument. And we'll never even have a shot at getting some good case law.
I'm here to say, however, that there are still arguments defense attorneys need to make. In fact, there's one that may seem futile for a lot of reasons, but you still need to argue it, and I'll tell you why Speedis makes me think the issue is still alive, even though it wasn't really an issue in that case.
Enhancement facts have long been divided into offense-specific and offender-specific. Under the Oregon Constitution, offense-specific factors required a jury verdict. The distinction and rule existed long before Blakely. In State v. Wedge, the Oregon Supreme Court held that "use or threatened use of a weapon" - i.e, the firearm minimum - was an offense-specific enhancement fact and therefore, for all intents and purposes, an element of the crime under the Oregon Constitution.
There has been a long history of post-Wedge analysis, but you can't do any better than the analysis in St v. Ice. Ice? The case that was overturned? Yes. The case that isn't good law? Well, not exactly.
No one remembers that Ice did a thorough analysis of enhancement factors under the Oregon Constitution. It dived into the whole post-Wedge analysis regarding what was or was not an element under the Oregon Constitution. To this day, it is the best analysis of this issue anywhere. And with the exception of factors that involved the relationship between two crimes (such as consecutive sentence factors), it reaffirmed that offense-specific enhancement factors were elements under the Oregon Constitution, just as Wedge had said twenty years before.
Since Oregon v. Ice, however, the Court of Appeals has repeatedly held the opposite. In cases such as St v. Sanchez, among others, it held that offense-specific enhancement factors were not elements. In fairness to the court, in a couple of the cases, the defense attorney conceded (erroneously, in my view) that they weren't elements. Further, even in those cases like Sanchez where the defense attorney didn't make that concession, the focus of the case wasn't really on the offense-specific/offender-specific distinction.
In sum, no one has really raised the issue squarely. At this point, I don't think it would matter to the COA. They've ruled. But until the issue is raised head-on with the COA, I wouldn't expect the Oregon Supreme Court to grant review. I do believe however that the OSC is waiting for a case that does tackle the issue unambiguously.
Let me interrupt myself for a moment. You might be thinking I'm being somewhat arrogant here. The COA has ruled a certain way repeatedly. Good defense attorneys have conceded the issue. Why should we believe you, Mr. Scott? If you think everyone else is wrong, how likely is that? How likely is it that you're the only one who sees this issue clearly? And don't you have clients who suffer from the same delusion?
My only answer to that is: read the first half of St v. Ice. Honestly. Don't take my word for it. The Oregon Supreme Court lays out the whole history of the analysis of offense-specific enhancements under the Oregon Constitution and, as you would expect, they are quite convincing. If you read that half of Ice, and you still think I'm wrong, fine. I can live with that. But I promise you, that portion of Ice - which wasn't overruled by Oregon v. Ice, nor could it be - is utterly and completely convincing regarding where the OSC mind-set is. And I had convinced two trial judges of the same, including one who is extremely pro-prosecution, though I think now they would both be bound by Sanchez and the rest.
Consequently, I believe - I truly and completely believe - that the Oregon Supreme Court wants to face the issue of whether offense-specific factors are elements and whether they have to be plead in the indictment. (The Oregon AG has an argument why, even if they're elements, they don't have to be plead in an indictment, but I think I can win that argument easily. I'll save that argument for another day, however.)
Which brings us back to Speedis and the tea leaves question. Is there anything in today's Speedis opinion that hints that the OSC is still highly interested in the offense/offender distinction? Yes. As noted in here from earlier today, the Oregon Supreme Court took the time to note that all of the enhancement factors at issue in Speedis were offender-specific.
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.]
Your next question for me, I hope, is: wait, remind me, what does Article I, section 11, say again?
Section 11. Rights of Accused in Criminal Prosecution. 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; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment. [Constitution of 1859; Amendment proposed by S.J.R. 4, 1931, and adopted by the people Nov. 8, 1932; Amendment proposed by S.J.R. 4, 1931 (2d s.s.), and adopted by the people May 18, 1934]
So, if offense-specific factors are treated different for the purposes of Article I, section 11, then all the above rights apply to offense-specific factors? Yes, that's what the Oregon Supreme Court seems to be saying in that footnote, and certainly in Ice they make the case convincingly, at least of the right to a jury trial.
Well, so what, you say? We've got that right under the US Constitution already. Sure, Blakely might be a johnny-come-lately compared to Wedge, but it's here now, and it's controlling.
Except that Article I, section 11, involves more than just the right to a jury trial. 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. [Emphasis added.] State v. Smith, 182 Or 497, 501-502 (1948)
So yes, I still believe, in the absence of any momentum and despite the years of less-than-favorable case law, that offense-specific enhancement factors must go to a Grand Jury under the Oregon Constitution. And I think that's one thing the OSC was hinting at in that footnote.
If you've gotten to the end, thank you. I hope I've persuaded the defense attorneys among you not to give up on challenges to enhancement facts, particularly the offense-specific enhancement facts that haven't been submitted to the Grand Jury. And I hope appellate attorneys won't give up either. I think the Oregon Supreme Court has given us a big, honkin' tea leaf right in Speedis, but it's up to us to get the issue to them. Nobody said it was going to be a cakewalk.