On the Multnomah County criminal docket earlier this week, I saw a number of co-defendants charged with "attempted burglary in the first degree." I don't know the facts of the case, but given the other charges, I imagine those attempted burglaries are also enhanced with allegation of "occupied dwelling" and "threatened physical harm."
In a normal burglary, those enhancements can move a level 7 burglary to a level 9. In the past, when the state has alleged those enhancements in an attempted burglary, it has been with the purpose of moving a level 5 attempted burglary to a level 7.
For the reasons below, I do not believe those enhancement factors apply to attempted burglary, and the defendant should demur or file a motion to strike.
I. THERE IS NO OAR AUTHORIZING THIS AGGRAVATING FACTOR
The state usually charges aggravating factor of "occupied dwelling" for the purpose of elevating the crime seriousness level of a Burglary. The relevant OAR reads:
Burglary I (ORS 164.225)
(1) 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.
(2) CRIME CATEGORY 8: Burglary I shall be ranked at Crime Category 8 if
(a) The offender did not cause or threaten physical injury to the victim and did not possess a deadly weapon (CC 9); but
(b) The offense was committed in an occupied dwelling.
(3) CRIME CATEGORY 7: Burglary I shall be ranked at Crime Category 7 if it cannot be ranked at Crime Category 8 or 9.
There is no comparable OAR for the crime of attempted burglary, which falls under a different statute and a different chapter in the criminal code. State v. Becker, 171 Or App 721 (2000). There is no authority for elevating the crime seriousness level for an attempted burglary. Nor is there any authority for applying the attempt statute to sentencing enhancement factors.
II. CRIME SERIOUSNESS LEVELS MUST BE AUTHORIZED BY STATUTE OR DELEGATED STATUTORY AUTHORITY
ORS 132.510 specifically states that "[the] forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by the statutes relating to criminal procedure."
ORS 137.667 authorizes the Oregon Criminal Justice Commission to make rules relating to crime seriousness levels. No other commission has been authorized to make up rules regarding crime seriousness levels. The Oregon Criminal Justice Commission has not made any rule - nor has any rule been adopted - that would allow the state to increase the crime seriousness level of an attempted burglary for any reason.
III. AN ATTEMPTED BURGLARY MEANS NO ENTRY WAS MADE
The difference between a burglary and an attempted burglary is whether entry was made in the residence. If no entry was made, but all of the other elements of burglary are met, then the defendant is guilty of no more than Attempted Burglary. Therefore, on its face, the first enhancement factor makes no sense, since it alleges that the offense took place "in an occupied dwelling," when, by definition, the offense took place entirely outside the dwelling.