The Nonsensical Distinction: Elements and Sentence Enhancements
Compare this quote:
We read the above language to mean that the subcategory factors required for sentencing purposes are not themselves elements of the underlying offense, but are alleged in addition to those elements.
State v. Merrill, 135 Or App 408, 412-413 (1995).
With this one:
This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an "element" of the offense and one that is a "sentencing factor." See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605.
Southern Union v United States (June 21, 2012)
Since the Merrill opinion was issued, the COA has been consistent that "sentence enhancement" facts are not elements. We see the COA holding onto that distinction in cases like St v Travalini, 'St v Williams and St v Sanchez. This distinction can't be justified any longer. The quote from Southern Union should make that plain.
But it wasn't really logical when the opinion was issued either, in light of the Wedge opinion, which was decided under the Oregon Constitution.
All that said, let's leave case law out of it. Just look at it logically. We are now all agreed that, if a defendant is a presumptive 7B on the sentencing guidelines, the federal constitution requires a jury to make findings that would double his presumptive sentence ("upward durational departure"). But somehow there are those among us who see a logical and legal difference if the finding of fact would elevate this defendant's gridblock from a 7B to a 9B, thinking the federal constitution doesn't compel a jury finding.
In both examples:
Sentence increased? Check.
Increase based on a factual finding? Check.
Increase couldn't have occurred without the factual finding? Check.
It really is that simple.
I mentioned Wedge above. That opinion held that the "gun minimun" was in fact an element of the underlying crime, despite possessing all the trappings of a "sentence enhancement." You really only need to know three things about Wedge: (1) it was decided under the Oregon Constitution; (2) the legislative label is irrelevant to whether something is a sentence enhancement or an element; and (3) the gun minimum did not enhance the sentence, it only raised the floor. (The last fact is important because it's one of two main distinctions between a state constitutional analysis and a federal one.) Wedge has never been overruled. There's never been a hint of overruling it. But somehow the COA still draws a distinction between sentence enhancements and elements.
The Oregon Supreme Court has a rare opportunity to erase the nonsensical distinction. At issue in State v. Reinke, under advisement since May, is whether a particular offense-specific factor of Dangerous Offender must be pleaded in the indictment. However the court decides on the pleading issue, it should similarly reject what SCOTUS has "uniformly rejected": that there is any meaningful constitutional difference between elements and sentence enhancement facts.