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Upward Departure Challenges

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by: Ryan Scott • August 29, 2017 • no comments

Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.

Objections to threat of actual violence and use of a weapon

Classic situation: state alleges "use of a weapon" or "threat of violence" for a crime that necessarily requires a weapon or a threat of violence. Not allowed. State v. Torres, 182 Or App 156, 48 P3d 170 (2002); State v. Wilson, 111 Or App 147, 152, 826 P2d 1010 (1992). Depending on the crime, "vulnerable victim" might also be double-counting.

Factual aspects of a crime that constitute elements of the crime generally may not be used as aggravating factors as well, "unless the aspect is 'significantly different from the usual criminal conduct captured by the aspect of the crime.'" State v. Guthrie, 112 Ore. App. 102, 106, 828 P2d 462 (1992) (quoting OAR 213-008-0002(2)). In this case, defendant violated the stalking protective order by causing his niece to deliver a gift card to the victim, which was intended as a birthday gift for his son who was in the victim's custody, thus violating the order's prohibition on third-party contacts. Nothing in the record indicates that the conduct was "significantly different from the usual criminal conduct captured by the aspect of the crime".

State v. Gallino, 227 Or App 304 (2009)

Unenumerated Factors

Because these factors are "unenumerated" (i.e, not listed in the statutes or OARs), whether these are constitutionally permitted depends on whether either of them had ever been approved in a prior appellate decision.

Under the Due Process Clause of the Fourteenth Amendment, a criminal statute will be unconstitutionally vague if it fails to provide "fair warning" of the acts that will expose a person to criminal penalties; that is, a statute must "give [a] person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he [or she] may act accordingly." Illig-Renn, 341 Or. at 241, 142 P.3d 62 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). As the United States Supreme Court has explained, however, even if an "otherwise uncertain statute," standing alone, would fail to provide constitutionally adequate notice of the acts that expose a person to criminal liability, the statute will satisfy due process if "[a] prior judicial decision has fairly disclosed [the charged conduct] to be within [the statute's] scope." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); accord Rogers v. Tennessee, 532 U.S. 451, 459, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (acknowledging that rule).

State v. Speedis

And with all enhancement factors, you don't want to just challenge the factor.

"To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines."

State v. Davilla