Wagner I: That Case Doesn't Mean What You Think It Does
As noted in a couple of previous Dangerous Offenders, Upward Departures and Offense-Specific Aggregation posts , the Oregon Supreme Court has granted review in State v. Reinke, and the question - based on the question presented but also the briefs that were submitted to the COA - hinges on whether offense-specific enhancement facts must be pleaded in the indictment. In one of those posts, I briefly touched on why I think the state's main argument that pleading isn't required - relying on Wagner I - is in error.
I want to use this post to explain the issue in more detail.
The Oregon Supreme Court has often looked at whether offense-specific enhancement facts are elements under Article I, section 11. If so, they'd have to be proven to a jury. But Article I, section 11, also guarantees the defendant the right to a Grand Jury indictment, and under long-standing case law interpreting that provision, elements must be pleaded.
So, it would seem to be an easy question, right? Unfortunately, the AG's office has argued - successfully to the COA - that Wagner I does not require pleading even offense-specific enhancement facts. The quote they pull from Wagner I is usually, "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."
Seems dispositive, doesn't it? Yeah, not so much actually. First, you'll really want to read the entire discussion of this issue (don't worry, it's brief).
Defendant argues that the indictment failed to allege facts that would give him notice that the death penalty would be sought and the "particular evidence of aggravating factors." Amici urge that the indictment is insufficient in failing to allege in the language of ORS 163.150(2)(a) that defendant "deliberately" caused the death of the victim. ORS 132.550(7) provides: "The indictment shall contain substantially the following:
"(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended;"The offense with which this defendant is charged is aggravated murder as defined in ORS 163.095(2)(a)(E), which is set forth at the outset of this opinion. 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.
What's missing is any reference to the Oregon Constitution or any reference to Article I, section 11. It's a purely statutory argument that's made there. That said, the Oregon Supreme Court has since addressed the issue under the Oregon Constitution, and it's those cases that we need to look at.
The issue was in fact addressed in State v. Terry, sorta. Terry looked at whether "deliberateness" was an element of aggravated murder and therefore whether it needed to be pleaded in the indictment. The court noted this was a similar issue to the one presented in Wagner, and presumably the reason it wasn't the same issue is because Wagner was decided under the statute but Terry the constitution. Nevertheless, the Terry court does quote Wagner as follows: "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." [Emphasis added.]
Terry was authored by Justice DeMuniz.
A few years later, the court decided State v. Johnson, and it reaffirmed Terry, saying, "However, nothing in those cases suggests that those questions [e.g., deliberateness] necessarily define a separate crime of capital aggravated murder and, as such, that they must be set out in the indictment. " [Emphasis added.]
In other words, the court reaffirms that the crime of conviction - aggravated murder - doesn't change regardless of the finding of deliberateness, etc. Death or no death, it's still aggravated murder.
But compare that conclusion to what the court said in State v. Wedge, in determining whether the gun minimum was an aggravating factor. Better yet, note how the court in State v. Ice described the holding in Wedge:
State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice, "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.]
I assume you see the difference. Wagner, Terry, Johnson all make a point of saying that the sentencing factors necessary to impose death are not elements, because the crime of Aggravated Murder is unchanged, regardless of whether the sentencing factors are found or not. But offense specific enhancement facts like the gun minimum - which is not a statutory element of robbery in the first degree - create a new crime.
Consequently, just like the gun minimum, sentence enhancement facts, such as harm greater than typical or vulnerable victim, are elements, because they are offense-specific factors that create a new crime (e.g., kidnapping a vulnerable victim). This new crime must be pleaded under Article I, section 11, because:
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)
And if you don't think this is an issue the Oregon Supreme Court has been waiting for the opportunity to address, then how do you explain this aside by the Oregon Supreme Court from just last year:
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).
That quote reaffirmed my belief that the OSC would take up the issue of offense-specific enhancement facts as soon as they could, and wouldn't you know it? They did just that in Reinke. The state has claimed and will continue to claim Wagner, Johnson and Terry don't require pleading in the indictment, but as noted above, those cases don't address the "new crimes" that are created by the additional allegation of offense-specific elements.