I had previously written Might Wagner I Be Overruled By a Non-Death Case? on State v. Reinke, a case currently before the OSC that takes head on the analysis in Wagner I.
The questions in Reinke is this: (1) are offense-specific sentence enhancement facts elements and (2) if they are, do they have to be plead in the indictment?
Wagner I was the case that held that the enhancement facts that permit a death sentence do not have to be plead in the indictment in order for a sentence of death to be considered by the jury.
The appellate attorney has written a great brief, and it would obviously be a great thing if Wagner I were overruled.
However, in that earlier post, I noted that Reinke could win without overturning Wagner I. Specifically, I distinguished between Aggravated Murder (which is still the crime of Aggravated Murder, regardless of whether the enhancements are submitted to a jury) and a crime such as Kidnapping w/ a Firearm, which is a different crime than merely Kidnapping. The existence of a new, elevated crime is what, in theory, would require that offense-specific enhancements (including but not limited to the gun minimum) be plead in the indictment.
I bring all this up again, because I was reading a death case in which the attorneys sought to overrule Wagner I. The opinion, written by Gillette, made the following statement, which would seem to draw the same distinction I made in the preceding paragraph:
Defendant then argued that, because, in the present case, the state had failed to allege those two statutory "sentencing factors" in the indictment, defendant never was charged with "capital aggravated murder" and neither the judge nor the jury could convict him of or sentence him for that crime. The trial court rejected that argument and denied the motion. We see no error in the trial court's decision. This court has rejected the idea that the crime defined in ORS 163.095 -- aggravated murder -- somehow imports additional elements from ORS 163.150, the death penalty sentencing provision. See, e.g., State v. Wagner, 305 Or 115, 171-72, 752 P2d 1136 (1988), vac'd and rem'd on other grounds, 492 US 914 (1989) (Wagner I). Although defendant suggests that Wagner I conflicts with more recent federal and Oregon cases pertaining to the constitutional right to jury trial, we see no conflict. The cases that defendant cites suggest or hold that a jury must decide the "deliberateness" and "reasonable expectation of death" questions set out in ORS 163.150(1)(b)(A) because, depending on how they are answered, they may increase the punishment for the underlying offense. However, nothing in those cases suggests that those questions necessarily define a separate crime of capital aggravated murder and, as such, that they must be set out in the indictment.
Compare that quote to one from State v. Ice, where Gillette (again!) "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.]
As much as I'd like Wagner I to be overruled, I think it's important that trial attorneys making the argument that offense-specific enhancement factors must be plead in the indictment do not concede that Wagner I is fatal to their argument. It is distinguishable, as the two different quotes from Gillette make plain.