State v. Alexander
255 Or. App. 594
Or. Ct. App.2013Background
- Defendant, convicted of second-degree burglary, first-degree theft, and second-degree theft, appeals an upward departure sentence on burglary.
- Indictment did not plead any sentence enhancement facts.
- Pretrial offer form listed Blakely notice with 18 enhancement items; none checked; only heading 6 circled.
- Plea hearing: defendant understood “Open sentencing”; prosecutor intended to argue Blakely enhancements; defense argued no notice.
- At sentencing, prosecution sought multiple aggravators (including failure to appear); court imposed 26-month upward departure for burglary and consecutive sentences.
- Court of Appeals held notice under ORS 136.765(2009) deficient and reversed/remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there valid ORS 136.765(2) notice of enhancement facts? | State: circling heading 6 gave notice of enhancements. | Defendant: no specific enhancement facts were provided. | No; notice did not specify enhancement facts as required. |
| Can the State rely on proposed jury instructions as notice? | State: proposed instructions satisfied notice. | Record insufficient to show defendant received such notice. | Not preserved; cannot affirm on this basis. |
| Does a “may seek” notice of enhancement factors comply with “the enhancement fact” requirement? | State: broad notice constituted notice of enhancements. | Such broad notice is not the enhancement fact; it’s insufficient. | Not sufficient; the notice must specify the enhancement fact(s). |
Key Cases Cited
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (Or. 2001) (notice must be specific; record development considerations)
- State v. Lafferty, 240 Or App 564 (Or. App. 2011) (written notice must specify enhancement facts under ORS 136.765(2))
- State v. Wick, 216 Or App 404 (Or. App. 2007) (notice describing specific conduct satisfies ORS 136.765(2))