State v. Barrett, 255 P.3d 472

Oregon voters adopted Article I, section 42 of the Oregon Constitution in 1999, granting crime victims rights including presence and advance notice at critical stages and to be heard at sentencing.
The legislature enacted ORS 147.500 et seq. to provide remedies for violations of victim rights, including procedures for claims and expedited review.
ORS 147.510 requires prosecutors to inform the court at the start of critical stages whether the victim is present and whether advance notice was requested or given.
The victim, the defendant's estranged wife, was charged with stalking (Or. Rev. Stat. 163.732); plea negotiations led to a guilty plea and a two-year probation sentence on February 28, with the victim not being present at sentencing.
The victim submitted an ORS 147.515 claim alleging violation of Article I, section 42(1)(a) and requested a remedy: vacate the sentence and resentencing with her participation.
The trial court found violations of Article I, section 42(1)(a), ORS 137.013, and ORS 147.510, but declined to grant the requested remedy, prompting the victim to appeal under ORS 147.537.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was a violation of Article I, section 42(1)(a).	Barrett contends a valid request for advance notice was made and thus the victim was entitled to notice at sentencing.	Barrett argues the notice was not timely triggered since the form was received after sentencing and hence no violation occurred.	Victim established a violation of advance notice.
Whether the remedy of resentencing is available and appropriate.	The victim seeks vacating the sentence and resentencing with notice and attendance.	Resentencing would be improper or unavailable due to waiver and double jeopardy concerns.	Remedy of vacating and resentencing is permissible and required.
Whether double jeopardy bars resentencing as a remedy.	DiFrancesco-like reasoning supports resentencing without violating double jeopardy.	Resentencing could amount to multiple punishments or an increased sentence barred by double jeopardy.	Double jeopardy does not bar resentencing in this context.
Whether the victim waived the remedy rights under ORS 147.533.	Waiver occurred only upon post-disposition requests or prior jeopardy.	Waiver bars relief because remedy was requested after disposition.	Waiver did not bar the remedy because it may be effected after disposition.

Vasquez v. Courtney, 272 Or. 477 (Or. 1975) (defines conviction and judgment distinctions relevant to remedy scope)
Burt v. Blumenauer, 299 Or. 55 (Or. 1985) (limits constitutional questions when statutorily available remedies exist)
Rico-Villalobos v. Giusto, 339 Or. 197 (Or. 2005) (advances subconstitutional grounding when applicable)
Li v. State of Oregon, 338 Or. 376 (Or. 2005) (recognizes subconstitutional bases may be used for decision)
State v. Conger, 319 Or. 484 (Or. 1994) (illustrates subconstitutional reasoning in decision-making)
Zockert v. Fanning, 310 Or. 514 (Or. 1990) (supports use of subconstitutional grounds)
State v. Hoffman, 236 Or. 98 (Or. 1963) (defines adjudication and final judgment concepts)
United States v. DiFrancesco, 449 U.S. 117 (U.S. 1981) (double jeopardy limits on post-conviction remedies; resentencing permissible)