State v. Engerseth
255 Or. App. 765
Or. Ct. App.2013Background
- Defendant was convicted after a jury trial of unlawful use of a weapon, tampering with a witness, and menacing.
- The sentencing court imposed an upward departure of 60 months for unlawful use of a weapon based on the fact that defendant was 'on supervision' when the crime occurred.
- An amended judgment was entered after defendant moved to correct errors under ORS 138.083(1)(a); the departure sentence remained.
- Defendant appealed, challenging the upward departure as violating ORS 136.773(1) for lack of a written jury trial waiver on the enhancement fact.
- The State conceded the court did not submit the enhancement fact to the jury and failed to obtain a written waiver, but urged this court not to correct the error.
- The court held, for preservation and discretionary reasons, that the issue was not preserved and would not exercise its discretion to correct it, affirming the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to obtain a written jury waiver on the enhancement fact invalidates the departure | State/Porter argues ORS 136.773(1) requires waiver and that lack of waiver taints the sentence | Porter contends the court abused ORS 136.773(1) and the error should be corrected | Not preserved; even if plain, court would not correct |
| Preservation of sentencing error after ORS 138.083 motion | State maintains error preserved only if raised at sentencing | Defendant argues post-judgment motion preserves predicate error | Post-judgment motion does not preserve predicate sentencing error |
| Whether the error constitutes plain error and warrants correction under ORAP 5.45 | State concedes waiver but argues for correction under plain error standard | Defendant seeks correction for plain error under ORAP 5.45 | We assume plain error but decline to correct; factors favor preserving the judgment |
Key Cases Cited
- State v. Layton, 163 Or App 37 (1999) (post-judgment issues cannot retroactively preserve sentencing error)
- State v. Hammond, 218 Or App 574 (2008) (unpreserved prejudgment error cannot be cured by post-judgment motion)
- State v. Ramirez, 343 Or 505 (2007) (court should not exercise discretion to correct harmless sentencing error)
- State v. Porter, 202 Or App 622 (2005) (stipulation can bind parties and show lack of prejudice)
- State v. Gornick, 340 Or 160 (2006) (plain error must appear on the face of the record)
- State v. Barber, 343 Or 525 (2007) (limits of correction under ORS 136.773; not mandatory to correct)
- Harding, 222 Or App 415 (2008) (post-judgment arguments can preserve limited issues about corrections)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (discretion to correct plain error under ORAP 5.45)
- State v. Layton, 163 Or App 37 (1999) (see above for preservation limits)