328 P.3d 792
Or. Ct. App.2014Background
- Defendant convicted of first-degree robbery after representing himself with a court-appointed legal advisor; state sought an upward departure based on aggravating (enhancement) facts.
- Defendant orally waived his right to a jury determination of enhancement facts during trial and again during deliberations; no written waiver was executed.
- At sentencing, the court relied on certified prior-conviction records and defendant’s admissions (e.g., prior prison time, supervised release) and imposed an upward departure sentence to 114 months.
- Defendant appealed, arguing the court erred by accepting an oral waiver rather than the written waiver required by ORS 136.770/136.773 and (arguably) Article I, § 11 of the Oregon Constitution.
- The appellate court treated the statutory written-waiver failure as plain error but declined to exercise discretion to remedy it under Ailes because defendant repeatedly agreed to the court deciding the factors and the enhancement facts were overwhelming.
- The court concluded the asserted Article I, § 11 error was not plain because its applicability to Blakely/Apprendi sentencing facts is reasonably in dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to obtain a written waiver violated ORS 136.770/136.773 | State: written waiver required by statute; the court’s duty is clear | Defendant: trial court erred by accepting only an oral waiver; statutory plain error requiring correction | Court: noncompliance was plain error but declined to correct under Ailes discretion because defendant repeatedly consented and evidence of enhancements was overwhelming |
| Whether Article I, § 11’s written-waiver requirement applied to Blakely/Apprendi enhancement facts | State: Article I, § 11 may not cover the same set of sentencing facts as the Sixth Amendment; applicability is disputed | Defendant: Article I, § 11’s written-waiver rule applies and Barber requires correction for lack of written waiver | Court: applicability of Article I, § 11 here is reasonably in dispute, so constitutional error is not plain; no categorical relief under Barber |
| Whether appellate court must correct unpreserved written-waiver error when constitutional | Defendant: Barber compels reversal/remand for constitutional written-waiver violations | State: Barber is limited to Article I, § 11 errors and does not automatically apply to statutory waiver or Sixth Amendment issues | Court: Barber’s mandatory rule applies only to Article I, § 11 errors; here statute error was discretionary under Ailes and constitutional error was not plain |
| Whether remand for resentencing is required in any event | Defendant: remand necessary because waiver form missing | State: remand unnecessary given defendant’s acquiescence and overwhelming evidence | Court: remand would not serve ends of justice; sentence affirmed |
Key Cases Cited
- State v. Barber, 343 Or. 525 (Oreg. 2007) (Article I, § 11 requires written jury-waiver before trial and appellate courts may not decline to correct such constitutional waiver errors)
- State v. Brown, 310 Or. 347 (Oreg. 1990) (standard for plain error review)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (Oreg. 1991) (factors for exercising appellate discretion to correct plain error)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (limits judicial factfinding for upward departures under Sixth Amendment)
- State v. Ice, 343 Or. 248 (Oreg. 2007) (framework for Article I, § 11 analysis distinguishing elements from sentencing/character facts)
- State v. Fults, 343 Or. 515 (Oreg. 2007) (discussion of preservation and appellate correction principles)