State v. HOLLINGQUEST, 250 P.3d 366

Defendant Hollingquest was convicted of first-degree manslaughter and felon in possession of a firearm in 2002.
The trial court imposed an upward departure sentence of 240 months for manslaughter based on judicial factfinding and a 36-month PPS; felon-in-possession sentence was shorter and concurrent.
On direct appeal, convictions were challenged; the 36-month PPS was found erroneous and the case was remanded for resentencing under ORS 138.222(5).
On remand, the court believed it could reimpose the upward departure based on prior findings, and deleted the PPS term in an amended judgment.
Defendant argued Blakely v. Washington applies, requiring jury findings for any sentence enhancement on remand.
The appellate court held that remand under ORS 138.222(5) requires resentencing and allows consideration of Blakely-based challenges; the court must determine constitutionality at resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether remand under ORS 138.222(5) allows Blakely-based challenges to be considered	Hollinquest argues remand does not require addressing Blakely issues.	Hollinquest contends Blakely challenges must be considered on remand.	Remand permits consideration of Blakely-based arguments.
Whether upward departure based on judicial factfinding was proper on remand	State contends departure based on judicial facts is permissible under remand standards.	Hollinquest argues Blakely prohibits such judicial factfinding for upward departure.	Upward departure based on judicial factfinding was improper after remand.
Whether ORS 136.792 requires a sentencing jury for enhancement facts on remand	State asserts discretion to decide on jury or not under remand statutes.	Hollinquest asserts a sentencing jury is required unless waiver/admission or prior jury findings exist.	A sentencing jury is required for enhancement facts on remand unless previously found by a jury or waived/admitted.
Whether the trial court had discretion to refuse to entertain defendant's constitutional challenges on remand	State argues the court may choose among lawful sentences.	Hollinquest argues the court should address Blakely-based challenges on remand.	The court had authority to consider constitutional arguments on remand; it may not refuse to address them if legally relevant.

State v. Edson, 329 Or. 127 (1999) (remand for restitution/resentencing when no ability to pay; clarifies ORS 138.222(5))
State v. Sauceda, 236 Or. App. 358 (2010) (remand for resentencing after error; addresses review of sentencing issues on remand)
State v. Cortes, 235 Or. App. 181 (2010) (remand for resentencing; discusses scope of on-remand issues)
State v. Davis, 216 Or. App. 456 (2007) (Blakely-based challenges on remand; review of sentencing issues)
State v. Smitherman, 200 Or. App. 383 (2005) (note on remand and sentencing issues;勿)
State v. Wilkins, 175 Or. App. 569 (2001) (discussion of remand scope and sentence issues)
State v. Hylton, 230 Or. App. 525 (2009) (OR 136.792 and jury determination on enhancement facts; remand context)
State v. Martin, 221 Or. App. 78 (2008) (discretionary sentencing standards; interplay with ORS 138.222(5))
State v. Rogers, 330 Or. 282 (2000) (limits on discretionary sentencing within constitutional constraints)
State v. Dilts, 337 Or. 645 (2004) (Blakely precludes judicial factfinding for upward departures)
Blakely v. Washington, 542 U.S. 296 (2004) (restrains judicial factfinding for sentence enhancements; jury findings required)