State v. Sanchez, 2010 Ore. App. LEXIS 1276

Sanchez was convicted of first- and second-degree rape; post-conviction relief granted and resentencing occurred in 2008.
At resentencing, the court imposed upward departure sentences based on enhancement facts.
Enhancement facts were communicated by the state via a letter and later an email; neither document was filed with the court.
Defendant moved to disallow enhancement facts, arguing they were not pleaded in an indictment and thus required grand jury findings.
The trial court permitted the enhancement facts to be tried to the resentencing jury; the jury found several enhancement facts, and the court imposed upward departure sentences.
The court affirmed, holding enhancement factors need not be pleaded in the indictment and may be submitted to the jury under ORS 136.765(2).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether enhancement facts must be pleaded in the indictment	Sanchez—enhancement facts not required in indictment; Blakely/Apprendi do not convert them into elements.	Sanchez—constitutional requirements compel grand jury indictment for enhancement facts.	Enhancement facts need not be pleaded in the indictment; jury may consider them for upward departure.

State v. Williams, 237 Or.App. 377 (2010) (subcategory sentencing facts need not be submitted to grand jury)
State v. Wagner, 305 Or. 115 (1988) (deliberation not an element of aggravated murder; sentencing factors may not be pleaded as offense elements)
State v. Johnson, 340 Or. 319 (2006) (enhancement facts may be tried to jury but need not be in indictment)
State v. Sawatzky, 339 Or. 689 (2005) (Apprendi/Blakely do not alter offense definitions; does not require indictment of enhancement factors)
Gill v. Lampert, 205 Or.App. 90 (2006) (Oregon constitution right to nature and cause of accusation; pleading need not allege enhancements)
State v. Smith, 182 Or. 497 (1948) (indictment must inform charges; elements essential by constitution; open to interpretation)