This сase presents the question of whether a trial court, sitting as trier of fact, may, sua sponte, convict a defendant of a lesser-included offense after first acquitting the defendant of the greater chargе where (1) neither party had requested that the lesser-included offense be considered; (2) the prosecutor had expressly eschewed pursuit of the lesser-included offense; and (3) the record demonstrates that defendant had no actual notice of the court’s consideration of the lesser-included offense before the court rendered its oral verdict. We hold that, under thosе specific circumstances, the demands of due process preclude such a result. Accordingly, we reverse.
The pertinent facts are few and undisputed. Defendant was indicted for criminally negligent homicide after he crashed his motorcycle, killing his passenger. Before trial, the prosecutor offered to allow defendant to plead guilty to that charge. The proseсutor indicated that, if defendant did not plead guilty and accept a prison sentence, the prosecutor would reindict him for the more serious charge of second-degree manslaughtеr. Defendant rejected the offer, the prosecutor reindicted defendant for second-degree manslaughter, and the case proceeded to trial. Defendant waived his right to a jury triаl, and the case was tried to the court.
After the evidentiary phase of the trial was concluded, the court recited its findings of fact and then rendered its verdict as follows:
“So we have the difference mainly between recklessly criminal negligence is the — either the person is aware of and consciously disregards it — or fails to be aware of a substantial amount of justifiable risk that the result will оccur. So in analyzing this case I really find — -find that the evidence does not rise to the level required to establish that the defendant was aware of the risk and consciously disregarded that risk. * * * So I do find the Defendant Not Guilty of the charge of Manslaughter in the Second Degree. However — I do feel that he was — did fail to be aware of a substantial amount of justifiable risk that involved what occurred and thе circumstances exists. * * * So I do enter a finding of Guilty on the charge of Criminally Negligent Homicide[.]”
*381 Defendant immediately objected on the ground that that charge was not properly before the сourt.
At his sentencing hearing, defendant submitted a written motion, challenging the trial court’s authority to enter the conviction for criminally negligent homicide on the ground that defendant had had “no notice” that the charge was before the court. Defendant also represented that
“[t]he Defendant was indicted [for criminally negligent homicide]. He was made an offer by the State that he could plead guilty to all the charges in the indictment. He responded by saying that he wanted Jury Trial on those charges. The State said ‘No. We are not going to let you have a Jury Trial on those charges. We are going to reindict you on manslaughter,’ and they did. And when they re-indicted [defendant], they specifically made a decision not to include the lesser included offenses. When we discussed this, and [the proseсutor] and I discussed this on numerous occasions, and I made it clear to him that we were not going to be requesting a negligent homicide, lesser included.”
(Emphasis added.)
The prosecutor did not dispute that representation. In response, the court noted that “you know — if you say that there is no authority to do it, there is also no authority that says you can’t, and so I guess this is a decision that the Appellate Courts are going to have to make.” The court then overruled defendant’s objection and made the following findings in support of its ruling:
“I find that nobody did make a request, so that is clear, and that the Court finding that on its own authority that it does have the right to consider the lesser included charges that are included in the main charge — charging the * * * instrument. So — and so, therefore, the Motions * * * are all denied * *
This appeal followed.
It is a basic comрonent of a defendant’s fundamental right to due process that a court may not find him guilty of a crime for which he has not received notice or an opportunity to prepare a defense.
De Jonge v. State of Oregon,
As the Supreme Court explained in
State v. Washington,
The foregoing decisions establish that, under ORS 136.465, an indictment for a greater offense necessarily
*383
places a defendаnt on notice of the possibility of his being convicted of a lesser-included offense. However, the application of that statute to the particular facts of a case is subject to the overarching due process concern identified in
De Jonge:
that a defendant must have notice and an opportunity to prepare a defense.
In contrast, here it is uncontested that defendаnt had no notice that the trial court might enter a conviction for criminally negligent homicide. Rather, defendant had every reason to believe that it would not. Indeed, defendant proceеded to trial, after the prosecutor had refused to go to a jury trial on a charge of criminally negligent homicide, on the reasonable belief that the prosecutor had eschewed pursuit of *384 that crime by reindicting him for the greater offense of second-degree manslaughter. The record reflects defendant’s surprise and alarm at being convicted of the lesser offense of сriminally negligent homicide; both defendant’s opening statement and closing argument centered on the recklessness element of manslaughter, and the court denied defendant’s motion for a judgment оf acquittal because, at that stage of the proceeding, the court found the evidence sufficient to support the finding of a reckless mens rea. At no point in the record did defendant or the prosecutor argue, or the court suggest, that the lesser-included offense, which involved a different mental state, was or should have been under consideration. What is more, as discussed, the prosecutor specifically informed defendant that “we are not going to let you have a jury trial on [criminally negligent homicide].”
That unique confluence of factors in this case, each reinforcing the conclusion that defendant lacked actual notice that the lesser-included offense was under consideration by the trial court, persuades us that the overriding principles of due process must supplant the usually supportable legal fiction of ORS 136.465. Our disposition of this case makes it unnecessary to consider defendant’s contention that the evidence was insufficient to support a conviction for second-degree manslaughter.
Reversed and remanded.
Notes
Our opinion in Cook does not describe the trial or specify whether the defendant had notice of the trial court’s consideration of the lesser-included offense. The defendant in Cook did not argue that he lacked notice, only that the trial court lacked jurisdiction.