OSC Grants Review in Reinke
This very long post — in journalism parlance — buried the lead. So I’m posting this post as well, because I’m assuming not everyone read to the end of the previous post, and this is potentially big news. The Oregon Supreme Court granted review in State v. Reinke, and the questions presented are:
(1) Does the Oregon Constitution require the state to plead in the indictment facts necessary to find that defendant is a dangerous offender, before a sentencing court may impose a dangerous offender sentence?
(2) If not, is the state otherwise required to include them in some type of document that is filed with the trial court?
You can go to that very long post for a breakdown of the legal issues involved, but the bottom line is that if you’ve been given notice of an offense-specific enhancement factor — and “dangerous offender” is sometimes included — then you need to object to the state going forward on that allegation if they haven’t plead it in the indictment. Whether you go bench or jury, doesn’t matter. Object beforehand that they haven’t been plead. Writing is preferable but an oral objection is better than nothing. Typical offense-specific enhancements are: harm substantially greater than typical, vulnerable victim, etc.
For further discussion, go to the long post, but in the meantime, preserve the objection.
P.S. And while you’re at it, don’t forget to make a Savastano objection as well, although that will require a bit more work ahead of trial.
Finally! Finally the court can address the conflict between COA decisions like Sanchez, and the OSC’s decision in Upton, a mandamus case, which says that the trial court erred in allowing a demurrer to an enhancement fact pled in the indictment. The reason the Upton court ruled as it did was that the court concluded that the enhancement fact is a “material element” that must be pled in the indictment (so the trial court erred in ordering it removed from the indictment). And whatever the court said about the enhancement fact at issue in Upton should apply equally to the DO factors in Reinke. That’s because the enhancement fact issue in Upton was a aggravated-departure factor, and a 1993 OSC case called State v. Davis makes clear that DO factors are aggravated-departure factors.