The Consequences of a Reinke Win: 2 COA cases likely overruled and 2 merger arguments with new life
In case you hadn’t heard, the OSC has granted in review in State v. Reinke. The first question in Reinke is whether offense-specific enhancement facts are “elements”, even if given a “sentence-enhancement” label by the legislature. The second is, if they are elements, whether they must be plead in the indictment. Both questions are under the Oregon Constitution and therefore separate and distinct from Blakely and Apprendi arguments.
Oral argument is set in May. We can probably expect an opinion in about a year (i.e., about the same time that — if you preserved an issue today — the defendant’s brief would be filed).
If Reinke is successful, it would throw into question at least two appellate decisions and it would likely give new fuel to a couple of merger arguments.
A quick reminder that this issue — which might seem new — actually has a long history in Oregon law. State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice, “explain[ed] that, although the statute treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime’ of first-degree robbery using a firearm. Id. at 608.” [Emphasis added.]
The first decision likely to fall if Reinke prevails is State v. Williams, 237 Ore. App. 377 (2010), where the COA upheld an amendment to a sub-category enhancement fact (that the victim “did not substantially contribute to the commission of the offense by precipitating the attack”). The COA held that — though offense-specific — the enhancement fact was not an element and therefore did not have to go through grand jury to be litigated. If sentence enhancement facts that are offense-specific must be plead in the indictment, then it would be hard to conclude that Williams was still good law.
Williams came out just over a year ago, but there’s an older, somewhat obscure case that — if reversed — would subject a number of drug indictments to a demurrer. Let’s assume you’ve got an indictment that alleges both a “commercial drug offense” and “substantial quantities.” Right now, they are considered mere sentence enhancements, but given that they are offense-specific, they would likely be considered elements if Reinke prevails. And if they were elements, they would violate the rule against having two crimes that are not “separately stated.” ORS 135.630(3). Here’s a portion of a COA opinion concluding otherwise:
We read the above language to mean that the subcategory factors required for sentencing purposes are not themselves elements of the underlying offense, but are alleged in addition to those elements. Accord State v. Stewart, 123 Ore. App. 147, 149, 859 P.2d 545 (1993), on recon 126 Ore. App. 456, 868 P.2d 794 (1994), aff’d on other grounds 321 Ore. 1, 892 P.2d 1013 (1995) (trial court properly refused proposed instruction that erroneously treated penalty enhancer as an element of the crime). Applying that holding in this context, we conclude that when an indictment properly alleges the elements of the underlying offense, the inclusion of alternative grounds for enhancing the sentence does not create additional offenses. The trial court erred in concluding that Count 1 alleges multiple offenses and in sustaining the demurrers on that basis. [Emphasis added.]
State v. Merrill, 135 Or App 408, 412-413 (1995).
If you file a demurrer under the theory rejected in Merrill — and I’ve got one if you want it — there’s a good chance Reinke will be decided before the appellate attorney has to decide whether to brief it. One way or another, Reinke should make it an easy decision for appellate counsel.
The following issue hasn’t yet made it to the COA, but it would likely be impacted by a Reinke win. Of course, it may prevail anyway.
I had mentioned that in Wedge, the OSC found that the gun minimum was an “element” of the crime. In fact, the gun minimum statute now calls it an element, though I believe at the time Wedge came out, it was considered a mere sentence enhancement factor. Anyway, assume you’ve got someone charged with Felon in Possession (with additional language of use or threatened use of a firearm) and Unlawful Use of a Weapon. Arguably, all of the elements of UUW are encompassed in the gun minimum language attached to the Felon in Possession. Therefore, they would merge on the grounds that a lesser-included offense always merges into the greater offense:
A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: “(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument.” State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).
And if you want to tell me that (2) doesn’t apply in this situation, then tell me when (2) applies but (1) does not.
A related issue is when a defendant is charged with DCS (substantial quantities) and PCS. If the DCS-heroin includes the language “the defendant possessed substantial quantities of heroin,” then all the elements of possession are alleged within the DCS, resulting in merger. Currently, the state will argue that “the defendant possessed substantial quantities of heroin” is not an element, which may not be a strong enough argument to defeat merger under Lee, but if Reinke says it is an element, then merger would seem inevitable.