State’s Notice of Intent to Seek an Upward Departure and Other Sorrows*
Defense attorneys need to remember that the law changed substantially regarding the timing of the state’s notice.
SECTION 1. ORS 136.765 is amended to read:
136.765. In order to rely on an enhancement fact to increase the sentence that may be imposed in a criminal proceeding, the state shall notify the defendant of its intention to rely on the enhancement fact by:
(1) Pleading the enhancement fact in the accusatory instrument; or
(2) Providing written notice to the defendant of the enhancement fact, and the state’s intention to rely on it, no later than 60 days after the defendant is arraigned on an indictment, waives indictment or is held to answer following a preliminary hearing, or 14 days before trial, whichever occurs earlier, unless the parties agree otherwise or the court authorizes a later date for good cause shown.
SECTION 2. The amendments to ORS 136.765 by section 1 of this 2011 Act apply to criminal prosecutions commenced on or after the effective date of this 2011 Act.
What would constitute good cause? I imagine something unknown to the prosecutor within the deadline, but how often is the prosecutor unaware that the defendant was on supervision, or has a long criminal history of similar offenses, or that the victim was vulnerable, or the harm was greater than typical? And even if they didn’t know, whose fault is that?
A reminder of a few of the arguments that you need to make if the prosecutor does manage to get you notice in time.
Here’s a post on “on supervision.”
Here’s why an argument challenging offense-specific enhancement factors has new life.
Then of course there’s the Savastano argument. See this post too. Has anyone in your county yet subpoenaed the DA’s policy on when they give notice of these factors?
And by the way, don’t know if anyone has done this yet, but I wanted to remind everyone of a surprising twist in the law. How many jurors does it take to acquit of a CDO factor or the gun minimum? If you’ve had a trial with those factors, I’m pretty certain that the jury was told that ten people had to vote for acquittal and, alas, you probably didn’t object to that instruction. But that’s not the right answer.
We don’t normally think of these factors as Blakely enhancement factors, because the statutory requirement that they be plead and proven pre-dates Blakely and Apprendi. But they qualify as Blakely factors, which the legislature has defined as follows:
ORS 137.760(2) “Enhancement fact” means a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime.
And the number of people who need to vote to acquit of a sentence-enhancement fact is:
136.785 (3) An enhancement fact that is tried to a jury is not proven unless:
(a) The number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime; and
(b) Of the jurors who find that the state has met its burden of proof, at least the minimum number of jurors required by this subsection to prove an enhancement fact are also jurors who found the defendant guilty of the crime or alternate jurors as provided by ORS 136.773 (5).
In other words, it’s not proven unless at least 10 jurors vote for it. Only 9 equals acquittal. But if the number of jurors who convicted the defendant was only 10 to begin with, then a single juror (if out of those 10) is enough to defeat the enhancement factor.
Ask for that instruction, except if you don’t get it, except to the standard instruction, and just wait for the case to come back from the court of appeals.
*The title of this post alludes (for no particular reason) to the book First Love and Other Sorrows, by Harold Brodkey. I’ve never read the book, but the title is wonderful. The title also reminds me of an observation made by Martin Amis that a brilliant title is often a sign of a good but ultimately minor masterpiece. As I recall, his examples in support of this observation were Hangover Square and The Ballad of the Sad Cafe.
Prior to this 2011 amendment, ORS 136.765, required the prosecution only to give notice “within a reasonable time after filing the accusatory instrument.” Whatever “reasonable time” meant would be (and was) determined on a case-by-case basis. The 2011 amendment improves the situation, by specifying these 60- and 14-day time limitations–although, as Ryan points out, the amendment leaves the prosecution some wriggle room, what with its “good cause” exception to the objective time requirements. What “good cause” means will be determined on a case-by-case basis.
Both pre- and post-amendment, ORS 136.765 applies only to cases that are in a pre-guilty-phase trial status. For cases that an appellate, post-conviction, or federal habeas court has remanded for resentencing, ORS 136.765 doesn’t apply at all.
What applies instead is ORS 136.790. It says what it has always said, since the post-Blakely regime was created in 2005–the prosecution must give notice “within a reasonable time before resentencing.”
In other words, the 2011 Legislature did not amend ORS 136.790 parallel to how it amended ORS 136.765. Consequently, for cases on remand for resentencing, the 60- and 14-day time limitations expressly don’t apply. Only the “reasonable time” requirement applies.
I suppose it’s possible to argue aht courts should treat ORS 136.765′s 60- and 14-day time limitations as context, to construe the “reasonable time” requirement of ORS 136.790. But be prepared for the prosecution’s rejoinder: If the legislature had intended the 60- and 14-day time limitations to apply in resentencings, it would have said so; the fact that the legislature amended the one statute, but not the other, to create those time limitations means that it intended to impose those limitations in the one situation, but not in the other.