State V Reinke

May 3, 2012
STATE

v.

LEONARD LLOYD REINKE

S059760
A144138

IN THE SUPREME COURT OF THE STATE OF OREGON

Multnomah County Circuit Court
Case No. 090130185

CA A144138
STATE OF OREGON,

Plaintiff-Respondent,
Respondent on Review,

v.

LEONARD LLOYD REINKE,

Defendant-Appellant
Petitioner on Review.

PETITION FOR REVIEW OF DEFENDANT-APPELLANT

Petition to review the decision of the Court of Appeals
on an appeal from a judgment of the Circuit Court
for Multnomah County
Honorable Richard C. Baldwin, Judge

Opinion Filed: August 10, 2011
Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge

Brief on Merits will be filed if review is allowed.

PETER GARTLAN #870467
Chief Defender
ERNEST G. LANNET #013248
Chief Deputy Defender
Office of Public Defense Services
1175 Court Street NE
Salem, OR 97301
Ernest.Lannet@opds.state.or.us
Phone: (503) 378-3349
Attorneys for Petitioner on Review
JOHN R. KROGER #077207
Attorney General
MARY H. WILLIAMS #911241
Solicitor General
INGE WELLS #881137
Assistant Attorney General
400 Justice Building
Salem, OR 97301
inge.d.wells@doj.state.or.us
Phone: (503) 378-4402
Attorneys for Respondent on Review

54733 09/11
September 23, 2011 03:31 PM
i
TABLE OF CONTENTS

STATEMENT OF HISTORICAL AND PROCEDURAL FACTS.....................1

QUESTIONS PRESENTED AND PROPOSED RULES OF LAW...................5

REASONS FOR ALLOWING REVIEW............................................................6

ARGUMENT........................................................................................................7

A. The state was required to plead the dangerous offender factors in
general, or at least the offense-specific factor, in the indictment........8

B. The state must plead dangerous offender facts with at minimum a
filing submitted to the trial court. ......................................................12

CONCLUSION...................................................................................................16

TABLE OF AUTHORITIES
Cases
Alery v. Alery,
193 Or 336, 238 P2d 771 (1951).....................................................................14

Apprendi v. New Jersey,
530 US 466, 120 S Ct 2348, 137 L Ed 2d 435 (2000) ..................... 8, 9, 11, 12

Blakely v. Washington,
542 US 296, 124 S Ct 253 1, 159 L Ed 2d 403 (2004) .................................8, 9

Cunningham v. California,
549 US 270, 127 S Ct 856, 166 L Ed 2d 865 (2007) ........................................9

Evans v. Maryland,
886 A2d 562 (2005), cert den, 546 US 1219, 126 S Ct 1442,
164 L Ed 2d 141 (2006) ..................................................................................11

Merril v. Gladden,
216 Or 460, 337 P2d 774 (1959).....................................................................10

ii
Oregonian Pub. Co. v. OLeary,
303 Or 297, 736 P2d 173 (1987).....................................................................15

Ring v. Arizona,
536 US 584, 122 S Ct 2428, 153 L Ed 2d 556 (2002) ............................... 9, 11

State of Oregon v. Leonard Lloyd Reinke,
245 Or App 33, ___ P3d ___ (2011).................................................................1

State v. Bacon,
238 Or App 575, 242 P3d 734 (2010)...............................................................6

State v. Cole,
238 Or App 573, 242 P3d 734 (2010), rev den, 350 Or 230 (2011).................6

State v. Dinsmore,
200 Or App 432, 116 P3d 226 (2005).............................................................11

State v. Evans,
238 Or App 523, 242 P3d 738 (2010), rev den, 350 Or 130 (2011).................6

State v. Fortin,
178 NJ 540, 843 A2d 974 (2004)....................................................................10

State v. Garcia-Morales,
244 Or App 136, 257 P3d 1021 (2011).............................................................6

State v. Guyette,
239 Or App 304, 243 P3d 1216 (2010).............................................................6

State v. Ice,
343 Or 248, 170 P3d 1049 (2007), revd on other grounds sum nom
Oregon v. Ice, 129 S Ct 711, 172 L Ed 2d 517 (2009) .....................................7

State v. Jess,
117 Hawaii 381, 184 P3d 133 (2008) ............................................................10

State v. Miller,
269 Or 328, 524 P2d 1399 (1974)...................................................................14

iii
State v. Quinn,
290 Or 383, 623 P2d 630 (1981).....................................................................11

State v. Sanchez,
238 Or App 259, 242 P3d 692 (2010), rev den, 349 Or 655 (2011).............5, 6

State v. Smith,
182 Or 497, 188 P2d 998 (1948).....................................................................10

State v. Steward,
239 Or App 217, 244 P3d 816 (2010)...............................................................6

State v. Wagner,
305 Or 115, 752 P2d 1136 (1988), vacd on other grounds, 492 US 914,
109 S Ct 3235, 106 L Ed 2d 583 (1989) .........................................................12

State v. Wedge,
293 Or 598, 652 P2d 773 (1982).....................................................................11

State v. Wimber,
315 Or 103, 843 P2d 424 (1992).....................................................................10

Weatherspoon v. Allstate Ins. Co.,
193 Or App 330, 89 P3d 1277 (2004).............................................................13
Constitutional Provisions and Statutes
US Const, Amend VI ................................................................................. 8, 9, 10

Or Const, Art I, 10 ...........................................................................................15

Or Const, Art I, 11 ................................................................................ 9, 10, 11

Or Const, Art VII (Amended), 5......................................................... 10, 12, 11

ORS 132.410.......................................................................................................14

ORS 132.550.......................................................................................................14

ORS 136.760.......................................................................................................13

ORS 136.765............................................................................................ 8, 10, 14
iv

ORS 161.725........................................................................................ 1, 2, 3, 4, 7

ORS 161.737.........................................................................................................4

ORS 163.225.....................................................................................................3, 7

ORS 163.765.......................................................................................................12
Other Authorities
ORAP 9.07............................................................................................................6

PETITION FOR REVIEW

Petitioner on review, defendant-appellant below and defendant hereafter,
respectfully asks this court to review and reverse the decision of the Court of
Appeals in State of Oregon v. Leonard Lloyd Reinke, 245 Or App 33, ___ P3d
___ (2011). The Court of Appeals affirmed defendants convictions but
reversed and remanded the case for resentencing in a per curiam opinion on
August 10, 2011. A copy of the decision of the Court of Appeals is attached at
ER 1-2.
The issue on appeal is whether facts used to impose a dangerous offender
sentence pursuant to ORS 161.725 must be pleaded in the indictment or, at
minimum, filed in the trial court.

STATEMENT OF HISTORICAL AND PROCEDURAL FACTS
The facts material to the issues on appeal are primarily procedural. The
state charged defendant with, in part, the Class B felony of kidnapping in the
second degree. Indictment (set out at Appellants Opening Brief (App Br) at
ER-1-3). Approximately 18 weeks before trial, the deputy district attorney sent
defendants attorney a letter by facsimile. The letter stated, in pertinent part:
Re: State v. Leonard Reinke
09-01-30185
Dear Sir,
The purpose of this letter is to inform you that in the event
the subject referenced case goes to trial the District Attorneys
2
Office plans on seeking an upward departure sentence. * * * .
Furthermore, in the event of a guilty finding on any of the felony
counts the state will seek a Dangerous Offender sentence pursuant
to ORS 161.725, 161.735 and 161.737.
Ex 101 (set out at App Br at ER-4).
At sentencing, defendant argued, in pertinent part, that the states notice
by facsimile was constitutionally insufficient to give the trial court jurisdiction
to impose a dangerous offender sentence because the dangerous offender
predicates in general and, alternatively, the offense-specific dangerous offender
predicates specifically (1) were not pleaded in the indictment, (2) impermissibly
amended the indictment, (3) were not filed in the trial court, and (4) were not
subjected to judicial review. Tr 510-17 (set out at App Br at ER-5-12).
On the record at sentencing, the trial court pronounced the following
sentences:
THE COURT: All right. The Court concludes that
defendant has received adequate notice of the States intent to seek
sentencing under the Dangerous Offender Statute, and will follow
the recommendation of the presentence investigation report finding
Mr. Reinke to be a dangerous offender, with the limitation of the
primary offense. The Court imposes 280 months.
Also, follows the recommendation by imposing 30 months
on the additional counts, 10, 11 and 17, to be served concurrent to
Count 15, which is the primary count, where the Court has
imposed 280 months.
The Court adopts Dr. Colistros findings in their entirety,
which includes a finding that Mr. Reinke meets the diagnosis of
Antisocial Personality Disorder, and has a propensity towards
crimes that seriously endanger the life or safety of others.
3
Based on the criminal history, this case, and the entire
record, the Court also finds that Mr. Reinke is a highly dangerous
offender; that the risk of future violent person crimes to other
members of the public is very high; and that the public is only
reasonably protected by application of the Dangerous Offender
Statute.
Tr 528-29.
The trial court (ultimately) entered judgment imposed the following
sentence on Count 15:
Count 15: Kidnapping in the Second Degree
Count number 15, Kidnapping in the Second Degree, ORS
163.225, a Class B Felony, committed on or about 01/08/2009.
* * * .
Sentencing Guidelines
The Crime Severity Classification (CSC) on Count Number 15 is
9 and the Criminal History Classification (CHC) is A.
This sentence is pursuant to the following special factors:
Sentence pursuant to ORS 161.725, 161.737
Sentence pursuant to ORS 137.700
Post prison - ORS l44.232(4)
Incarceration
Defendant is sentenced to the custody of Oregon Department of
Corrections for a period of 280 month(s). Defendant is remanded
to the custody of the Multnomah County Sheriff for transportation
to the Oregon Department of Corrections for service of this
sentence.
Defendant may receive credit for time served. The defendant
may not be considered by the executing or releasing authority for
any form of reduction in sentence, temporary leave from custody,
4
work release, or program of conditional or supervised release
authorized by law for which the defendant is otherwise eligible at
the time of sentencing. The defendant may not be considered for
release on post-prison supervision under ORS 42l.508(4) upon
successful completion of an alternative incarceration program.
Post-Prison Supervision
The term of Post-Prison Supervision is 280 month(s) minus time
actually served pursuant to ORS 144.232(4). If defendant violates
any of the conditions of post-prison supervision, the defendant
shall be subject to sanctions including the possibility of additional
imprisonment in accordance with the rules of the State Sentencing
Guidelines Board.
The court recommends as a condition of post-prison supervision:
Pursuant specifically to ORS 144.232(4) and not ORS
144.103.
ER-25-26.
Defendant appealed, challenging the dangerous offender sentence on two
grounds. First, defendant argued as a claim of error apparent on the record
(plain error) that the trial court failed to impose both a determinate and
indeterminate term as required by ORS 161.725 to 161.737 (the dangerous
offender statutes). App Br at 13-22. Second, defendant maintained that the
trial court lacked authority to impose any dangerous offender sentence because
the state failed to plead the facts the facts necessary to impose find that a
defendant is a dangerous offender in the indictment or, at minimum, in a
pleading filed in the trial court. App Br at 22-31.
5
The Court of Appeals accepted the states concession of error as to
defendants first argument and rejected defendants constitutional claims
without discussion, relying on State v. Sanchez, 238 Or App 259, 242 P3d 692
(2010), rev den, 349 Or 655 (2011).

QUESTIONS PRESENTED AND PROPOSED RULES OF LAW
First Question Presented.
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?
Proposed Rule of Law.
Yes, facts necessary to declare a defendant a dangerous offender are the
equivalent of elements. They must be pleaded in the normal manner of
pleading in criminal cases, i.e., through grand jury indictment.
Second Question Presented.
Even if dangerous offender facts need not be pleaded in an indictment,
must the state, at minimum, include them in some filing in the trial court.
Proposed Rule of Law.
Yes, facts alleged to give the trial court authority to impose a dangerous
offender sentence must be filed as some sort of pleadings before the trial court
has authority to impose a dangerous offender based on those allegations.
6
REASONS FOR ALLOWING REVIEW
The question is one of first impression for this court, involves
constitutional and statutory interpretation, and involves interpretation of this
courts prior jurisprudence. ORAP 9.07(1)(a), (1)(b), and (5). The Oregon
Court of Appeals has relied on Sanchez or expanded upon its reasoning in
numerous cases without a decision from this court, including State v. Guyette,
239 Or App 304, 243 P3d 1216 (2010); State v. Steward, 239 Or App 217, 244
P3d 816 (2010); State v. Bacon, 238 Or App 575, 242 P3d 734 (2010); State v.
Cole, 238 Or App 573, 242 P3d 734 (2010), rev den, 350 Or 230 (2011); State
v. Evans, 238 Or App 523, 242 P3d 738 (2010), rev den, 350 Or 130 (2011);
and Sanchez, 238 Or App 259. ORAP 9.07(2) and (6). Currently, this court has
at least one petition pending before it that contains a similar challenge with
respect to facts necessary to impose an upward departure sentence for a felony
conviction. State v. Garcia-Morales, 244 Or App 136, 257 P3d 1021 (2011).
As expounded in the argument below, the Court of Appeals opinion in
this case misunderstands the law, and misinterprets this courts prior case
holdings. ORAP 9.07(14). The issue is preserved and was thoroughly briefed
below. ORAP 9.07(7), (8), and (15).

7
ARGUMENT
The trial court imposed a dangerous offender sentence on Count 15, a
conviction for kidnapping in the second degree, a Class B felony. ORS
163.225(3). In order to impose a dangerous offender sentence on a Class B
felony, the fact finder (here, the trial court) was required to find the following
facts:
[B]ecause of the dangerousness of the defendant an extended
period of confined correctional treatment or custody is required for
the protection of the public * * * . ORS 161.725(1).
The defendant is being sentenced for a felony that seriously
endangered the life or safety of another[.] ORS 161.725(1)(b)
[T]he defendant has been previously convicted of a felony not
related to the instant crime as a single criminal episode * * * .
ORS 161.725(1)(b).
[T]he defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the
life or safety of another. ORS 161.725(1)(b).
Those four facts involve three offender-related facts (dangerousness, prior
felony, and disorder) and one offense-related fact (the instant felony seriously
endangered another). In recognition that this court has treated offense-related
facts differently than offender-related facts for constitutional purposes, see State
v. Ice, 343 Or 248, 256-60, 170 P3d 1049 (2007), revd on other grounds sum
nom Oregon v. Ice, 129 S Ct 711, 172 L Ed 2d 517 (2009) (so discussing),
defendant presents alternative arguments, one faulting the states notice of the
8
facts generally and one faulting the states notice of the offense-related fact
only.
A. The state was required to plead the dangerous offender factors
in general, or at least the offense-specific factor, in the
indictment.
Following Blakely v. Washington, 542 US 296, 124 S Ct 253 1, 159 L Ed
2d 403 (2004), the Oregon legislature took steps to create a procedure by which
the state could seek departure sentences or other sentence enhancements that
required factfinding. SB 528 (2005). Under those procedures, the state is
required to provide the defendant with, at a minimum, written notice
regarding its intent to seek a sentence enhancement. ORS 136.765 provides:
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) Within a reasonable time after filing the accusatory
instrument, providing written notice to the defendant of the
enhancement fact and the states intention to rely on it.
The central issue in this case is the minimum constitutionally acceptable
standard of written notice for enhancement factors, and whether subsection
(2) of ORS 136.765 is reconcilable with the constitution.
The Sixth Amendment rule from Apprendi v. New Jersey, 530 US 466,
490, 120 S Ct 2348, 137 L Ed 2d 435 (2000), is direct and concise:
9
Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.
The statutory maximum for Apprendi purposes means the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. Blakely v. Washington, 542 US 296,
301, 124 S Ct 253 1, 159 L Ed 2d 403 (2004) (emphasis in the original;
citations omitted). The United State Supreme Court has repeatedly held that
facts that increase a defendants punishment for an offense are functionally
elements of an aggravated offense under the Sixth Amendment. Cunningham
v. California, 549 US 270, 293, 127 S Ct 856, 166 L Ed 2d 865 (2007); Blakely,
542 US at 304-05; Ring v. Arizona, 536 US 584, 603-09, 122 S Ct 2428, 153 L
Ed 2d 556 (2002); Apprendi, 530 US at 483 n 10, 491-97.
Article I, section 11, of the Oregon Constitution requires that all material
elements of a felony crime must be found by the grand jury, absent a wavier of
indictment or a preliminary hearing:
Section 11 of Article I of the state constitution guarantees
to every person accused of crime the right to demand the nature
and cause of the accusation against him. We have recognized that
this guaranty is absolute and is peremptorily binding upon the
courts, but we have held that it does not prevent the legislature
from providing for the simplification of indictments through the
elimination of unnecessary verbiage. * * * Simplification of
pleading may be of benefit to an accused, as it tends to clarify the
charge against him, but it has been held that the legislature may
not constitutionally authorize the omission from an indictment of
10
allegations necessary to describe a specific crime. It is not within
the power of the legislature to declare that to be an indictment
which does not set forth those elements of a criminal offense
required by the constitution to be contained in an indictment.
State v. Smith, 182 Or 497, 501-02, 188 P2d 998 (1948) (citations omitted)
(emphasis added). Further, the Oregon Supreme Court has held that [i]t is the
general rule, and we believe the better rule, that where the imposition of [a]
higher sentence may be justified because of aggravation, the aggravation relied
upon as calling for the higher sentence must be charged in the indictment.
Merril v. Gladden, 216 Or 460, 468, 337 P2d 774 (1959).
Additionally, under Article VII (Amended), section 5, of the Oregon
Constitution, the state may not make a substantive amendment to an indictment
unless the grand jury makes the amendment. State v. Wimber, 315 Or 103, 115,
843 P2d 424 (1992).
Here, irrespective of any authority conferred by ORS 136.765(2), the
state violated Article I, section 11, when it sought to rely on facts that were not
presented to the grand jury and pleaded in the indictment to impose a dangerous
offender sentence. Because those facts are indisputably elements of
aggravated offenses under the Sixth Amendment, the Oregon Constitution
requires the state to plead them in an indictment. See State v. Fortin, 178 NJ
540, 843 A2d 974 (2004) (so holding under New Jersey Constitution); see also
State v. Jess, 117 Hawaii 381, 184 P3d 133, 144-45 (2008) (so holding under
11
Hawaii Constitution); but see Evans v. Maryland, 886 A2d 562, 573-74 (2005),
cert den, 546 US 1219, 126 S Ct 1442, 164 L Ed 2d 141 (2006) (noting that a
majority of jurisdictions have concluded that Ring and Apprendi do not require
a state to plead aggravating facts in an indictment). That is, when the state
omits those facts from an indictment, a defendant can admit to the facts in the
indictment and be innocent of the aggravated offense.
The state could not submit the dangerous offender facts to the jury unless
the grand jury amended the indictment. State v. Dinsmore, 200 Or App 432,
437, 116 P3d 226 (2005). When the court permitted the state to proceed on a
notice sent by fax of dangerous offender facts, it violated Article VII
(Amended), section 5, because the enhancement facts substantively amended
the original charging instrument. Thus, the trial court erred when it considered
the dangerous offender facts and imposed a dangerous offender sentence.
Alternatively, because imposition of a dangerous offender sentence
required the trial court to find an offense-related fact (that the felony seriously
endangered another), the state was required to allege that fact in the indictment.
See State v. Wedge, 293 Or 598, 607-09, 652 P2d 773 (1982) (because
enhanced penalty was to be imposed upon a determination of offense-related
fact, the fact implicated Article I, section 11); State v. Quinn, 290 Or 383, 407,
623 P2d 630 (1981) (same); but see, e.g., State v. Wagner, 305 Or 115, 172, 752
P2d 1136 (1988), vacd on other grounds, 492 US 914, 109 S Ct 3235, 106 L
12
Ed 2d 583 (1989) (There is no requirement of pleading in an indictment that
requires the indictment to set forth possible penalties that the law may fix for
guilt on a particular charge.).
B. The state must plead dangerous offender facts with at
minimum a filing submitted to the trial court.
Notably absent from ORS 163.765(2) is any requirement that the
sentence enhancement factors be submitted to the court in a formalized
pleading, or otherwise be made part of the public record, as would the filing of
an accusatory instrument. However, the states reliance on enhancement factors
implicates constitutional and due process concerns. See Apprendi, 530 US at
483 n 10, 491-97. Accordingly, the constitution demands notice related to those
factors. But notice to the defendant alone is insufficient. For a court to have
jurisdiction and authority to sentence based upon those factors, the factors must
be formally submitted to the court. A requirement to only inform the defendant
does nothing to confer jurisdiction upon the court.
Amended Article VII, section 5, of the Oregon Constitution requires
judicial oversight of all criminal accusations. Criminal charges are not the sole
province of the prosecutor. Rather, the prosecutor merely proffers the
accusatory instrument formally to a court. Just as a trial court would lack
jurisdiction and authority to criminally convict someone on uncharged conduct,
13
it lacks such jurisdiction and authority to enhance a sentence based on factors
not formally presented in the equivalent of an accusatory instrument.
Sentencing enhancement facts carry great legal import; in many criminal
litigations, the central dispute is the presence, or absence, of those facts.
Because of their central place in criminal charging, the Oregon Constitution
requires that those facts be subject to judicial oversight.
This court has explained the difference between procedural statutes that
are directory in nature and procedural statutes that are jurisdictional in nature:
In reaching a conclusion as to what statutory provisions are
jurisdictional, a distinction may be made between procedures
which are required both by statute and also by the due process
clause of the constitution on the one hand, and procedures required
by statute alone, over and beyond anything rendered necessary by
the constitution, on the other. * * * Those requirements of statute
which are essential to due process are, of course, jurisdictional, and
we think that statutory requirements over and beyond the bare
necessities of due process may also be jurisdictional, but only if it
is the legislative intent to make them so.
Weatherspoon v. Allstate Ins. Co., 193 Or App 330, 335, 89 P3d 1277 (2004)
(citations omitted).
The legislatures definitions even acknowledge the constitutional
ramifications of the process. ORS 136.760(2). Therefore, the statute has
jurisdictional import. Accordingly, based on the legislatures statutory
guidance, it is clear that the trial court lacks jurisdiction to rely on an
14
enhancement fact unless the state meets its jurisdictional obligations described
under ORS 136.765.
The notice provisions created under ORS 136.765 act as a jurisdictional
mechanism that provides all individuals with constitutionally sufficient notice
and gives the trial court authority to act. But subsection (2) fails to adequately
confer jurisdiction upon the trial court by failing to require a document alleging
the enhancements facts to be formally submitted to the court and made part of
the public record.
Because enhancement facts frame a central issue of criminal litigation,
the proper place for the state to set them forth is in a pleading. As this court
has held, it is the pleading that frames the issues for litigation. State v. Miller,
269 Or 328, 331 n 2, 524 P2d 1399 (1974) (The fundamental role of a pleading
is to give an opposing party notice of the pleaders position concerning the facts
and law so that the opposing party can begin to prepare his defense. A pleading
thus both defines and limits the areas of consideration at a trial * * *.)
A central feature of a pleading, for purposes of both civil and criminal
law, is its existence as public record, and its filing with a court. See e.g., Alery
v. Alery, 193 Or 336, 342, 238 P2d 771 (1951) (holding that pleadings in
property dispute had no legal effect until filed). ORS 132.410 requires that
criminal accusatory instruments shall be filed with the clerk of the court, in
whose office it shall remain as a public record. Likewise, ORS 132.550,
15
which sets forth the content requirements for indictments, requires that a valid
indictment include the date the indictment is filed with the clerk of the court.
Finally, by failing to require the enhancements facts to be pled in a public
record, subsection (2) of the statute violates Article I, section 10, of the Oregon
Constitution, which states: No court shall be secret, but justice shall be
administered, openly and without purchase, completely and without delay
* * *.
To be clear, defendant is the first to acknowledge that no published
Oregon decision has interpreted this constitutional provision as requiring the
public filing of sentence enhancement facts. Nevertheless, that this general
constitutional requirement would compel that specific act is based on precedent:
Section 10 thus mandates not only honest and complete
and timely justice, but justice that can be seen to be so during and
after the event. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or
277, 286, 613 P2d 23 (1980) (Linde, J., concurring). Moreover,
the command that [n]o court shall be secret is not a statement of
an individual right that may be waived or compromised by the
individual. Deiz, 289 Or at 282-83. Members of the media and
public may benefit from, and assert in court in their own behalf,
the prohibition of section 10 on secret courts, but the prohibition is
not a right that is personal to themselves. Rather, it is one of those
provisions of the constitution that prescribe how the functions of
government shall be conducted. Deiz, 289 Or at 288 (Linde, J.,
concurring).
Oregonian Pub. Co. v. OLeary, 303 Or 297, 301-302, 736 P2d 173 (1987).
It is not simply defendant who has a constitutional interest in criminal
allegations being part of the public record. Rather, we all share in that interest.
16
Filing of a public record places the defendant, the court, and all citizens on
notice of the charges. Being public record, interested citizens may come
forward with information, either in support or opposition. Proceeding on
unpublished, unfiled, faxed accusations deprives defendant and all citizens of a
formalized public justice process.

CONCLUSION
For the reasons given above, defendant asks this court to allow review
and remand the case for resentencing on the basis that the states failure to
plead the dangerous offender facts precludes the sentencing court from
imposing a dangerous offender sentence.

Respectfully submitted,

PETER GARTLAN
CHIEF DEFENDER
OFFICE OF PUBLIC DEFENSE SERVICES

ESigned
________________________________
ERNEST G. LANNET OSB #013248
CHIEF DEPUTY DEFENDER

Leonard Lloyd Reinke

Signed
By Ernest Lannet at 3:11 pm, Sep 23, 2011

i
EXCERPT OF RECORD INDEX

Opinion ....................................................................................................... ER 1-2

FILED: August 10, 2011
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondenl,
v.
Defendanl-AppeLlant
Mullnomah Couoty Circuil Court
090130185
AI44138
Richard C. Baldwin, Judge.
Submitted on July 01,2011.
Peter Gartlan, Chief Defender, and Ernest G. Lanoet, Chief Deputy Defender, Office of
Public Defense Services, filed lbe brief for appellant
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Inge D.
Wells, Senior Assistant Attorney General, filed the brief for respondent
Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.
PER CURIAM
Reversed and remanded for resentencing; otherwise affinned.
DESIGNAnON OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Appellant
No costs allowed.
Costs allowed, payable by
Costs allowed, to abide the outcome on remand, payable by
ER-1
PER CURIAM
2 Defendant appeals ajudgment of conviction for, inter alia, second-degree
3 kidnapping (Count 15). DRS 163.225. A recitation ofthe facts would not benefit the
4 bench, the bar, or the public. It is sufficient to note that the trial court sentenced
5 defendant as a dangerous offender, see DRS 161.725; DRS 161.737, to 280 months'
6 imprisonment. On appeal, defendant contends that the trial court's sentence on Count 15
7 was legally erroneous because (1) the sentence did not include both a determinate and
8 indeterminate term of incarceration and (2) the state's notice that it would be seeking a
9 dangerous offender sentence was insufficient because the "Oregon Constitution requires
10 that all essential or material elements of a crime be found by a grand jury and pleaded in
II an indictment." With regard to defendant's first contention, the state concedes that the
12 trial court's "sentence is erroneous.'! We agree and accept the state's concession. See
13 Slate v. Isom, 201 Or App 687, 690,120 P3d 912 (2005) ("[A] correct sentence for a
14 dangerous offender contains both a determinate maudatory minimum term of
15 incarceration and an indeterminate maximum term, not to exceed 30 years. "). With
16 regard to defendant's second contention, we reject his constitutional arguments for the
17 same reasons stated in State v. Sanchez, 238 Or App 259, 242 P3d 692 (2010), rev den,
18 349 Or 655 (2011).
19 Reversed and remanded for resentencing; otherwise affirmed.
1
ER-2

Office of Public Defense Services Appellate Division
1175 Court St. NE Salem, Oregon 97301-4030
Telephone: (503) 378-3349 Fax: (503) 378-2163
CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d)

Petition length
I certify that (1) this petition complies with the word-count limitation in ORAP
9.05(3)(a) and (2) the word-count of this petition (as described in ORAP 5.05(2)(a)) is
3,763 words.

Type size
I certify that the size of the type in this petition is not smaller than 14 point for both
the text of the petition and footnotes as required by ORAP 5.05(4)(f).

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Appellant's Petition for Review to be filed
with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State
Street, Salem, Oregon 97301, on September 23, 2011.

I further certify that I directed the Appellant's Petition for Review to be served
upon Mary H. Williams, attorney for Plaintiff-Respondent, on September 23, 2011, by
having the document personally delivered to:

Mary H. Williams #911241
Solicitor General
Salem, OR 97301
Phone: (503) 378-4402
Attorney for Respondent on Review


PETER GARTLAN
CHIEF DEFENDER

ESigned
________________________________


Signed
By Ernest Lannet at 3:11 pm, Sep 23, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

Multnomah County Circuit Court
Case No. 090130185

CA A144138

SC S059760
STATE OF OREGON,

Plaintiff-Respondent,
Respondent on Review,

v.


Defendant-Appellant,
Petitioner on Review.

PETITIONERS BRIEF ON THE MERITS

Review of the Decision of the Court of Appeals on appeal from a judgment
of the Circuit Court for Multnomah County
Honorable Richard C. Baldwin, Judge

Per Curiam Opinion Filed: August 10, 2011
Before Haselton, Presiding Judge, and Brewer, Chief Judge, and
Armstrong, Judge
Review Allowed: January 12, 2012

PETER GARTLAN #870467
Chief Defender
ERNEST G. LANNET #013248
Chief Deputy Defender
Office of Public Defense Services
Salem, OR 97301
Phone: (503) 378-3349
Attorneys for Defendant-Appellant
JOHN R. KROGER #077207
Attorney General
ANNA JOYCE #013112
Solicitor General
INGE D. WELLS #881137
Senior Assistant Attorney General
Salem, OR 97301
inge.d.wells@doj.state.or.us
Phone: (503) 378-4402
Attorneys for Plaintiff-Respondent

54733 3/12
March 1, 2012 05:36 PM
i
TABLE OF CONTENTS

I. QUESTION PRESENTED AND PROPOSED RULE OF LAW.............1
II. STATEMENT OF THE CASE..................................................................2
III. SUMMARY OF ARGUMENT..................................................................7
IV. ARGUMENT..............................................................................................9
A. Introduction and the Prosecution Below..........................................9
B. Article I, section 11, and Article VII (Amended), section
5, forbid the legislature from exempting from the grand
jury or the petit jury any fact regarding the commission
of a felony that authorizes additional punishment. ........................15
1. A quick history of Article VII (Amended), section 5..........15
2. When adopting what is now Article VII (Amended),
section 5, the voters intended to secure their traditional
role as authorizing the specifics and severity of any
felony prosecution that the government could bring
to bear against an individual. ...............................................18
C. Until 1988, this court held that legislatively-identified
facts that concern the commission of the offense and
authorize increased punishment constitute ingredients of
the specific crime charged, even when those facts do not
appear in the statutory definition of the crime. ..............................36
1. This court strayed from strict adherence to
common-law pleading rules when it sanctioned the
legislatures omission of prior convictions from the
indictment in recidivism statutes. ........................................36
2. This court implemented the same analysis to
exempt from the jury issues of fact pertaining to
the defendant. .......................................................................43
3. This courts decisions immediately preceding Wagner
adhered to Smith: When the legislature ties
ii
punishment to a fact concerning the commission
of the offense, the legislature may not exempt that
fact from being pleaded and proven. .................................. 46
D. The decision in Wagner diverged from 80 years of
precedent and a fundamental principle of Anglo-
American jurisprudence; this court should disavow it or
clarify that the decision does not implicate Article VII
(Amended), section 5. ................................................................... 52
V. CONCLUSION........................................................................................ 61

iii
TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,
530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000) .............................57

Blakely v. Washington,
542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004) .............................52

Ester v. City of Monmouth,
332 Or 1, 903 P2d 344 (1995) ..................................................................18

Farmers Ins. Co. of Oregon v. Mowry,
350 Or 686, 261 P3d 1 (2011) ..................................................................60

Li v. State,
338 Or 376, 110 P3d 91 (2005)................................................................18

Pendleton School Dist. 16R v. State,
345 Or 596, 200 P3d 133 (2009)..............................................................11

Priest v. Pearce,
314 Or 411, 840 P2d 65 (1992)..........................................................11, 59

Severy/Wilson v. Board of Parole,
349 Or 461, 245 P3d 119 (2010)..............................................................55

State v. Blacker,
234 Or 131, 380 P2d 789 (1963)..................................................41, 42, 43

State v. Ciancanelli,
339 Or 282, 121 P3d 613 (2005)..................................................55, 56, 61

State v. Dilts,
336 Or 158, 82 P3d 593 (2003),
revd on other grounds sub nom, Dilts v. Oregon,
542 US 634, 124 S Ct 2906, 159 L Ed 2d 809 (2004) .........................7, 13

iv
State v. Dixon,
238 Or 121, 393 P2d 204 (1964) ................................................. 44, 45, 46

State v. Dougherty,
4 Or 200 (1871) ................................................................................. 29, 30

State v. Gortmaker,
295 Or 505, 668 P2d 354 (1983) ............................................................. 15

State v. Hart,
299 Or 128, 699 P2d 1113 (1985) ..................................................... 50, 51

State v. Heilman,
339 Or 661, 125 P3d 728 (2005) ............................................................. 56

State v. Hicks,
213 Or 619, 325 P2d 794 (1958) ....................................................... 40, 41

State v. Hoffman,
236 Or 98, 385 P2d 741 (1963) ............................................. 43, 44, 47, 48

State v. Howard,
41 Or 49, 69 P 50 (1902) ......................................................................... 25

State v. Ice,
343 Or 248, 170 P3 1049 (2007) ................................................. 20, 48, 51

State v. Johnson,
340 Or 319, 131 P3d 173 (2006) ....................................................... 58, 59

State v. Langworthy,
55 Or 303, 106 P 336 (1910) ................................................................... 17

State v. Moore,
334 Or 328, 49 P3d 785 (2002) ............................................................... 58

State v. Moyer,
76 Or 396, 149 P 84 (1915) ................................................... 30, 31, 32, 33

State v. Newlin,
92 Or 589, 182 P 133 (1919) ............................................................. 36, 37
v
State v. Newlin,
92 Or 597, 182 P 135 (1919) ..............................................................36, 37

State v. Pachmayr,
344 Or 482, 185 P3d 1103 (2008)....................................15, 18, 19, 33, 34

State v. Quinn,
290 Or 383, 623 P2d 630 (1981) ......................... 46, 47, 48, 49, 50, 51, 56

State v. Reinke,
245 Or App 33, 260 P3d 820 (2011) ....................................................4, 61

State v. Sanchez,
238 Or App 259, 242 P3d 692 (2010),
rev den, 349 Or 654 (2011) ..................................................................4, 61

State v. Smith,
128 Or 515, 273 P 323 (1929) ......................................................37, 38, 39

State v. Smith,
182 Or 497, 188 P2d 998 (1948)............................................29, 31, 32, 49

State v. Terry,
333 Or 163, 37 P3d 157 (2001) ....................................................56, 57, 59

State v. Tollefson,
142 Or 192, 16 P2d 625 (1932)..........................................................15, 16

State v. Trueax,
315 Or 396, 845 P2d 1291 (1993)............................................................25

State v. Vasquez,
336 Or 598, 88 P3d 271 (2004) ................................................................21

State v. Wagner,
305 Or 115, 752 P2d 1136 (1988),
vacd on other grounds,
492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989) ...........................7, 8

State v. Wagner,
305 Or 115, 752 P2d 1136 (1988)........... 52, 53, 54, 55, 56, 57, 58, 59, 61
vi
State v. Waterhouse,
290 Or 424, 307 P2d 327 (1957) ....................................................... 39, 40

State v. Wedge,
293 Or 598, 652 P2d 773 (1982) ................................................. 49, 50, 51

State v. Wimber,
315 Or 103, 843 P2d 424 (1992) ................................................. 31, 32, 33

State v. Woodson,
315 Or 314, 845 P2d 203 (1993) ....................................................... 32, 33

State v. Wright,
19 Or 258, 24 P 229 (1890) ..................................................................... 31

Stranahan v. Fred Meyer, Inc.,
331 Or 38, 11 P3d 228 (2000) ........................................................... 55, 59

Urhausen v. City of Eugene,
341 Or 246, 142 P3d 1023 (2006) ........................................................... 11

Constitutional and Statutory Provisions

Or Const, Art I, 11 ...................... 2, 9, 15, 20, 43, 46, 48, 49, 50, 51, 54, 55, 59

Or Const, Art VII (Amended), 5..................... 2, 8, 9, 15, 17, 40, 48, 54, 55, 59

Or Const, Art VII (Amended), 5(3)-(6) .......................................................... 10

Or Const, Art VII, 18 (1857) .................................................................... 16, 17

Or Const, Art VII, 18 (1908) .................................................................... 18, 60

Or Const, Art XVIII, 7.................................................................................... 21

Act to Define Crimes and Misdemeanors, and
Regulate Criminal Proceedings (1853) ................................................... 22

vii
Act Relating to the Election of Justices of the Peace, and
Constables, and to Proceedings in Justices Courts,
ch XX, 224-26 .....................................................................................22

Measure 11 (ORS 137.700, et seq.) ....................................................................13

Or Laws 1891, p 138, 1....................................................................................17

Or Laws 1899................................................................................................16, 23

Or Laws 1907, ch 226, 8..................................................................................35

Or Laws 1909......................................................................................................16

Or Laws 1911......................................................................................................16

Or Laws 1929......................................................................................................16

Or Laws 1959......................................................................................................17

Or Laws 1961, ch 648, 4, 13..........................................................................43

Or Laws 1975......................................................................................................17

Organic Law of the Oregon Territory, Art I, 2 (1845) ....................................21

ORS 136.765.......................................................................................................11

ORS 137.111 (1961), repealed by Or Laws 1971, ch 743, 432 ......................45

ORS 137.112(1) (1961), repealed by Or Laws 1971, ch 743, 432 .................45

ORS 161.605(2) ..................................................................................................13

ORS 161.725 - 161.737 ..................................................................................7, 13

ORS 161.725(1) ..................................................................................................14

ORS 161.725(1)(b) .............................................................................7, 13, 14, 36

ORS 161.735(9) ..................................................................................................11
viii
ORS 161.737...................................................................................................... 13

ORS 162.195(2)(c)............................................................................................. 60

ORS 162.265........................................................................................................ 2

ORS 162.285........................................................................................................ 2

ORS 163.195(1) ................................................................................................. 60

ORS 163.210 (1953), repealed by Or Laws 1971, ch 743, 432 ..................... 44

ORS 163.210(1) (1953) ..................................................................................... 45

ORS 163.220 (1955), repealed by Or Laws 1971, ch 743, 432 ..................... 39

ORS 163.225............................................................................................ 2, 12, 36

ORS 163.275 ....................................................................................................... 2

ORS 166.230 (1961), repealed by Or Laws 1971, ch 779, 7 ................... 42, 43

ORS 166.270........................................................................................................ 2

ORS 167.050 (1955), amended by Or Laws 1963, ch 353, 1......................... 39

ORS 167.165 (1955), repealed by Or Laws 1963, ch 340, 1 ......................... 39

The Codes and Statutes of Oregon,
title XVIII, ch VIII, 1314 (Bellinger & Cotton 1901).......................... 24

The Statutes of Oregon Enacted and Continued in Force
by the Legislative Assembly (1855) ................................................... 21, 22

Other Authorities

1 Joel Prentiss Bishop, New Criminal Procedure
77, 81, 84, 98a-99 (1895) ................................................................... 27

2 Bouviers Law Dictionary (reprint 2000) (1839)............................................ 20
ix

2 Joel Prentiss Bishop,
Commentaries on the Criminal Law, ch VI, 88 (2d 1858)....................21

Blacks Law Dictionary (1891) ..........................................................................19

Charles H. Carey,
Official Voters Pamphlet, General Election, June 1, 1908.....................35

Charles Henry Carey, ed.,
The Oregon Constitution and Proceedings and Debates of the
Constitutional Convention of 1857 (reprint 1984) (1926) .......................16

Howard C. Joyce,
Joyce on Indictments 46, 52-53 (1908) .................................................28

Joel Prentiss Bishop,
Commentaries on the Law of Statutory Crimes 371 (1873)..................27

Senate Joint Resolution 1 (1974)........................................................................17

BRIEF ON THE MERITS OF PETITIONER ON REVIEW
________________________________________________________________

I. QUESTION PRESENTED AND PROPOSED RULE OF LAW
Question Presented: The maximum penalty for a Class B felony is 10
years incarceration. A separate sentencing statute (the dangerous offender
statute) authorizes a sentencing court to increase the sentence up to 30 years
incarceration if additional factual findings are present, including the finding that
defendants conduct seriously endangered the life or safety of another.
When the legislature identifies an offense-related fact that increases the
maximum punishment for the offense, is that fact one that must be included in
the indictment/charging instrument and found by a petit jury beyond a
reasonable doubt before the sentencing court has authority to impose an
enhanced sentence?
Proposed Rule of Law: Among other functions, a charging instrument
(here, a grand jury indictment) both authorizes the government to pursue a
formal criminal prosecution in court and frames the extent of the prosecution
and the defendants potential exposure to punishment. When a fact associated
with the commission of an offense increases the potential punishment for that
offense, that fact must be alleged in the indictment and found by a petit jury
before the sentencing court has authority to impose the enhanced sentence.
2
Oregon Constitution, Article VII (Amended), section 5, and Article I,
section 11.

II. STATEMENT OF THE CASE
This is a criminal case on review arising from a judgment entered
pursuant to a reindictment, in which a grand jury found as a true bill
defendants commission of eight offenses: two counts of tampering with a
witness, ORS 162.285 (Class C felony); two counts of bribing a witness, ORS
162.265 (Class C felony); two counts of kidnapping in the second degree, ORS
163.225 (Class B felony); one count of coercion, ORS 163.275 (Class C
felony); and one count of felon in possession of a firearm, ORS 166.270 (Class
C felony). Appellants Brief (App Br) at ER-1-3. Approximately one week
prior to sentencing, the prosecuting district attorney sent a letter via fax to
defense counsel to inform him that, in the event of a guilty finding on any of
the felony counts[,] the state will seek a Dangerous Offender sentence pursuant
to ORS 161.725, 161.735 and 161.737. App Br at ER-4.
Defendant waived jury and was tried to the court with a codefendant.
Tr 3-5. After the state rested its case-in-chief, the trial court dismissed four
counts on the states motion. Tr 423. After the presentation of the evidence,
the trial court found defendant guilty of the remaining four counts. Tr 485
(tampering, bribery, kidnapping, and felon in possession). The trial court set
3
over sentencing to allow time for preparation of a pre-sentence investigation
report. Tr 485-87.
At sentencing, the prosecutor stated,
In anticipation of [defense counsels] argument that the
dangerous offender isnt appropriate here because there wasnt a
threat of violence, I would like you to keep in mind Ms. Todds
comments at trial where she thought [defendant] was going to kill
her if she didnt get into the van.
Tr 509. Defendant argued that that the trial court lacked authority to impose a
dangerous offender sentence because, in part, the factual predicates in general
and, alternatively, the offense-specific predicates specifically, had not been
included in the indictment. Tr 510-17.
On the record at sentencing, the trial court pronounced the following
sentences:
THE COURT: All right. The Court concludes that
defendant has received adequate notice of the States intent to seek
sentencing under the Dangerous Offender Statute, and will follow
the recommendation of the presentence investigation report finding
[defendant] to be a dangerous offender, with the limitation of the
primary offense. The Court imposes 280 months.
Also, follows the recommendation by imposing 30 months
on the additional counts, 10, 11 and 17, to be served concurrent to
Count 15, which is the primary count, where the Court has
imposed 280 months.
The Court adopts Dr. Colistros findings in their entirety,
which includes a finding that [defendant] meets the diagnosis of
Antisocial Personality Disorder, and has a propensity towards
crimes that seriously endanger the life or safety of others.

4
Based on the criminal history, this case, and the entire
record, the Court also finds that [defendant] is a highly dangerous
offender; that the risk of future violent person crimes to other
members of the public is very high; and that the public is only
reasonably protected by application of the Dangerous Offender
Statute.
Tr 528-29. The trial court ultimately imposed a 280-month sentence for
kidnapping in the second degree. App Br at ER-17-22.
Defendant appealed. The Court of Appeals issued a per curiam opinion,
in which it agreed that the trial court had not complied with its statutory
authority in imposing the dangerous offender statute but rejected defendants
constitutional claims. State v. Reinke, 245 Or App 33, 34, 260 P3d 820 (2011)
(citing State v. Sanchez, 238 Or App 259, 242 P3d 692 (2010), rev den, 349 Or
654 (2011)). Defendant petitioned for review, which this court granted.
Evidence sustaining convictions
Defendant sold drugs, had befriended Jennifer Todd (one of his
customers), and had arranged for another couple (also customers) to move in
with her to share expenses.
1
Tr 13-23. Defendant also had codefendant help
the couple move in. Tr 20-25. Codefendant raped, sodomized, and kept Todd
at her apartment. Tr 34-64. Defendant eventually persuaded codefendant to

1
The Appellants Opening Brief contains a detailed summary of facts
with citations to the record. App Br at 5-10.
5
allow Todd to leave. Tr 63-64. Todd subsequently reported the incident to
police, who arrested codefendant. Tr 67-75.
Defendant contacted codefendants brother Willenberg and told him that
Todd would not testify if he gave defendant $10,000 and a backpack containing
evidence that people known to defendant were engaged in identity theft.
Tr 339. Willenberg notified police who arranged a recorded telephone call
wherein defendant and Willenberg agreed that defendant would stop Todd from
testifying for $8,000 and the backpack. Tr 315-25.
Defendant went to Todds apartment and asked whether she was going to
testify to the grand jury. Defendant told Todd that Willenberg was willing to
pay her $5,000 and return the backpack to defendant if she agreed not to testify.
Defendant said Todd would save a lot of his friends if he obtained the
backpack and that many people would go to jail if he did not. Defendant asked
Todd to return his gun, which Todd had previously put in her safe. Todd
returned the gun to defendant. Todd told defendant that she would think about
the offer. Todd was scheduled to appear at the grand jury the next morning.
Tr 75-82, 256.
As soon as defendant left, Todd called the police, who told her that she
could not accept the offer and should not go with defendant. Defendant
returned later that night, and Todd told him that she was going to testify. The
police called Todd while defendant was there, and defendant became upset.
6
The officer told Todd not to go with defendant in his van, but Todd felt like she
did not have a choice. Defendant was extremely upset and insistent. Tr 79-82,
381-82.
Todd told defendant that police were watching her apartment, and he
walked her around outside until he spotted the officers. They returned to the
apartment. Todd repeatedly told defendant that she was going to testify, and
defendant repeatedly told her that she should accept the offer. Defendant told
Todd that, if she did not do what he was asking, she would have to be always
looking over her shoulder. Todd got into defendants van with him because she
could not tell defendant, No. Todd was afraid that defendant would hurt or
kill her if she refused. Tr 81-85, 385.
Defendant refused to stop the van to let Todd out. By that time, it was
approximately 2:00 a.m. Defendant stopped at a gambling place, and they went
inside. When the staff would not accept defendants identification, he had Todd
get back in the van and continued to drive around. Defendant would not let
Todd call Willenberg to tell him that she would not testify because defendant
told her that she had to tell him in person. Tr 84-88, 260.
Defendant drove into a parking lot to meet Willenberg. Defendant got
out, took the backpack from Willenberg, got back in the van, and drove away.
Police chased the van, and defendant had Todd throw the backpack out of the
7
window. The police stopped the van and found the gun under the hood.
Tr 88-91, 383, 404, 412.

III. SUMMARY OF ARGUMENT
Defendant was indicted for kidnapping in the second degree, a Class B
felony subject to a maximum sentence of 10 years. State v. Dilts, 336 Or 158,
174, 82 P3d 593 (2003), revd on other grounds sub nom, Dilts v. Oregon, 542
US 634, 124 S Ct 2906, 159 L Ed 2d 809 (2004). Here, the trial court imposed
a 280-month sentence, almost three times longer than the statutory maximum,
after finding facts authorizing a dangerous offender sentence pursuant to ORS
161.725 to 161.737. One of those facts was that the felony seriously
endangered the life or safety of another. ORS 161.725(1)(b). The indictment
did not include that fact.
In State v. Wagner, 305 Or 115, 172, 752 P2d 1136 (1988), vacd on
other grounds, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), this court
held that an indictment for aggravated murder need not allege that the defendant
acted deliberately, even though a jury needed to find that fact before a trial
court had authority to impose a death sentence. The court neither cited any
particular state constitutional provision or any previous decision nor engaged in
any of the textual or historical analysis that is the focus of its methodology
when it confronts questions of constitutional interpretation.
8
The defendant in Wagner conceded that he had acted deliberately and did
not claim any deficiency in the indictment (for failure to allege deliberateness)
in the trial court, or even on direct appeal to this court. Rather, amici curiae
raised it for the first time in a single page of argument, as the last of twelve
constitutional and statutory challenges to the death penalty statute. Brief of
Amici American Civil Liberties Union of Oregon et al. (Amici Br) at 60,
Wagner (S32635). To the extent that it has been relied on as interpreting the
function of a grand jury indictment, as provided by Article VII (Amended),
section 5, Wagner should be disavowed.
The voters in 1908 adopted the amendment to the Oregon Constitution
that made grand jury indictment mandatory to commence a prosecution for an
offense punishable as a felony. That provision persists essentially in its original
form. A proper analysis of the text, context, and history of the constitutional
provisions firmly establishes that Wagner is inconsistent with Article VII
(Amended), section 5.
The Oregon Constitution guarantees that in all criminal prosecutions
the accused shall have the right to trial by jury and to demand the nature and
cause of the accusation against him and that, with narrow exceptions
inapplicable here, the accused shall be charged with the commission of any
crime punishable as a felony only on indictment by a grand jury. Those
provisions enshrine in our constitution two fundamental tenets: Any fact that
9
the legislature identifies that describes the commission of a felony and
authorizes criminal punishment must be alleged in the indictment and proved to
a jury beyond a reasonable doubt before the state can execute that modicum of
punishment.
Those guarantees not only protect the accused, they also reserve to the
people its principal role in the Anglo-American tradition of criminal lawThe
people must specifically authorize the nature and severity of any criminal
prosecution of serious crimes that the government wishes to bring against an
individual. Whether defendants commission of a Class B felony also seriously
endangered the life or safety of another is a fact integral to the commission of
the offense that must be alleged in the indictment before the trial court has
constitutional authority to triple his authorized punishment.

IV. ARGUMENT
A. Introduction and the Prosecution Below
Article I, section 11, provides that [i]n all criminal prosecutions, the
accused shall have the right to public trial by an impartial jury * * *, to demand
the nature and cause of the accusation against him, and to have a copy
thereof[.] Article VII (Amended), section 5, specifies who may accuse
someone with the commission of any crime punishable as a felony, by what
means, and how it may be amended:
10
(3) Except as provided in subsections (4) and (5) of this
section, a person shall be charged in a circuit court with the
commission of any crime punishable as a felony only on indictment
by a grand jury.
(4) The district attorney may charge a person on an
information filed in circuit court of a crime punishable as a felony
if the person appears before the judge of the circuit court and
knowingly waives indictment.
(5) The district attorney may charge a person on an
information filed in circuit court if, after a preliminary hearing
before a magistrate, the person has been held to answer upon a
showing of probable cause that a crime punishable as a felony has
been committed and that the person has committed it, or if the
person knowingly waives preliminary hearing.
(6) An information shall be substantially in the form
provided by law for an indictment. The district attorney may file
an amended indictment or information whenever, by ruling of the
court, an indictment or information is held to be defective in form.
Or Const, Art VII (Amended), 5(3)-(6) (emphases added).
The issue in this case concerns the scope of both provisions, namely,
whether that the facts necessary to impose a dangerous offender sentence for
second-degree kidnapping, a Class B felony, implicate them. Because the issue
/////
/////
/////
/////
/////
11
concerns the meaning of those constitutional provisions,
2
this court will
examine the specific wording of each provision, the case law surrounding them,
and the historical circumstances that led to their creation. Pendleton School
Dist. 16R v. State, 345 Or 596, 613, 200 P3d 133 (2009) (original provision);
Urhausen v. City of Eugene, 341 Or 246, 253, 142 P3d 1023 (2006) (initiated
provision). Its lone goal will be to ascertain and give effect to the intent of its
enactors. Pendleton School Dist. 16 R, 345 Or at 613 (framers and voters
intent); Urhausen, 341 Or at 253 (voters intent). For background, before

2
This court customarily will begin by considering the pertinent sub-
constitutional law. Priest v. Pearce, 314 Or 411, 414, 840 P2d 65 (1992).
Here, the applicable statutes do not require that the indictment include those
facts:
The facts required to be found to sentence a defendant as a
dangerous offender * * * are enhancement facts, as defined in ORS
136.760, and ORS 136.765 to 136.785 apply to making
determinations of those facts.
ORS 161.735(9) (statute set out in full at App-3). ORS 136.765 provides:
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) Within a reasonable time after filing the
accusatory instrument, providing written notice to the
defendant of the enhancement fact and the states intention
to rely on it.
12
embarking on that analysis, defendant will review how the issue arose below.
The indictment at issue alleged that defendant had committed eight Class
B or C felonies. ER-1-3. As pertinent here, and omitting the caption and
conclusion, the indictment provided:
The above-named defendant(s) are accused by the Grand
Jury of Multnomah County, State of Oregon, by this indictment of
crime(s) of * * * COUNT * * * 15 KIDNAPPING IN THE
SECOND DEGREE * * *
* * *
COUNT 15
KIDNAPPING IN THE SECOND DEGREE
The said Defendant(s) LEONARD LLOYD REINKE, on
or about January 08, 2009, in the County of Multnomah, State of
Oregon, did unlawfully and knowingly, without consent or legal
authority, take JENNIFER TODD from one place to another, with
the intent to interfere substantially with the said JENNIFER
TODDS personal liberty, contrary to the statutes in such cases
made and provided and against the peace and dignity of the State
of Oregon[.]
ER-1-3 (formatting as in original).
As relevant to this case, second-degree kidnapping is defined in
ORS 163.225 as:
(1) A person commits the crime of kidnapping in the
second degree if, with intent to interfere substantially with
anothers personal liberty, and without consent or legal authority,
the person:
(a) Takes the person from one place to another[.]
* * *
13
(3) Kidnapping in the second degree is a Class B felony.
Ordinarily, the trial court whether imposing sentence pursuant to the
sentencing guidelines or Measure 11 (ORS 137.700, et seq.) may not impose
a sentence that exceeds 10 years, the indeterminate statutory maximum for a
Class B felony. ORS 161.605(2); see also Dilts, 336 Or at 174 (guideline and
determinate sentences cannot exceed the indeterminate sentence limit for
felonies set by ORS 161.605). Below, the trial court imposed a 280-month
sentence, almost three times longer than the indeterminate maximum, pursuant
to subsection (1)(b) of ORS 161.725. That subsection provides in pertinent part
(the entirety of ORS 161.725 to 161.737 is set out at App-1-4):
(1) Subject to the provisions of ORS 161.737,[
3
] the
maximum term of an indeterminate sentence of imprisonment for a
dangerous offender is 30 years, if because of the dangerousness of
the defendant an extended period of confined correctional
treatment or custody is required for the protection of the public and
one or more of the following grounds exist:
(a) The defendant is being sentenced for a Class A felony
and the defendant is suffering from a severe personality disorder
life or safety of another.
(b) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has been previously convicted of a felony not related to the instant
crime as a single criminal episode and the defendant is suffering

3
That statute specifies how a trial court is to comply with ORS 161.737
while still imposing a determinate incarceration term.
14
from a severe personality disorder indicating a propensity toward
crimes that seriously endanger the life or safety of another.
(c) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has previously engaged in unlawful conduct not related to the
instant crime as a single criminal episode that seriously endangered
the life or safety of another and the defendant is suffering from a
severe personality disorder indicating a propensity toward crimes
that seriously endanger the life or safety of another.
ORS 161.725(1).
In other words, when a defendant is found guilty of a Class B felony,
with a statutory maximum indeterminate sentence of 10 years (or a Class C
felony, with a statutory maximum indeterminate sentence of 5 years), the
legislature has identified facts in ORS 161.725(1)(b) which, if found, authorize
an indeterminate sentence three (or six) times longer.
Here, in order for the trial court to impose a dangerous offender sentence
for the Class B felony of kidnapping in the second degree, the jury needed to
find four additional facts facts that the indictment did not contain:
(1) Defendant was being sentenced for a felony that seriously
endangered the life or safety of another;
(2) Defendant had been previously convicted of a felony not related
to the instant crime as a single criminal episode;
(3) Defendant is suffering from a severe personality disorder
life or safety of another; and
(4) Because of the dangerousness of the defendant[,] an extended
period of confined correctional treatment or custody is required for
the protection of the public.
15
It is those four facts that are under this courts consideration. Ultimately, this
court should conclude that the trial court lacked authority to impose a
dangerous offender sentence for second-degree kidnapping because the
indictment did not allege, at minimum, that the commission of the felony
seriously endangered the life or safety of another.
B. Article I, section 11, and Article VII (Amended), section 5, forbid the
legislature from exempting from the grand jury or the petit jury any fact
regarding the commission of a felony that authorizes additional
punishment.
The Article I, section 11, right of the accused in all criminal
prosecutions to trial by jury, to demand the nature and cause of the accusations
him, and to have a copy thereof has remain unaltered since adoption of the
constitution in 1857. The constitutional provision on the right to grand jury
indictment lacks such a straightforward history.
4

1. A quick history of Article VII (Amended), section 5
From its adoption, the Oregon Constitution provided for indictment by
grand jury, albeit reserving to the legislature the right to revisit the issue:
The Legislative Assembly shall so provide that the most
competent of the permanent citizens of the county shall be chosen
for jurors; and out of the whole number in attendance at the court,

4
This court has not lacked for occasion to recount the history of the
Oregon Constitutions grand jury provisions. See, e.g., State v. Pachmayr, 344
Or 482, 486, 185 P3d 1103 (2008); State v. Gortmaker, 295 Or 505, 513-15,
668 P2d 354 (1983); State v. Tollefson, 142 Or 192, 194-96, 16 P2d 625 (1932).
16
seven shall be chosen by lot as grand jurors, five of whom must
concur to find an indictment; But the Legislative Assembly may
modify or abolish grand juries.
Or Const, Art VII, 18 (1857).
5
In 1899, the legislature authorized, in fact
mandated, that a district attorney commence a prosecution by filing an
information. Or Laws 1899, p 99. A 1908 constitutional amendment by
initiative overrode the 1899 statute prospectively and made grand jury
indictment mandatory for any crime and misdemeanor, but permitted an
amendment to correct a defect as to form. Or Laws 1909, p 12.
In 1910, that amended text was included in section 5 of the initiative-
proposed Amended Article VII. Or Laws 1911, p 8. A 1927 amendment added
a second proviso that allowed the district attorney to proceed by information if
the defendant waived indictment. Or Laws 1929, p 5.
6
Then, in 1958, the

5
Newspaper accounts of the constitutional convention indicate that the
drafting of the article on the judicial department, including the decision to
continue the common-law tradition of grand jury indictment, was a subject of
surprisingly acrimonious and partisan debate. See, e.g., Charles Henry Carey,
ed., The Oregon Constitution and Proceedings and Debates of the
Constitutional Convention of 1857 186-88, 196-98, 212-15 (reprint 1984)
(1926).
6
The amendment, which followed the first proviso, specified: provided
further, however, that if any person appears before any judge of the circuit court
and waives indictment, such person may be charged in such court with any such
crime [or] misdemeanor on information filed by the district attorney * * * . Or
Laws 1929, p 5; see also Tollefson, 142 Or at 196-98 (explaining that the voters
amended Article VII (Amended), section 5, notwithstanding that the legislative
referral purported to amend Article VII, section 18).
17
voters approved a legislative referral, which repealed Article VII (Original),
section 18, and amended Article VII (Amended), section 5, to specify that the
form of an information, and the procedures that follow filing one, shall be
substantially the same as for indictments. Or Laws 1959, p 6. Finally, in 1974,
the voters approved Senate Joint Resolution (SJR) 1 (1974), which replaced
section 5 with its current version. Or Laws 1975, p 6.
In summary, from 1857 to 1908, the constitution required trial by jury,
required that the accused be provided the nature and cause of the accusations
against him, and permitted, with leave to the legislature to modify, indictment
by grand jury. But, since at least 1908, the Oregon Constitution has required
that a prosecution for commission of a felony
7
commence by only one means,
grand jury indictment:
* * * No person shall be charged in any circuit court with
the commission of any crime or misdemeanor defined or made
punishable by any of the laws of this state, except upon indictment
found by a grand jury; provided, however, that any district attorney
may file an amended indictment whenever an indictment has, by a
ruling of the court, been held to be defective in form.

7
As noted elsewhere below, justice courts had concurrent jurisdiction
over certain misdemeanors when the constitution was adopted; by 1908, justice
courts had concurrent jurisdiction over all misdemeanors. Or Laws 1891, p
138, 1. The 1908 amendment to Article I, section 18, did not deprive those
courts over their concurrent jurisdiction over misdemeanors; prosecutions in
justice courts could commence by complaint even if, upon conviction,
defendant appealed to circuit court for trial de novo. State v. Langworthy, 55 Or
303, 314-16, 106 P 336 (1910).
18
Or Const, Art VII, 18 (1908) (emphasis in original). Consequently, the intent
of the voters in 1908 is key to understanding the meaning of the current grand
jury provision. See Pachmayr, 344 Or at 485-89 (taking same approach).
To understand the change intended by the 1908 amendment to section 18,
one must understand the state of the law leading to that change. That is the
significant point of reference from which to interpret the text, because the
voters intent should be gauged by the meaning of words and legal framework
existing at the time the voters adopted it. Li v. State, 338 Or 376, 388-89, 110
P3d 91 (2005) (when construing a constitutional provision enacted by initiative,
this court considers the text of the provision in its context, which includes other
constitutional provisions as well as case law and any relevant statutory
framework in effect at the time that the voters adopted the provision).
2. When adopting what is now Article VII (Amended), section 5, the
voters intended to secure their traditional role as authorizing the
specifics and severity of any felony prosecution that the
government could bring to bear against an individual.
a. Text
The text of the amendment, even after resorting to dictionaries of the
time, leaves many questions unanswered. See Ester v. City of Monmouth, 332
Or 1, 9, 903 P2d 344 (1995) (in examining text and context of provision
adopted by initiative, this court typically gives words of common usage their
plain, natural, and ordinary meaning[,] but, if words used * * * have a well-
defined legal meaning, we will give the words that meaning in construing the
19
provision. (citations omitted)). The definitions of some of the terms in section
18 (e.g., accusation, crime) have such a broad meaning that it makes it difficult
to determine what if anything the provision required be included in an
indictment.
But, as noted in Pachmayr, the definition of form with regard to
pleadings had a very specific meaning:
The distinction between form and substance is often
important in reference to the validity or amendment of pleadings.
If the matter of the plea is bad or insufficient, irrespective of the
manner of setting it forth, the defect is one of substance. If the
matter of the plea is good and sufficient, but is inartificially or
defectively pleaded, the defect is one of form.
Blacks Law Dictionary 510 (1891), quoted in Pachmayr, 344 Or at 488. An
indictment has a defect of form if (1) the matter of the plea is good and
sufficient (2) even if the matter is inartificially or defectively pleaded. It has
a defect of substance if (1) the matter of the plea is bad or insufficient (2)
irrespective of the manner of setting it [the matter] forth. But even that
definition does not identify the matter with any real specificity.
b. Related constitutional provisions
As noted, section 18 originally authorized indictment by grand jury but
gave the legislature leave to amend the grand jury system. Related sections of
the constitution guaranteed in all criminal prosecutions the right to trial by
jury, to demand the nature and cause of the accusations him, and to have a
20
copy thereof. Or Const, Art I, 11. The meaning of criminal prosecutions
was plain:
PROSECUTION, crim. law, is the means adopted to bring
a supposed offender to justice and punishment by due course of
law.
2 Bouviers Law Dictionary 306 (reprint 2000) (1839) (emphasis added).
8
And
the phrase, the nature and cause of the accusation, also had a well-established
meaning:
The Constitution of the United States also provides * * *
that, in all criminal prosecutions, the accused shall enjoy the right
. . . . to be informed of the nature and cause of the accusation, and,
we have seen, the Constitution of Minnesota contains the same
clause, as to crimes against the State. Provisions, more or less
nearly in these words, are to be found in the constitutions of other
States. Then we have provisions, not existing quite in all the
States, entitling prisoners to be tried, for at least the higher crimes,
only on indictment found by a grand jury. Where the trial is on
information, the result, as to this point, is the same. These
provisions are in their necessary construction full and complete
guaranties, to all persons held for crimes of whatever sort, that,

8
Here, is a point of departure from this courts case law (discussed
below). In State v. Ice, 343 Or 248, 170 P3 1049 (2007), this court observed
that it had previously stated, In our opinion, the words criminal prosecution,
as set forth in Article I, section 11 of our constitution, refer to establishing
before a jury acts declared to be criminal by legislative action. Id. at 258
(quoting State v. Quinn, 290 Or 383, 405-06, 623 P2d 630 (1981), in turn
quoting State v. Hoffman, 236 Or 98, 107, 385 P2d 741 (1963)) (emphasis
added in Ice). This court noted that [i]t may be less than obvious * * * that a
criminal prosecution embraces guilt determinations but not sentencing
matters and that that interpretation [a]rguably * * * is incorrect. Ice, 343 Or
at 258 n 3. The court found no occasion to consider the possibility because the
defendant had not put forth any challenge to its correctness. Id. That occasion
has presented itself.
21
before they shall be convicted, there shall be an allegation made
against them of every element of crime which the law makes
essential to the punishment to be inflicted.
2 Joel Prentiss Bishop, Commentaries on the Criminal Law, ch VI, 88, p 55-
56 (2d 1858) (emphasis added).
The original constitution also provided that all laws in force in the
territory of Oregon when this constitution takes effect, shall continue in force
until altered or repealed. Or Const, Art XVIII, 7. Thus, the state of the law
when the provisions were adopted is relevant to the meaning of the original
provisions. State v. Vasquez, 336 Or 598, 608, 88 P3d 271 (2004) (stating that
the criminal procedure code that was in force in Oregon at the time that the
Criminal Constitution was drafted provides helpful context in construing
original constitutional provisions).
Before Oregons entry into the Union and the enactment of its
constitution, the organic act of the territory provided,
The inhabitants of said Territory shall always be entitled to
the benefits of * * * trial by jury * * * according to the course of
common law. * * * . No man shall be deprived of his liberty but by
the judgment of his peers, or the law of the land.
Organic Law of the Oregon Territory, Art I, 2 (1845), in The Statutes of
Oregon Enacted and Continued in Force by the Legislative Assembly (hereafter,
Statutes in Force) (1855), p 33. And at the time of statehood, the pertinent law
provided:

22
No person shall be held to answer for a criminal offence,
unless on the presentment or indictment of a grand jury; except in
cases of impeachment, or in cases cognizable by justices of the
peace, or arising in the army or militia * * * .
In all criminal prosecutions, the accused shall enjoy the
right * * * to demand the nature and cause of the accusation
against him * * * and in prosecutions by indictment or information,
to a speedy public trial, by an impartial jury * * * .
An Act to Define Crimes and Misdemeanors, and Regulate Criminal
Proceedings, ch II, 1-2 (1853), in Statutes in Force at 207.
9

When the framers and voters adopted the original constitution (and until
the legislature decided otherwise), a criminal prosecution for a felony offense
had to commence by accusation of each fact that the law made essential to the
punishment faced, that accusation had to be made in a grand jury indictment,
and a petit jury had to find those facts in order to subject the defendant to the
punishment implicated by the accusation.
/////

9
A justice of the peace had jurisdiction over specific crimes, which
appear to be some of the lesser offenses. See id. at ch IV, 37-40 (justice of
the peace has jurisdiction over certain criminal mischief and trespass offenses,
when damage does not exceed $100), ch XI, 17-19 (same, disturbing
worship services and conducting civil service on a Sunday); see also An Act
Relating to the Election of Justices of the Peace, and Constables, and to
Proceedings in Justices Courts, ch XX, 224-26 (same, assault, battery, or
affray; providing that the justice of the peace will cease adjudication upon
realization that offense does not fall within his jurisdiction) (also in Statutes in
Force).
23
c. The statutory framework in place in 1908
As noted above, in 1899 the legislature acted on its authority to replace
the grand jury and indictment with the district attorney and information:
Section 1. Hereafter it shall be lawful for the district
attorney of any judicial district of this state, and it is hereby made
his duty, to file in the proper circuit court an information charging
any person or persons with the commission of any crime defined
and made punishable by any of the laws of this state, which shall
have been committed in the county where the information is filed.
Section 2. Information shall be substantially in the form
prescribed in section 1269(70) of the criminal code of the state of
Oregon, as compiled and annotated by W. Lair Hill, except that the
words district attorney shall be used instead of the words grand
jury whenever the same occur. And the manner of stating the act
constituting the crime as set forth in the appendix to said criminal
code shall be sufficient in any such information in all cases where
the forms there give are applicable; and in other forms may be used
as nearly similar as the nature of the case shall permit.
Section 3. From the time any information is filed as
provided in this act the same shall be construed like an indictment,
and shall be deemed to be in all respects the same as an indictment
within the meaning of the present statutes of this state * * * .
Or Laws 1899, p 99.
And in 1908, when the voters approved the amendment making grand
jury indictment mandatory, the pertinent statutory framework provided:
The indictment is sufficient if it can be understood
therefrom:
1. That it is entitled in a court having authority to receive it,
though the name of the court be not accurately stated;
2. That it was found by a grand jury of the county in which
the court was held;
24
3. That the defendant is named, or if his name can not be
discovered, that he is described by a fictitious name, with the
statement that his real name is to the jury unknown;
4. That the crime was committed within the jurisdiction of
the court, except where, as provided by law, the act, though done
without the county in which the court is held, is triable therein;
5. That the crime was committed at some time prior to the
finding of the indictment, and within the time limited by law for
the commencement of an action therefor;
6. That the act or omission charged as the crime is clearly
and distinctly set forth, in ordinary and concise language, without
repetition, and in such a manner as to enable a person of common
understanding to know what is intended;
7. That the act or omission charged as the crime is stated
with such a degree of certainty as to enable the court to pronounce
judgment, upon a conviction, according to the right of the case.
The Codes and Statutes of Oregon, title XVIII, ch VIII, 1314 (Bellinger &
Cotton 1901) (emphases added). The last sections requirement, read in a
straightforward manner, deems an indictment sufficient if it sets out the act or
omission charged, i.e., the matter, with such a degree of certainty as to
/////
/////
/////
/////
/////
25
authorize the court to pronounce judgment, e.g., pass sentence, on the
defendant.
10

The notion that the indictment must include the specific crime for
which the trial court imposes judgment was not novel. It is a fundamental
principle of common law that a defendant may not be tried for one crime and
convicted of another. State v. Howard, 41 Or 49, 53, 69 P 50 (1902); see also
State v. Trueax, 315 Or 396, 400-01, 845 P2d 1291 (1993) (when petit jury
finds defendant guilty of second-degree sodomy (victim under the age of 14)
but grand jury indictment alleged third-degree sodomy (victim under the age of
16), proper remedy was to vacate conviction for second-degree sodomy and
remand for entry of judgment of conviction for third-degree sodomy and for
resentencing). Contemporaneous American criminal law treatises plainly
contemplated that the prosecution and authorized punishment were defined and
bounded by the determinations of the grand jury:

10
Similarly to the discussion above, section 1315 of those statutes
provided that an indictment was not insufficient if there was defective in form,
as opposed to substance, that did not prejudice the defendant:
No indictment is insufficient, nor can the trial, judgment, or
other proceedings thereon be affected by reason of a defect or
imperfection in matter of form which does not tend to the prejudice
of the substantial rights of the defendant upon the merits.
(Emphasis added.)
26
[E]very wrongful fact, with each particular modification therof,
which, in law, is required to be taken into the account in
determining the punishment upon a finding of guilty, must be
alleged in the indictment.
This doctrine is fundamental. Originating in natural reason
and abstract justice, it has been adopted into the common law and
confirmed by our written constitutions.
* * * * * .
The rule, which our jurisprudence has adopted from natural
reason and justice, is that with which we began; namely, that the
indictment must allege every fact and modification of fact legally
essential to the punishment to be inflicted.
This doctrine pervades the entire adjudged law of criminal
procedure. It is made apparent, not alone by a single case, but by
all the cases. The illustrations of it are without end; as,
* * * * * .
We might carry this sort of illustration through the entire
alphabet of crimes, but it is needless. Specific instances appear in
numerous places throughout these volumes. The result is that in
every case, with no exception, the common law requires each
individual thing which itself or a statute has made an element in
that wrongful aggregation out of which the punishment proceeds,
to be alleged in the indictment. The court, in adjudging the
punishment, or the jury, in assessing it, as is done in some of our
States, can take into its consideration nothing except what is
specifically charged.
* * * * * .
* * * Under every sort of constitution known among us, an
indictment which does not substantially set down, at least in
general terms, all the elements of the offence every act or
omission which the law has made essential to the punishment it
imposes is void. * * * Yet none of our constitutions forbid the
abolishing of the common-law forms, if other adequate ones are
provided in their stead.
27
* * * Where the Constitution requires, for example, an
indictment, its effect is not to prohibit all legislative changes in
form. But the fulness stated in the last paragraph is still required.
1 Joel Prentiss Bishop, New Criminal Procedure 77, 81, 84, 98a-99, pp 47,
48-49, 56-57 (1895) (emphases added). And Bishops treatises fully recognized
a legislatures ability to extract the Byzantine formalism of pleading
requirements up and to the point where it allowed omission of a fact upon
which punishment hinged. Joel Prentiss Bishop, Commentaries on the Law of
Statutory Crimes 371, p 248 (1873) (It is obvious that the rule thus stated is
the leading one as to the limits of the legislative power to control the form of
the indictment. The indictment * * * must set out, not only such facts as
constitute a crime, but all which necessarily enter into the particular criminal
compound to which the law attaches the particular punishment to be inflicted.
(emphasis added)).
11

11
Also, it must be noted that Bishops treatises did not contain even the
most strident statement of the principle:
[W]hen it is provided by the Constitution that a person shall be
exempt from answering any criminal charge except on indictment
or information, such provisions place it beyond the power of the
Legislature to dispense with the statement of the indictment of that
which is essential to the description of the offense.
And it has been said in this connection: We do not doubt the
power and right of the Legislature to prescribe, change or modify
the forms of process or proceedings in: all civil actions, and to
determine what shall be deemed a sufficient allegation, in form or
substance to bring life merits of a case before the court. But, in
28
d. Case law
This court has recognized that the constitutional provisions guaranteeing
the rights to jury trial, to demand the cause and nature of the accusation, and to
grand jury indictment operate in tandem to prohibit the legislature from
allowing an indictment to omit any factual allegations that constitute the
specific crime for which the defendant faces prosecution and judgment:
The constitution of Oregon provides that no person shall be
charged in any circuit court with the commission of any crime or
misdemeanor made punishable by law except upon indictment
found by a grand jury. Const, Art VII, section 18. An indictment
is a written accusation of one or more persons of a crime or
misdemeanor, preferred to, and presented upon oath by, a grand
jury. [4 William Blackstone, Commentaries on the Laws of
England 299 (1796)]. The objects of an indictment are (1) to
inform the accused of the nature and character of the criminal
offense with which he is charged with sufficient particularity to
enable him to make his defense, (2) to identify the offense so as to
enable the accused to avail himself of his conviction or acquittal

criminal prosecutions, the exercise of this right is limited and
controlled by the paramount law in the Constitution. It has for
centuries since the declaration in Magna Charta, been the boast of
the common law, that it protects with jealous care the rights of the
accused. * * * [I]t requires that no person shall be held to answer,
until the accusation against him is formally, fully and precisely set
forth, that he may know of what he is accused, and be prepared
to meet the exact charge against him. This right of the respondent
has ever been regarded as sacred and essential to the protection of
the individual citizen. In all the changes of forms, and in the
principles and practice of the law, this right has remained
untouched and unchanged. * * * .
Howard C. Joyce, Joyce on Indictments 46, 52-53 (1908) (quoting State v.
Learned, 47 Me 426, 432 (1859)).
29
thereof in the event that he should be prosecuted further for the
same cause, and (3) to inform the court of the facts charged so that
it may determine whether or not they are sufficient to support a
conviction. * * * .
* * * * * .
Section 11 of Article I of the state constitution guarantees
to every person accused of crime the right to demand the nature
and cause of the accusation against him. We have recognized that
this guaranty is absolute and is peremptorily binding upon the
courts, but we have held that it does not prevent the legislature
from providing for the simplification of indictments through the
elimination of unnecessary verbiage. State v. Dormitzer, 123 Or
165, 261 P 426 [(1927)]. Simplification of pleading may be of
benefit to an accused, as it tends to clarify the charge against him,
but it has been held that the legislature may not constitutionally
authorize the omission from an indictment of allegations necessary
to describe a specific crime. It is not within the power of the
legislature to declare that to be an indictment which does not set
forth those elements of a criminal offense required by the
constitution to be contained in an indictment.
State v. Smith, 182 Or 497, 500-02, 188 P2d 998 (1948) (citations to other
jurisdictions and secondary sources omitted) (emphases added).
Accordingly, early cases from this court have sustained demurrers to
indictments that fail to include an ingredient of the specific crime charged.
12

12
Those cases stand apart from a related but fundamentally different
line of cases concern the propriety of sustaining demurrers to indictments on
grounds that, although including the ingredients of the charged offense, are not
sufficiently particular and certain to inform the defendant of the cause and
nature of the crime charged. See, e.g., State v. Dougherty, 4 Or 200 (1871). In
that case, for example, the court sustained defendants demurrer to an
indictment that alleged that they did unlawfully and feloniously aid and were
concerned with setting up a lottery for money. Dougherty, 4 Or at 200. In
describing the defect, this court observed:
30
The first such case appears to have been State v. Moyer, 76 Or 396, 149 P 84
(1915), in which the defendant was charged with violating the contemporary
arson statute, which provided:
If any person shall willfully and maliciously burn in the
nighttime any church, court house, * * * or any * * * mill, barn,
stable, shop, or office of another, * * * such person shall be
deemed guilty of arson.
Moyer, 76 Or at 398 (citation omitted) (emphasis added). The indictment,
however, provided:
The said Geo. F. Moyer, on the 21st day of March, 1914, *
* * did then and there wrongfully, unlawfully, feloniously,
willfully, and maliciously, in the nighttime, set fire to and burn a
stable, to wit, the Jordan Valley Livery-stable. * * *
Moyer, 76 Or at 396. The defendant demurred on grounds that the indictment
failed to allege the crime of arson because it failed to allege that the barn
belonged to another. The trial court sustained the demurrer, but it allowed the

By the language of this indictment it is not possible to
determine what particular unlawful act, or lottery transaction, or
scheme, the defendants are charged with aiding and being
concerned in setting up. * * * [F]rom the language of this
indictment, they are not furnished with the slightest intimation of
what particular transaction or scheme they are charged with having
aided or being concerned in setting up. By what act did they aid,
and in what manner were they engaged, in setting up the forbidden
scheme? What was the nature of the lottery scheme referred to?
The language of the indictment answers none of these questions.
How could the defendants, with any certainty, prepare for their
defense?
4 Or at 205 (emphasis in original).
31
district attorney to amend the indictment without submitting the matter to
another grand jury. Id.
This court held that the trial court erred in so allowing:
Our Constitution contains the only provision which
authorizes such an amendment, but only as to form; and
there seems to be a well-recognized distinction between
matters that are purely matters of form and matters that go to
the substance of the indictment, namely, formal matters
which are not essential to the charge and merely clerical
errors, such as where the defendant cannot be misled to his
prejudice by the amendment, would be the only cases which
are permissible under our Constitution. But where there is
an omission or misstatement which prevents the indictment
from showing on its face that an offense has been
committed, or to charge the particular offense, the test of
the amendment is whether the same defense is available to
the defendant after the amendment as before and upon the
same evidence. * * * .
Moyer, 76 Or at 399 (emphasis added); cf. State v. Wright, 19 Or 258, 259-61,
24 P 229 (1890) (indictment for burglary that did not allege owner of building,
as was required under the common law, held sufficient when the statutory
definition did not refer to buildings owner).
This court has consistently reinforced the principles stated in Smith and
Moyer. For example, in State v. Wimber, 315 Or 103, 843 P2d 424 (1992), this
court cited both cases with approval in upholding an amendment to an
indictment which shortened the alleged time period that the offenses occurred to
bring them within the statute of limitations. Wimber, 315 Or at 113-15. The
court relied on Moyer to identify its proper analysis:
32
Consistent with the holding in State v. Moyer, supra, our
analysis proceeds as follows:
(1) Did the amendment alter the essential nature of the
indictment against defendant, alter the availability to him of
defenses or evidence, or add a theory, element, or crime? * * * .
(2) Did the amendment prejudice defendant's right to notice
of the charges against him and to protection against double
jeopardy? * * * .
(3) Was the amendment itself sufficiently definite and
certain? * * * .
[And if] the amendment deleted allegations, we ask one
additional question.
(4) Did the remaining allegations in the indictment state the
essential elements of the offenses?
Wimber, 315 Or at 114-15 (emphasis added). After discussing Smith with
approval, the court held that the amendment comported with the constitutional
right to indictment by grand jury:
The constitutional purposes of requiring an indictment by grand
jury were met here. No new or different theory, element or crime
was added. To the contrary, the indictment returned by the grand
jury was narrowed. The amendment made by the trial court was a
permissible amendment as to a defect in the form of the
indictment, and the trial court did not err in making it.
Wimber, 315 Or at 115 (footnote omitted) (emphasis added).
Even where this court has considered an amendment to an indictment that
added something, this court has adhered to the limitations in Smith, Moyer,
and Wimber. For example, in State v. Woodson, 315 Or 314, 845 P2d 203
(1993), a grand jury returned an indictment captioned as attempted rape in the
33
first degree but, because of a clerical error, contained allegations in the body for
the completed crime of first-degree rape. 315 Or at 316-17 & n 3. Over the
defendants objection, the trial court added text to allege attempted rape to the
body of the indictment. Id. at 317. This court explained why the change
accorded with the four-part inquiry under Wimber and Moyer:
Attempted rape is a lesser included offense of rape. Even if
the indictment had not been amended, the jury could have found
defendant guilty of attempted rape in the first degree. Thus, the
interlineation effected no change in the indictment; the indictment
already charged defendant with, and he could have been convicted
of, attempted rape.
Woodson, 315 Or at 319 (citations and footnote omitted) (emphasis in original).
Thus, the amendment did not violate the constitutions grand jury provision
because, in part, the change did not add any fact to the specific crime charged.
Consequently, in Pachmayr, this court concluded that the trial court did
not err in allowing the prosecutor to amend an indictment that originally alleged
that the defendant committed assault in the second degree, viz, recklessly
causing serious physical injury to another by means of a deadly weapon
under circumstances manifesting extreme indifference to the value of human
life. 344 Or at 492-95. The prosecutor amended the charge, which arose out of
an automobile collision, to specify that the injury was caused by a dangerous
weapon. Id. at 484. Again, this court upheld the amendment because it did
not add anything material to the allegations in the original indictment:
34
The original indictment alleged not only that the car was designed
to be capable of use in a seriously injurious fashion, but also that
the circumstances of its use made it capable of causing such injury.
The original indictment alleged that defendant drove the car
recklessly. A car that is not designed to be capable of causing
serious injury and that is, therefore, not a deadly weapon,
nonetheless may be a dangerous one if it is used recklessly.
Before it was amended, the indictment also alleged that defendant
caused serious injury to another under circumstances manifesting
extreme indifference to the value of human lifethe precise
circumstances of use that make an object dangerous. Therefore,
although the original indictment did not use the phrase dangerous
weapon, it contained all of the allegations that were necessary to
make out a charge under that theory: that defendant drove a car,
and did so under circumstances that made it capable of causing
death or serious physical injury.
The original indictment was defective because it included a
design allegation when the car was not designed to be capable of
causing serious injury. But like the allegation in Woodson, that
additional allegation, although inaccurate, did not render the
indictment insufficient. Including that extra allegation was not,
therefore, a defect of substance. Because the original indictment
alleged that defendant used the car under circumstances that
rendered it capable of causing injury, it already charged the crime
of assault with a dangerous weapon. The amended indictment did
not require defendant to defend against any allegations that were
not already included in the original indictment.
Pachmayr, 344 Or at 492-93 (citations omitted) (emphasis added).
/////
/////
/////
/////
35
When considering the text in context and the case law cited above,
13
the
constitutional provision guaranteeing grand jury indictment was founded on the
notion that the indictment authorized and framed the criminal prosecution. The
indictment must contain all facts that the legislature had identified as giving rise
to criminal punishment and it was those facts that the defendant had the right
to be submitted to a jury for proof beyond a reasonable doubt. Moreover, the
voters took back the peoples place, as the grand jury, to authorize the
government to commence a criminal prosecution of an individual and the extent
to which the executive and judicial branches could subject that person to
criminal punishment.

13
It appears that the little specific history available regarding the
enactment of the amendment accords with the analysis given above. The voters
in 1908 approved the amendment making grand jury indictment mandatory
based on a citizen initiative sponsored, in principal part, by Charles H. Carey.
Official Voters Pamphlet, General Election, June 1, 1908, 116-117 (set out at
App-5-6). By law, the sponsors were allowed to submit a supporting argument
in the voters pamphlet. Or Laws 1907, ch 226, 8. That argument rigorously
emphasized the historical function that the grand jury has played as a bulwark
against unfounded prosecution:
The whole history of Anglo-Saxon institutions is a battle
against this very thing: the power of one man to brand another with
crime and lodge him in prison. It is a return to the Star Chamber
decrees of Charles I and the time was when Englishmen and
Americans thought no time or money thrown away which
protected every citizen from arbitrary arrest and arbitrary
arraignment and trial at the will of a single man.
Voters Pamphlet at 116 (emphasis added) (argument set out in full at App-5).
36
C. Until 1988, this court held that legislatively-identified facts that concern
the commission of the offense and authorize increased punishment
constitute ingredients of the specific crime charged, even when those
facts do not appear in the statutory definition of the crime.
Here, the indictment alleged each element of kidnapping in the second
degree, as defined by ORS 163.225 as a Class B felony. The question remains
then whether the four facts in the separate dangerous offender statute, ORS
161.725(1)(b), are properly allegations necessary to describe a specific crime
when the trial court contemplates whether to impose a dangerous offender
sentence. In other words, must the indictment contain not only those facts
included in the principal offense but also those in another statute that subject a
defendant to even greater punishment when those other facts are established.
1. This court strayed from strict adherence to common-law pleading
rules when it sanctioned the legislatures omission of prior
convictions from the indictment in recidivism statutes.
When considering whether prior convictions must be alleged in the
indictment to pursue sentencing under a recidivism statute, this court initially
concluded that the general rule required their inclusion in the indictment. The
first decisions on that issue appear to be this courts review of two separate
prosecutions of the same defendant under Oregons Prohibition Act. State v.
Newlin, 92 Or 589, 182 P 133 (1919); State v. Newlin, 92 Or 597, 182 P 135
(1919). In each case, albeit without much analysis, this court held that the
failure to allege the prior conviction in the indictment prevented the trial court
from imposing the higher penalty:
37
It was also suggested upon the argument that it was error to
adjudge the defendant guilty of a second offense and sentence him
accordingly, in the absence of an allegation in the indictment
charging the prior conviction, and this seems to be the general
holding of the courts. 22 Cyc. 356, and cases there cited.
The judgment will therefore be set aside, and the cause
remanded to the circuit court, with direction to resentence the
defendant, without taking into consideration his prior conviction
for a like offense.
Newlin, 92 Or at 596-97.
It is suggested in the brief that the court erred in imposing a
sentence as for a third conviction. There is no allegation in the
indictment that the defendant had been previously convicted of like
offenses, and, as shown in the Johnson Case, just decided, such a
sentence was not authorized in the absence of a proper allegation
in the indictment. 22 Cyc. 256.
For this error the judgment of the circuit court is set aside,
and the cause remanded, with directions to resentence defendant
without regard to any previous conviction.
Newlin, 92 Or at 599-600.
However, not 10 years later, this court reached the opposite conclusion
with regard to a challenge under the Habitual Criminal Act. State v. Smith, 128
Or 515, 273 P 323 (1929). There, the defendant was convicted in a prosecution
for receiving stolen property on an indictment that contained no reference to
any prior convictions. The prosecutor then alleged in a new criminal
information that defendant had committed prior felonies that brought him under
the Habitual Criminal Act. The Habitual Criminal Act had previously required
the indictment contain allegations of the prior convictions. But the legislature
38
had recently amended the act to allow for the very procedure followed by the
district attorney. Pursuant to those procedures, the court then empanelled a
jury, which found that defendant was the same person who committed the prior
offenses. Smith, 128 Or at 517-18, 521.
Relying on the statute, this court rejected the defendants claim that the
indictment was defective because it failed to allege the prior convictions:
Defendant likewise complains that the indictment upon
which he was tried for receiving stolen property should have
alleged his prior conviction. This is erroneous. Under the statutes
in some jurisdictions, the indictment shall allege the prior
convictions, and there are many decisions in the books that support
that contention. This was made a requirement in our own
jurisdiction by the enactment of chapter 70, General Laws of
Oregon 1921; but this act was repealed by section 5 of chapter 334,
General Laws of Oregon 1927, the statute under consideration.
Under this statute, the proceeding is had, not for the purpose of
determining the guilt or innocence of the defendant, but for the
purpose of identifying him as the person alleged to have been
convicted of previous felonies. It provides for a special
supplementary proceeding, and is much fairer to the defendant than
to charge him with crime by an indictment and allege therein his
conviction of half a dozen previous felonies. On this subject, Dr.
Bishop, an eminent authority on criminal law, has written:
Under the ordinary forms of the statutory provision,
if the offense is the second or third, and by reason thereof
the punishment is to be made heavier, this fact must appear
in the indictment; because by the rules of criminal pleading,
every particular which makes heavier the punishment to be
inflicted must be set out. Still there is no reason why the
law should not, as in some localities it does, permit this
matter to be withheld from the jury, or even omitted from the
indictment, until the prisoner has been convicted of the
offense itself and then brought forward in some proper
manner in aggravation of the punishment. A course like this
39
is specially fair to the prisoner as preventing a prejudice
against him by the jury from the former conviction, which is
not legal evidence. 1 Bishop on Criminal Law (9th ed
[1923]) 961.
Smith, 128 Or at 521-22 (emphasis added).
However, when this court considered nearly 30 years later a defendants
argument challenging the inclusion of prior convictions pursuant to a different
recidivism statute one that lacked a statutory procedure to allege the prior
convictions in a document after conviction the court deferred to the general
common-law rule. State v. Waterhouse, 290 Or 424, 307 P2d 327 (1957).
There, the indictment alleged that the defendant committed the misdemeanor
offense of interfering with the privacy of another, ORS 167.165 (1955),
repealed by Or Laws 1963, ch 340, 1, and that he had been convicted
previously of rape, then codified at ORS 163.220 (1955), repealed by Or Laws
1971, ch 743, 432. Waterhouse, 209 Or at 426-27. Another statute, provided
that [v]iolation of ORS 163.210, * * * 167.165 or * * * by any person who
has previously been convicted of a violation of any one, or more than one, of
those sections, is punishable, upon conviction, by imprisonment in the state
penitentiary for an indeterminate term not exceeding the natural life of such
person. ORS 167.050 (1955), amended by Or Laws 1963, ch 353, 1. This
court held that inclusion of the prior conviction not only was permissible but
was mandatory in the absence of statutory authority to the contrary.
Waterhouse, 209 Or at 429-31. App-7-9. Notably, the court rooted its decision
40
in common law and did not consider the issue with regard to the constitutional
grand jury guarantee. Id.
Not a year later, another defendant (at last) contended that Article VII
(Amended), section 5, required that the indictment include the prior conviction
in order to proceed under the Habitual Criminal Act. State v. Hicks, 213 Or
619, 640-41, 325 P2d 794 (1958). This court rejected the challenge, holding
that the facts found pursuant to the Habitual Criminal Act were not among those
constituting the crime charged and relevant only to punishment:
The words charged * * * with the commission of any
crime * * * [in Article VII (Amended), section 5 (1927)], refer to
the conventional charge accusing a defendant of criminal acts for
the commission of which the state seeks to impose punishment.
This court has uniformly construed that provision as being
inapplicable to an information under the Habitual Criminal Act. If
such had not been the construction, the act could never have been
applied in this or in many other states.
In Ex parte Wessens, 89 Or 587, [589,] 175 P 73 [(1918)],
referring to the charge as used in Article VII (Amended), 5 of
the Constitution, this court said, The charge there meant is one
upon which the person accused may be put upon trial and
convicted by final judgment. The court was distinguishing
between a complaint before a magistrate and a charge of crime
before a court which was to determine guilt or innocence, and it
was held that the requirement of indictment by a grand jury was
inapplicable to the proceeding before a magistrate. Defendant can
take no comfort from the language used. We have repeatedly held
that an habitual criminal proceeding is a continuation of the
original prosecution. It creates no offense and is merely a
proceeding to determine the penalty to be imposed for the crime
41
with which he was charged. Castle v. Gladden, [201 Or 353, 270
P2d 675 (1954)]. The charge of crime by the defendant was
based on an indictment. Only the facts relevant to the extent of
punishment were set forth in the information.
Hicks, 213 Or at 641-42. Thus, at least when this court decided Hicks in 1958,
it had construed the grand jury indictment guarantee to include facts of the
specific crime charged but not prior convictions (when the legislature allowed a
different procedure).
This court applied that reasoning when, upon conviction for an offense
defined by one statute, the prosecutor filed an information alleging a fact, other
than a prior conviction, from another statute that had a bearing on the
authorized punishment. Five years after this court decided Hicks, in State v.
Blacker, 234 Or 131, 380 P2d 789 (1963), the defendant had pleaded guilty to
an indictment alleging assault with a dangerous weapon. 234 Or at 137.
Thereafter, the district attorney filed an information alleging that the defendant
had committed that felony while armed with a concealable pistol and without
having a license to carry such a weapon. 234 Or at 132-33. The pertinent
statute provided:
Any person who commits or attempts to commit any felony
within this state while armed with any pistol, revolver, machine
gun or other firearm capable of being concealed upon the person,
without having a license or permit to carry such firearm, upon
conviction of the felony or of an attempt to commit the felony,
shall, in addition to the punishment prescribed for the crime of
which he has been convicted, be punished by imprisonment in the
penitentiary for not more than 10 years. Such additional period of
42
imprisonment shall commence upon the expiration or other
termination of the sentence imposed for the crime of which he
stands convicted and shall not run concurrently with such
sentence.
ORS 166.230 (1961), repealed by Or Laws 1971, ch 779, 7 (emphasis added).
Upon receiving the defendants guilty plea to assault with a dangerous
weapon, the trial court sentenced the defendant to a term not to exceed 10 years
in the state penitentiary for the crime of assault with a dangerous weapon. The
trial court also found that he was armed with a concealable pistol without a
license and provided in the judgment that he should be imprisoned an additional
five years, pursuant to ORS 166.230 (1961). Blacker, 234 Or at 132-33.
The defendant appealed, arguing that the trial court lacked authority to
impose the additional sentence of five years because the indictment alleged
neither that the pistol was concealable nor that the defendant lacked a license or
permit. Blacker, 234 Or at 133-34. This court noted that ORS 166.230 (1961)
did not constitute a separate crime but, rather, provided an enhanced penalty for
the principle crime:
It is noted that ORS 166.230 does not provide that the
carrying of a concealed firearm without a license or permit is in
itself a crime. It provides only that the person who commits or
attempts to commit any felony while so armed shall suffer a
greater penalty than another who has committed a felony not so
armed.
Blacker, 234 Or at 134. That distinction, however, did not dissuade the court
from holding that, again under the general rule applicable under common law,
43
the trial court was without authority to impose the enhanced sentence under
ORS 166.230 (1961) when the indictment had not contained those operative
factual allegations. Blacker, 234 Or at 135-37.
2. This court implemented the same analysis to exempt from the jury
issues of fact pertaining to the defendant.
Defendants also presented this court with challenges to recidivism
statutes on the basis that they deprived the right to trial by jury under Article I,
section 11. State v. Hoffman, 236 Or 98, 104, 385 P2d 741 (1963). In 1961, the
Habitual Criminal Act was amended to authorize a judge (rather than a jury)
determine whether a defendant had been convicted of the prior felonies. Or
Laws 1961, ch 648, 4, 13. Relying on its reasoning in the indictment cases,
the court rejected the defendants contention because the existence of a prior
conviction was not an ingredient of any offense:
It is true that at common law a prior conviction was
regarded as a part of an indictment which must be established
when the Crown sought to invoke an enhanced penalty for the
crime charged and no procedure otherwise had been established by
legislative action. State v. Blacker, 234 Or 131, 380 P2d 789; State
v. Waterhouse, 209 Or 424, 307 P2d 327.
The legislature, after setting forth what must be alleged to
state a crime (ORS 132.540), also stated therein that the
indictment shall not contain allegations that the defendant has
previously been convicted of the violation of any statute which
may subject him to enhanced penalties. Thus the legislature
provided a change in the procedure with reference to the pleading
of prior convictions of crimes. Contrary to the common-law view,
prior convictions are not now an ingredient of any offense against
the state, but are to be considered only in determining the sentence
to be pronounced by the court.
44
The legislature has never declared that being an habitual
criminal is a crime. As stated by this court, It is not an offense to
be an habitual criminal; it is merely a status. State v. Durham,
[177 Or 574, 582, 164 P2d 448 (1945)]. * * * [A]nd, as stated in
Castle v. Gladden, [201 Or 353, 360, 270 P2d 675 (1954)], the act
itself merely provides a proceeding to determine the penalty to be
imposed on the main charge.
* * * * * .
In our opinion, the words criminal prosecution, as set
forth in Article I, Section 11 of our constitution, refer to
establishing before a jury acts declared to be criminal by legislative
action. Since proof of prior crimes is not a proper matter in an
indictment for a present crime, but only proof that prior
punishment has not been effective to reform the person, the
defendant was not entitled to a jury trial relative to his prior
convictions.
Hoffman, 236 Or at 105, 107 (citations omitted). Thus, the court reasoned that
the right to a petit jury finding hinged on whether the fact at issue needed to be
alleged in the indictment. Because prior convictions did not constitute a part of
the crime charged, the defendant had no expectation to a jury finding.
This court then extended its analysis to facts other than recidivism that
did not concern the specific crime charged. For example, in State v. Dixon, 238
Or 121, 122, 393 P2d 204 (1964), the defendant had pleaded guilty to statutory
rape in violation of ORS 163.210 (1953), repealed by Or Laws 1971, ch 743,
432. The rape statute provided:
Any person over the age of 16 years who carnally knows
any female child under the age of 16 years * * * is guilty of rape,
and shall be punished by imprisonment in the penitentiary for not
more than twenty years.
45
ORS 163.210(1) (1953). Other statutes provided enhanced penalties for certain
sexual offenders whose offenses involved a child victim and who were
determined to be mentally disturbed and predisposed to such criminal activity:
Every person convicted of any crime punishable under
ORS 163.210 * * * may, upon conviction and before sentence,
forthwith be given a complete psychiatric examination.
ORS 137.112(1) (1961), repealed by Or Laws 1971, ch 743, 432.
After the presentence hearing and upon the consideration of
the psychiatric report required by ORS 137.112 to 137.115, the
court may, in its discretion, in lieu of any other sentence authorized
by law for such crime, sentence any person convicted under ORS
163.210 * * * to an indeterminate term not exceeding the natural
life of such person if:
(1) The offense involved a child under the age of 16 years;
and
(2) The court finds that such person has a mental or
emotional disturbance, deficiency or condition predisposing him to
the commission of any crime punishable under [certain statutes
defining sex offenses, including ORS 163.210] to a degree
rendering the person a menace to the health and safety of others.
ORS 137.111 (1961), repealed by Or Laws 1971, ch 743, 432.
After the trial court imposed an indeterminate life sentence pursuant to
ORS 137.111 (1961), the defendant argued that the statutes unconstitutionally
deprived him of the right to jury. 238 Or at 124. This court rejected his claim,
reasoning that the legislature could allocate to the judge sentencing
enhancement fact finding that concerned the defendant:
The trial court found that this defendant fell within the
terms of sections (1) and (2) of ORS 137.111. Upon pleading
46
guilty to an offense involving a child under 16 years of age, the
defendant satisfied ORS 137.111(1) * * * .
* * * * * .
The remaining question is whether the enhanced penalty
scheme outlined in ORS 137.111 through ORS 137.117 is
constitutional. The defendant contends that since ORS 163.210
carries a maximum penalty of twenty years his rights are infringed
when he is sentenced to a greater term after a hearing under ORS
137.114. The defendant also contends that the finding of the trial
court (as required under ORS 137.111(2)) that the defendant is a
menace to others is a factual determination. He therefore says that
he should have had a jury trial on that question.
This court has held in analogous cases that it is within the
power of the legislature to designate certain factual situations in
which criminal penalties may be enhanced without the necessity of
a trial by jury. See, e. g., State v. Hoffman, 236 Or 98, 385 P2d
741 (1963). In the instant case, a jury was not required.
Dixon, 238 Or at 123-24. Thus, this court held that facts regarding a
defendants mental fitness and predisposition to commit future offenses, like the
fact of a prior offense, did not implicate Article I, section 11.
3. This courts decisions immediately preceding Wagner adhered to
Smith: When the legislature ties punishment to a fact concerning the
commission of the offense, the legislature may not exempt that fact
from being pleaded and proven.
It is with that historical procession that this court considered the issue
raised in State v. Quinn, 290 Or 383, 399-407, 623 P2d 630 (1981), whether a
jury rather than a judge was required to find whether the defendant committed
murder deliberately before a death sentence could be imposed. The Quinn
court concluded that, because the deliberateness [went] to the criminal acts for
47
which defendant is to be punished[,] the statute violated the right to jury trial
in all criminal prosecutions guaranteed by Article I, section 11. Quinn, 290 Or
at 405-07. The court recognized the guiding principle on which it had allowed
some facts (those that did not go to the act for which the defendant was to be
criminally punished) to be reserved for the judge:
We have upheld other enhanced penalty statutes even
though they required additional post-trial findings by the court as a
basis for a greater sentence. In particular, we have upheld the
former Habitual Criminal Act and sexually dangerous offender
statutes over challenges that the procedures violated the right to
trial by jury of the facts upon which enhanced punishment was to
be based. The difference between those statutes and [the statute
regarding deliberateness], however, is found in the simple
principle that the facts which constitute the crime are for the jury
and those which characterize the defendant are for the sentencing
court.
Quinn, 290 Or at 405. This court quoted from Hoffman with approval and
noted how deliberateness fundamentally differed from the existence of a prior
conviction:
Unlike the prior convictions in Hoffman, deliberation in the
act of homicide is part of an act declared by the legislature to be
criminal. Because the extent of punishment is to be determined
according to the existence of that proscribed fact, it must be
proved at trial.
Quinn, 290 Or at 406 (citation omitted). In other words, because deliberateness
was essentially a part of the criminal conduct and the legislature had identified
that fact as bearing on the punishment that defendant faced, deliberateness was
part of the specific crime under consideration in the criminal prosecution.
48
In State v. Ice, 343 Or 248, 258, 170 P3d 1049 (2007), this court took a
different proposition from Quinn, that Article I, section 11, has no effect on
factual determinations that the legislative has denominated as sentencing
enhancement, but that are not part of the jurys determination of guilt or
innocence, no matter how the legislature has chosen to define the crime at
issue. (Emphasis added.) But the courts statement in Ice, based on a
quotation of Hoffman in Quinn regarding which facts do not implicate Article I,
section 11, leaves unaddressed the question underpinning the whole exercise:
What exactly is the specific crime for which the defendant is facing a criminal
prosecution? In other words, which facts do implicate Article I, section 11?
Because those facts properly are part of the jurys determination of guilt as a
matter of constitutional law, no matter whether the legislature identifies those
facts as elements or sentencing enhancements. Quinn, 290 Or at 406.
In defendants view of this courts case law, a fact is part of the specific
crime that the jury must find when it is a fact concerning the criminal conduct
that the legislature has identified as bearing on punishment. If the fact meets
that test, then no matter how the legislature identifies or labels it an element
or sentencing enhancement it is part of the specific crime and implicates
Article I, section 11, and Article VII (Amended), section 5. That fact must be
alleged in the indictment and submitted to a jurys determination.

49
The courts reaffirmation of Smith in Quinn made resolution of the issue
in State v. Wedge, 293 Or 598, 652 P2d 773 (1982), relatively straightforward.
There, the defendant argued that imposition of a firearm minimum term of
imprisonment violated his right to trial guaranteed by Article I, section 11,
when the jury had not found he personally used or threatened to use a firearm.
Wedge, 293 Or at 602-03. After quoting extensively from Quinn, the court held
that the legislature had impermissibly relegated the factual determination to the
judge:
In Quinn we stated as a simple principle that facts which
constitute the crime are for the jury and those which characterize
the defendant are for the sentencing judge. The application of this
simple principle is not always so simple. The present fact to be
found describes an act in the commission of the crime which
determines the maximum penalty to which the defendant is
subject.[
14
] In order to decide whether a jury determination is
required in the present case, one must look beyond this
categorization. We also said in Quinn that facts which go to the
criminal acts for which a defendant is to be punished must be
proved to a jurys satisfaction unless admitted or waived.
The use or threatened use of a firearm is a finding that
goes to the criminal act for which this defendant is punished, and
thus is closer to an element of the crime than to a characterization
of the defendant. Also, in both Quinn and the present case the
finding in question is restricted to the one crime at issue in contrast
to the post-trial habitual criminal and the sexually dangerous

14
The observation by the court that the firearm finding determines the
maximum penalty appears to be plainly wrong. The firearm determination
subjected defendant to a 5-year gun minimum sentence, which the trial court
imposed to run concurrently with the 10-year minimum sentence the court
imposed for robbery, the principal offense. Wedge, 293 Or at 601, 603 n 4.
50
offender proceedings in which the scope of inquiry is not so
limited.
* * * * * .
Although the challenged statute is denominated an
enhanced penalty statute, in effect it creates a new crime. The jury
only considered evidence offered on the question of first degree
robbery, and convicted him of that offense, but the defendant was
sentenced on the basis of having been found guilty of the crime of
first degree robbery using a firearm. If the legislature had
actually described the crime as first degree robbery using a
firearm the use of a firearm would certainly be an element and
there would be no doubt defendant would have a right to a jury
determination of guilt. The legislature cannot eliminate
constitutional protections by separating and relabeling elements of
a crime.
Wedge, 293 Or at 607-08 (emphasis added).
This court did not explain whether Wedge presented a simple case to
apply the principle in Quinn (or if not, why?). Yet the holding of the decision
reaffirmed that facts relating to the offense which the legislature identifies as
bearing on punishment are subject to Article I, section 11.
This court revisited the issue in State v. Hart, 299 Or 128, 699 P2d 1113
(1985). There, the defendant argued that he had a right to a jury finding on the
amount of damages to be awarded in a restitution hearing. Hart, 299 Or at 136.
The defendant had been found guilty of assault in the second degree by means
of intentionally or knowingly causing serious physical injury to another. Id. at
137. This court rejected the argument, finding that those downstream monetary
consequences of the injury did not fall within the scope of Article I, section 11:
51
The seriousness of the injury inflicted by the defendant is
an element of the crime of assault, but the monetary amount of the
medical and other out-of-pocket expenses associated with the
injury is not. The monetary cost of the injury is neither an element
of the crime nor an act in the commission of the crime. Wedge,
293 Or at 406. Therefore, while the amount of the restitution order
might be termed an element of sentencing, it is not an element of
the crime of assault. We hold that defendant was not entitled to a
criminal jury trial under the Oregon Constitution on the issue of
restitution.
Hart, 299 Or at 137 (emphasis added).
This court considered the issue a final time in Ice, where the defendant
argued that Article I, section 11, gave him a right to a jury finding on facts
authorizing the trial court to impose consecutive sentences. Ice, 248 Or at 256.
After reviewing its decisions in Quinn, Wedge, and Hart, this court held that the
facts authorizing consecutive sentences did not implicate Article I, section 11,
because all three under consideration were facts involving an assessment of the
relationship between two crimes of which [the] defendant is guilty (e.g.,
whether to determine that each crime is a separate incident). Ice, 343 Or
at 261.
Because all three findings involve a comparison between two
crimes for which [the] defendant is to be punished, none of the
three can reasonably be deemed to constitute an element of either
crime.
Id. Thus, at least for purposes of the Article I, section 11, right to a trial by
jury, this court has continued to hold facts about the defendants commission of
the offense that authorize increased punishment must go to a jury.
52
D. The decision in Wagner diverged from 80 years of precedent and a
fundamental principle of Anglo-American jurisprudence; this court
should disavow it or clarify that the decision does not implicate Article
VII (Amended), section 5.
Fundamental to the Anglo-American legal tradition are the notions that a
grand jury must allege each ingredient of a felony offense in an indictment and
a petit jury must find those facts beyond a reasonable doubt before the
government has authority to enter a conviction against a person and impose the
criminal punishment authorized by the verdict:
This rule reflects two longstanding tenets of common-law
criminal jurisprudence: that the truth of every accusation against
a defendant should afterwards be confirmed by the unanimous
suffrage of twelve of his equals and neighbours, 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769), and that an
accusation which lacks any particular fact which the law makes
essential to the punishment is * * * no accusation within the
requirements of the common law, and it is no accusation in
reason, 1 J. Bishop, Criminal Procedure 87, p. 55 (2d ed.
1872).
Blakely v. Washington, 542 US 296, 301-02, 124 S Ct 2531, 159 L Ed 2d 403
(2004). This courts jurisprudence up and until 1988 was consistent with those
notions but allowed limited exceptions for prior convictions and a defendants
qualities or dangerousness at sentencing facts that did not concern the
commission of the offense.
State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) marked a departure
from this courts jurisprudence. In that decision, this court held that, in a
prosecution for aggravated murder, the indictment need not allege that
53
defendant acted deliberately, the first question for the jury in the penalty phase.
305 Or at 172. Set out below is the entirety of this courts analysis on the issue:
Defendant argues that the indictment failed to allege facts
that would give him notice that the death penalty would be sought
and the particular evidence of aggravating factors. Amici urge
that the indictment is insufficient in failing to allege in the
language of ORS 163.150(2)(a) that defendant deliberately
caused the death of the victim.
ORS 132.550(7) provides:
The indictment shall contain substantially the following:
* * *
(7) A statement of the acts constituting the offense in
ordinary and concise language, without repetition, and in such
manner as to enable a person of common understanding to know
what is intended;
The offense with which this defendant is charged is
aggravated murder as defined in ORS 163.095(2)(a)(E), which is
set forth at the outset of this opinion. The ultimate facts that make
up that offense are clearly alleged in the indictment. To be guilty
of aggravated murder one does not need to act deliberately. If
one is guilty of aggravated murder but the jury does not
unanimously find that the perpetrator acted deliberately, the guilty
one is not sentenced to death but is yet guilty of aggravated
murder. There is no requirement of pleading an indictment that
requires the indictment to set forth possible penalties that the law
may fix for guilt on a particular charge.
Wagner, 305 Or 171-172. The court did not cite or discuss any Oregon
constitutional provisions or any other decisions from this court.
The courts consideration of the issue was understandably truncated. The
defendant filed a 231-page brief, excluding appendices and memoranda, of
which approximately three pages touch on the point addressed. Appellants
54
Opening Brief (App Br) at 129-33, Wagner (S32635) (set out at App-10-14).
And even there, the defendant readily acknowledged that the [d]efendant
admitted to the deliberate and unprovoked strangulation of [the victim]. App
Br, Wagner, at 129-30 (emphasis added). The defendants real contention, in
fact, was that he had not been able to adequately prepare his defense because
the indictment did not provide sufficient [n]otice to the accused both of the
fact that the death penalty is being sought and also of the particular evidence of
aggravating factors. App Br, Wagner, at 132-33.
15
The state, for its part,
dedicated just over seven pages to the issue. Respondents Answering Brief
(Res Br) at 92-99, Wagner. The majority of its discussion urges this court to
not consider the issues, as they were wholly unpreserved. Res Br at 92-96,
Wagner. On the merits, the state addressed the issue in purely statutory terms
and noted that the Public Defender had advanced arguments in the Court of
Appeals to exclude such allegations from the indictment. Res Br at 97-99 &
n 44, Wagner.
To the extent that Wagner has been considered precedent for the meaning
of either Article I, section 11, or Article VII (Amended), section 5, this court

15
Amici, to their credit, appears to have adequately identified the issue,
albeit on page 59 of a 61-page brief and as the last of 12 points of error. Amici
Br, Wagner, at 59-60 (citing Quinn and Smith for proposition that deliberation
should have been included in the indictment pursuant to Article I, section 11,
and Article VII (Amended), section 5).
55
should disavow it as such now because the constitutional issues were neither
fairly presented nor considered by this court:
[W]e remain willing to reconsider a previous ruling under the
Oregon Constitution whenever a party presents to us a principled
argument suggesting that, in an earlier decision, this court wrongly
considered or wrongly decided the issue in question. We will give
particular attention to arguments that either present new
information as to the meaning of the constitutional provision at
issue or that demonstrate some failure on the part of this court at
the time of the earlier decision to follow its usual paradigm for
considering and construing the meaning of the provision in
question.
Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000).
Wagner based its analysis purely on statutory grounds. As the issue was
unpreserved at trial and not even asserted by the defendant on appeal, this court
did not undertake a thorough or rigorous look at the framers or voters intent
behind either Article I, section 11, or Article VII (Amended), section 5.
Severy/Wilson v. Board of Parole, 349 Or 461, 474, 245 P3d 119 (2010)
(interpretation may be so deficient that reexamination is appropriate
(emphasis added)). Its statement that deliberateness need not be alleged in an
indictment was not formulated either by means of the appropriate paradigm or
by some suitable substitute. Ciancanelli, 339 Or at 291. And, short of another
constitutional amendment, this court is the only body able to declare Wagner
wrong or inapplicable and correctly interpret the constitutional provisions that
affect every citizens fundamental rights. Stranahan, 331 Or at 53 (decisions
56
interpreting constitution should be stable and reliable but there is a similarly
important need to be able to correct past errors because [t]his court is the
body with the ultimate responsibility for construing our constitution, and if we
err, no other reviewing body can remedy that error).
This courts rejection of the unpreserved (and arguably unasserted) claim
in Wagner was followed in only two
16
subsequent decisions from this court.
State v. Ciancanelli, 339 Or 282, 290-10, 121 P3d 613 (2005) (age and extent to
which this court has relied on prior interpretation are appropriate
considerations). In State v. Terry, 333 Or 163, 184-85, 37 P3d 157 (2001), the
defendant (again as allegation of unpreserved error) relied on Quinn to argue
that the indictment must allege deliberateness. The defendant argued that,
although unpreserved, this court should reach his claim because the omission
either deprived the trial court of subject-matter jurisdiction or, alternatively,
constituted plain error. This court rejected the jurisdictional argument and
turned to plain error. Terry, 333 Or at 187. Rather than determine that the legal
principle that the defendant advanced was beyond dispute, the court observed
that Wagner controlled and Quinn was not directly on point:

16
One might argue that State v. Heilman, 339 Or 661, 125 P3d 728
(2005), is a third case. True, the court did cite and quote from both Wagner and
Terry in that opinion. Heilman, 339 Or at 671-72. However, that case, which
focused exclusively on Apprendi and its progeny, posed no state constitutional
question. Heilman, 339 Or 667 n 3.
57
As noted, for this court to do so, the alleged error must be
obvious, i.e., not reasonably in dispute. An analysis of Quinn
and Apprendi,[
17
] in appropriate context, demonstrates that, not
only is the alleged error not obvious, in fact, there was no error.
* * * * * .
Thus, under the statutory scheme at issue in Quinn,
deliberation served to enhance the penalty for intentional murder
from life imprisonment to death, and indirectly created a separate
crime of deliberate murder. Following this courts decision in
Quinn, the legislature enacted statutes creating the crime of
aggravated murder. Separate crimes of murder and aggravated
murder are now defined statutorily. Because defendant was
charged under a different statutory scheme from the one at issue in
Quinn, that case does not support defendants argument.
In fact, in State v. Wagner, 305 Or 115, 172, 752 P2d 1136
(1988), vacated and remanded on other grounds 492 US 914, 109
S Ct 3235, 106 L Ed 2d 583 (1989), this court rejected an
argument much like the one defendant makes here.
Terry, 333 Or at 187. The court then quoted Wagner, placing emphasis on its
direct holding that [t]o be guilty of aggravated murder one does not need to act
deliberately. Terry, 333 Or at 187-88 (quoting Wagner, 305 Or at 172)
(italicized emphasis omitted).
/////
/////

17
Defendant also based his claim on a relatively recent United States
Supreme Court case, Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147
L Ed 2d 435 (2000). Terry, 333 Or at 184. The court rejected his argument,
because the jury not the judge found the facts which enhanced the sentence,
which is all that Apprendi required. Terry, 333 Or at 188-89.
58
Similarly, in State v. Johnson, 340 Or 319, 131 P3d 173 (2006), this court
relied on Wagner as precedent to reject the pleading deliberateness issue once
again:
This court has rejected the idea that the crime defined in
ORS 163.095aggravated murdersomehow imports additional
elements from ORS 163.150, the death penalty sentencing
provision. See, e.g., State v. Wagner, 305 Or 115, 171-72, 752 P2d
1136 (1988), vacd and remd on other grounds, 492 US 914, 109
S Ct 3235, 106 L Ed 2d 583 (1989) (Wagner I). Although
defendant suggests that Wagner I conflicts with more recent
federal and Oregon cases pertaining to the constitutional right to
jury trial, we see no conflict. The cases that defendant cites
suggest or hold that a jury must decide the deliberateness and
reasonable expectation of death questions set out in ORS
163.150(1)(b)(A) because, depending on how they are answered,
they may increase the punishment for the underlying offense.
However, nothing in those cases suggests that those questions
necessarily define a separate crime of capital aggravated murder
and, as such, that they must be set out in the indictment. See State
v. Sawatzky, 339 Or 689, 698, 125 P3d 722 (2005) (no authority
exists for defendants claim of a federal constitutional right to have
aggravating or enhancing factors alleged in indictment).
Johnson, 340 Or at 352. Especially because defendant relied primarily on case
law subsequent to Wagner, this court properly refused to reconsider its
precedent. State v. Moore, 334 Or 328, 337-38, 49 P3d 785 (2002) (this court
will not reconsider a previous ruling under the Oregon Constitution when the
proponent of a different rule does not either present new information as to the
meaning of the constitutional provision at issue or that demonstrate some failure
59
on the part of the court at the time of the earlier decision to follow its usual
paradigm for considering and construing the meaning of the provision in
question).
In Wagner and Terry, this court addressed an issue similar to the one
pressed in this case. Those cases, because they were capital cases, raised a
multitude of other issues, the litigants did not provide this court with the benefit
of full and comprehensive briefing that an issue of state constitutional
magnitude requires, and the issue was wholly unpreserved. And, because this
court had controlling precedent in Wagner, this court did not engage in the
analysis under Priest v. Pearce (much less Stranahan) in Terry or Johnson.
Arguably, given that all three of the decisions do not cite or discuss any state
constitutional provisions in the analysis, Wagner and its progeny do not even
stand as stare decisis on the issue before the court in this case. Because those
decisions do not accord with this courts prior jurisprudence and the historical
circumstances that pertain to Article I, section 11, and Article VII (Amended),
section 5, this court should disavow those portions of the opinions.
One final reason supports this courts decision to disavow Wagner,
engage in a meaningful interpretation of the pertinent statutory provisions, and
hold that the indictment must include a legislatively identified fact about the
commission of the offense that authorizes a trial court to triple the indeterminate
sentence limit. Holding otherwise would result in a grievous wrong and
60
entrench an unjust rule. Farmers Ins. Co. of Oregon v. Mowry, 350 Or 686,
693 n 3, 261 P3d 1 (2011) (quoting Safeway Stores v. State Bd. Agriculture,
198 Or 43, 80, 255 P2d 564 (1953)).
The consequence for defendant and others deprived of the right to grand
jury indictment is obvious. Whether conduct placed anothers life or safety at
risk is a typical fact included in the definition of several crimes. See, e.g., ORS
163.195(1) (A person commits the crime of recklessly endangering another
person if the person recklessly engages in conduct which creates a substantial
risk of serious physical injury to another person.); ORS 162.195(2)(c)
(defining resists for purposes of the crime of resisting arrest to mean the use
or threatened use of violence, physical force or any other means that creates a
substantial risk of physical injury to any person). The grand jury did not return
an indictment alleging that fact there was no allegation that defendants
commission of kidnapping put anothers life or safety in danger. Yet the trial
court relied on that fact to increase the maximum authorized punishment for
defendants commission of a Class B felony from 10 years to 30 years. But
defendant is merely one of the affected parties.
The people of Oregon adopted the 1908 amendment to Article VII,
section 18, to reclaim the peoples proper role in authorizing the nature and
extent of all felony prosecutions. Here, the people authorized the district
attorney to prosecute defendant for allegedly committing an offense subject to
61
maximum sentence of 10 years. Wagner has been held as authorizing the
district attorney to submit an additional fact regarding the commission of that
offense to secure a sentence of 23 years and 4 months. Reinke, 245 Or App at
34; Sanchez, 238 Or App at 265. Allowing imposition of the heightened
punishment to stand in this case divests the people of Oregon the power it
reclaimed in 1908 in this case and in many future cases. Defendant believes
that the analysis set out above should affirmatively persuad[e this court] to
abandon that precedent. Ciancanelli, 339 Or at 290.

V. CONCLUSION
Defendant asks this court to affirm the Court of Appeals in part and
reverse the Court of Appeals in part, reverse the judgment of the trial court, and
remand the case for resentencing.

PETER GARTLAN
CHIEF DEFENDER

ESigned
________________________________


Signed
By Ernest Lannet at 5:31 pm, Mar 01, 2012

EXCERPT OF RECORD INDEX

Indictment ................................................................................................... ER 1-3

Indictment Nbr 22 DA Unit UG GJ Room 728
Iu ) e Circuit Court of the State of
'.
For Multnomah County
Court Nbr 08- 12-35325 DA 2158174-1
09-01-30185 2158174-2
STATE OF OREGON Crime Report GP 08-16529
BALLOT MEASURE 11
ENTERED I

f, REINDICTMENT
1
P intiff,
(...
I Indictment for Violation of
..
v .: I
-n
N
ORS 163,375 (I)
- -J
IN REGISTER BY fN I \
ORS 163.405 (2,3,4,5,6) BYRON O'NEAL WILLENBERG
....... rn
".1
-0
ORS 163.225 (7,8,14,15)
'T
o
i
DOB: 03/30/1973
':J'
ORS 164,225 (9)

;
LEONARD LLOYD REINKE
AND
ORS 162,285 (10,12)
DOB: 10/13/1964 ORS 162,265(11,13) o
o
ORS 163.275 (16)
.\
ORS 166.270 (17)
Defendant(s).
The above-named defendant(s) are accused by the Grand Jury of Multnomah County, State of Oregon, by this indictment of crime(s) of COUNT I
RAPE IN THE FIRST DEGREE, COUNT 2,3,4,5,6 - SODOMY IN THE FIRST DEGREE, COUNT 7 - KIDNAPPING IN THE SECOND
DEGREE, COUNT 8 - KIDNAPPING IN THE SECOND DEGREE, COUNT 9 - BURGLARY IN THE FIRST DEGREE, COUNT 10,12
TAMPERING WITH A WITNESS, COUNT 11,13 - BRJBING A WITNESS, COUNT 14,15 - KIDNAPPING IN THE SECOND DEGREE,
COUNT 16 - COERCION, COUNT 17 - FELON IN POSSESSION OF A FIREARM, committed as follows:
COUNT 1
RAPE IN THE FIRST DEGREE
The said Defendant(s), BYRON O'NEAL WILLENBERG, on or between December 21, 2008 and December 26, 2008, in the County of Multnomah,
State of Oregon, did unlawfully and knowingly, by forcible compulsion, engage in sexual intercourse with JENNIFER TODD, contrary to the statutes in
such cases made and provided and against the peace and dignity of the State of Oregon,
COUNT 2
SODOMY IN THE FIRST DEGREE
State of Oregon, did unlawfully and knowingly, by forcible compulsion, engage in deviate sexual intercourse with JENNIFER TODD by causing the sex
organs of the said defendant to come into contact with the mouth of the said victim, contrary to the statutes in such cases made and provided and against the
peace and dignity of the State of Oregon,
COUNT 3
SODOMY IN THE FIRST DEGREE
The said Defcndant(s), BYRON O'NEAL WILLENBERG, on or between December 21, 2008 and December 26, 2008, in the County of Multnomah,
organs of the said defendant to come into contact with the anus of the said victim, contrary to the statutes in such cases made and provided and against the
COUNT 4
SODOMY IN THE FffiST DEGREE
COUNTS
COUNT 6
,peace and dignity of the State of Oregon,
COUNT 7
INDICTMENT Dist: Original: Court - Copies: Defendant, Def. Attorney, DA, Data Entry
ER-1
Page 2 Defendant: Byr,'l O'Neal Willenberg , Court Nbr 08-12-353f5)
Lt.) ;ARD LLOYD REINKE, Court Nbr 09-01-3_, 5
The said Defendant(s), BYRON O'NEAL WILLENBERG, on or between December 21, 2008 and December 26, 2008, in the County of
Multnomah, State of Oregon, did unlawfully and knowingly, without consent or legal authority, secretly confine JENNIFER TODD in a place
where she was not likely to be found, with the intent to interfere substantially with the said JENNIFER TODD'S personal liberty, contrary to the
statutes in such cases made and provided and against the peace and dignity of the State of Oregon,
COUNT 8
The said Defendant(s), BYRON O'NEAL WILLENBERG, on or between December 21, 2008 and December 26, 2008, in the County of
Multnomah, State of Oregon, did unlawfully and knowingly, without consent or legal authority, take BRYAN SARGENT from one place to another,
with the intent to interfere substantially with the said BRYAN SARGENT'S personal liberty, contrary to the statutes in such cases made and
provided and against the peace and dignity of the State of Oregon,
COUNT 9
BURGLARY IN THE FIRST DEGREE
The said Defendant (s), BYRON O'NEAL WILLENBERG, on or between December 21,2008 and December 26,2008, in the County of Multnomah,
State of Oregon, did unlawfully and knowingly remain in a dwelling located at 496 Southwest 257th Avenue, Apartment 4, Troutdale, Oregon, with the
intent to commit the crime of Sodomy therein, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of
Oregon,
The state further alleges that the above-described offense was committed in an occupied dwelling.
COUNT 10
TAMPERING WITH A WITNESS
The said Defendant(s), LEONARD LLOYD REINKE, on or about January 07, 2009, in the County of Multnomah, State of Oregon, did urilawfully and
knowingly induce and attempt to induce JENNIFER TODD, a witness, to absent herself from an official proceeding to which said witness had been
legally summoned, by threatening her with physical harm, contrary to the statutes in such cases made and provided and against the peace and dignity of the
State of Oregon,
COUNT 11
BRIBING A WITNESS
The said Defendant(s) LEONARD LLOYD REINKE, on or about January 07, 2009, in the County of Multnomah, State of Oregon, did unlawfully
and knowingly offer, confer, and agree to confer a pecuniary benefit to and upon JENNIFER TODD, a witness and a person the said defendant
believed might be called as a witness, in an official proceeding, with the intent to induce JENNIFER TODD to absent herself from an official
proceeding to which JENNIFER TODD had been legally summoned, contrary to the statutes in such cases made and provided and against the peace
and dignity of the State of Oregon,
COUNT 12
TAMPERING WITH A WITNESS
The said Defendant(s), LEONARD LLOYD REINKE, on or about January 08, 2009, in the County of Multnomah, State of Oregon, did unlawfully and
knowingly induce and attempt to induce JENNIFER TODD, a witness, to absent herself from an official proceeding to which said witness had been
legally summoned by threatening her with physical harm, contrary to the statutes in such cases made and provided and against the peace and dignity of the
State of Oregon,
COUNT 13
BRIBING A WITNESS
The said Defendant(s) LEONARD LLOYD REINKE, on or about January 08, 2009, in the County of Multnomah, State of Oregon, did unlawfully
and knowingly offer, confer, and agree to confer a pecuniary benefit to and upon JENNIFER TODD, a witness and a person the said defendant
believed might be called as a witness, in an official proceeding, with the intent to induce JENNIFER TODD to absent herself from an official
proceeding to which JENNIFER TODD had been legally summoned, contrary to the statutes in such cases made and provided and against the peace
and dignity of the State of Oregon,
COUNT 14
The said Defendant(s), LEONARD LLOYD REINKE, on or about January 08, 2009, in the County of Multnomah, State of Oregon, did unlawfully
and knowingly, without consent or legal authority, take JENNIFER TODD from one place to another, with the intent to interfere substantially with
the said JENNIFER TODD'S personal liberty, contrary to the statutes in such cases made and provided and against the peace and dignity of the
State of Oregon,
COUNT 15
The said Defendant(s), LEONARD LLOYD REINKE, on or about January 08, 2009, in the County of Multnomah, State of Oregon, did unlawfully
and knowingly, without consent or legal authority, take JENNIFER TODD from one place to another, with the intent to interfere substantially with
the said JENNIFER TODD'S personal liberty, contrary to the statutes in such cases made and provided and against the peace and dignity of the
State of Oregon,
COUNT 16
COERCION
ER-2
Page 3 Defendant: B
jY
'J",\l1 O'Neal Willenberg , Court Nbr 08-12-3532'5)
Ll ) .ARD LLOYD REINKE, Court Nbr 09-01-3-l .;
The said Defendant(s), LEONARD LLOYD REINKE, on or between December 26,2008 and January 08,2009, in the County of Multnomah, State
of Oregon, did unlawfully and knowingly compel and induce ROBERT ASHTON WILLENBERG to engage in conduct from which ROBERT
ASHTON WILLENBERG had a legal right to abstain, to-wit: tamper with a witness or bribe a witness, by means of instilling in ROBERT
ASHTON WILLENBERG a fear that if ROBERT ASHTON WILLENBERG refrained from the conduct compelled and induced, defendant and
another person would unlawfully cause physical injury to ROBERT ASHTON WILLENBERG, contrary to the statutes in such cases made and
provided and against the peace and dignity of the State of Oregon,
COUNT 17
FELON IN POSSESSION OF A FIREARM
The said Defendant(s), LEONARD LLOYD REINKE, on or about January 08, 2009, in the County of Multnomah, State of Oregon, having
previously been convicted in the Circuit Court of the State of Oregon for the County of Multnomah on September 15, 2007, of the felony of
Unlawful Possession of Methamphetamine did unlawfully and knowingly own, have in said defendant's possession, have under said defendant's
custody and have under said defendant's control a fireanTI, contrary to the statutes in such cases made and provided and against the peace and dignity
of the State of Oregon,
Dated at Portland, Oregon, in the county aforesaid, on JANUARY 27, 2009.
Witnesses _________ A TRUE BILL
Examined Before the Grand Jury
in person (unless noted)
Carey D Kaer
Jennifer Todd Foreperson of the Grand Jury
Bryan Sargent
Carolyn S Fosterman (By Affidavit)
By
Security Amount (Def - WILLENBERG) $250,000 + $250,000 + $250,000 + $2
$250,000 + $50,000
(Def - REINKE) $5,000 + $5,000 + $5,000 + $5,000 t $25 ,00 + $250,000 + $5,000 + $5,000
AFFIRMATIVE DECLA ON
The District Attorney hereby affirmatively declares for the record, as required by ORS 161.566, upon the date scheduled for the first appearance of the defendant, and before the court asks
under ORS 135.020 how the defendant pleads to the charge(s), the State's intention that any misdemeanor charged herein proceed as a misdemeanor. SEAN J. RlDDELL OSB 013943
lid Imlreindictment
Pursuant to 2005 Or Laws ch. 463 sections I to 7, 20(1) and 21 to 23, the State hereby provides written notice of the State's intention to rely at sentencing on
enhancement facts for any statutory ground for the imposition of consecutive sentences codified under ORS 137.123 on these counts or to any other sentence which has
been previously imposed or is simultaneously imposed upon this defendant.
-.
ER-3
APPENDIX INDEX

ORS 161.725 - 161.737 ............................................................................ App 1-4

Official Voters Pamphlet, General Election,
June 1, 1908, 116-117 .................................................................... App 5-6

State v. Waterhouse,
290 Or 424, 429-31, 307 P2d 327 (1957) ...................................... App 7-9

Brief in State v. Wagner,
305 Or 115, 752 P2d 1136 (1988), pages 130-133 .................... App 10-14

ORS 161.725 provides:
(1) Subject to the provisions of ORS 161.737, the maximum
term of an indeterminate sentence of imprisonment for a dangerous
offender is 30 years, if because of the dangerousness of the defendant an
extended period of confined correctional treatment or custody is
required for the protection of the public and one or more of the
following grounds exist:
(a) The defendant is being sentenced for a Class A felony and
the defendant is suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or safety of
another.
(b) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has been
previously convicted of a felony not related to the instant crime as a
single criminal episode and the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that seriously
endanger the life or safety of another.
(c) The defendant is being sentenced for a felony that seriously
endangered the life or safety of another, the defendant has previously
engaged in unlawful conduct not related to the instant crime as a single
criminal episode that seriously endangered the life or safety of another
and the defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the life or
safety of another.
(2) As used in this section, previously convicted of a felony
means:
(a) Previous conviction of a felony in a court of this state;
(b) Previous conviction in a court of the United States, other
than a court-martial, of an offense which at the time of conviction of the
offense was and at the time of conviction of the instant crime is
punishable under the laws of the United States by death or by
imprisonment in a penitentiary, prison or similar institution for a term of
one year or more; or
(c) Previous conviction by a general court-martial of the United
States or in a court of any other state or territory of the United States, or
of the Commonwealth of Puerto Rico, of an offense which at the time of
conviction of the offense was punishable by death or by imprisonment
in a penitentiary, prison or similar institution for a term of one year or
App 1
2
more and which offense also at the time of conviction of the instant
crime would have been a felony if committed in this state.
(3) As used in this section, previous conviction of a felony
does not include:
(a) An offense committed when the defendant was less than 16
years of age;
(b) A conviction rendered after the commission of the instant
crime;
(c) A conviction that is the defendants most recent conviction
described in subsection (2) of this section, and the defendant was finally
and unconditionally discharged from all resulting imprisonment,
probation or parole more than seven years before the commission of the
instant crime; or
(d) A conviction that was by court-martial of an offense
denounced only by military law and triable only by court-martial.
(4) As used in this section, conviction means an adjudication
of guilt upon a plea, verdict or finding in a criminal proceeding in a
court of competent jurisdiction, but does not include an adjudication
which has been expunged by pardon, reversed, set aside or otherwise
rendered nugatory.
(1) Upon motion of the district attorney, and if, in the opinion of
the court, there is reason to believe that the defendant falls within ORS
161.725, the court shall order a presentence investigation and an
examination by a psychiatrist or psychologist. The court may appoint
one or more qualified psychiatrists or psychologists to examine the
defendant in the local correctional facility.
(2) All costs connected with the examination shall be paid by
the state.
(3) The examination performed pursuant to this section shall be
completed within 30 days, subject to additional extensions not
exceeding 30 days on order of the court. Each psychiatrist and
psychologist appointed to examine a defendant under this section shall
file with the court a written report of findings and conclusions,
including an evaluation of whether the defendant is suffering from a
severe personality disorder indicating a propensity toward criminal
App 2
3
activity.
(4) No statement made by a defendant under this section or ORS
137.124 or 423.090 shall be used against the defendant in any civil
proceeding or in any other criminal proceeding.
(5) Upon receipt of the examination and presentence reports the
court shall set a time for a presentence hearing, unless the district
attorney and the defendant waive the hearing. At the presentence
hearing the district attorney and the defendant may question any
psychiatrist or psychologist who examined the defendant pursuant to
this section.
(6) If, after considering the evidence in the case or in the
presentence hearing, the jury or, if the defendant waives the right to a
jury trial, the court finds that the defendant comes within ORS 161.725,
the court may sentence the defendant as a dangerous offender.
(7) In determining whether a defendant has been previously
convicted of a felony for purposes of ORS 161.725, the court shall
consider as prima facie evidence of the previous conviction:
(a) A copy of the judicial record of the conviction which copy is
authenticated under ORS 40.510;
(b) A copy of the fingerprints of the subject of that conviction
which copy is authenticated under ORS 40.510; and
(c) Testimony that the fingerprints of the subject of that
conviction are those of the defendant.
(8) Subsection (7) of this section does not prohibit proof of the
previous conviction by any other procedure.
(9) The facts required to be found to sentence a defendant as a
dangerous offender under this section are enhancement facts, as defined
in ORS 136.760, and ORS 136.765 to 136.785 apply to making
determinations of those facts.
(1) A sentence imposed under ORS 161.725 and 161.735 for
felonies committed on or after November 1, 1989, shall constitute a
departure from the sentencing guidelines created by rules of the Oregon
Criminal Justice Commission. The findings made to classify the
defendant as a dangerous offender under ORS 161.725 and 161.735
App 3
4
shall constitute substantial and compelling reasons to depart from the
presumptive sentence as provided by rules of the Oregon Criminal
Justice Commission.
(2) When the sentence is imposed, the sentencing judge shall
indicate on the record the reasons for the departure and shall impose, in
addition to the indeterminate sentence imposed under ORS 161.725, a
required incarceration term that the offender must serve before release
to post-prison supervision. If the presumptive sentence that would have
been imposed if the court had not imposed the sentence under ORS
161.725 and 161.735 as a departure is a prison sentence, the required
incarceration term shall be no less than the presumptive incarceration
term and no more than twice the maximum presumptive incarceration
term. If the presumptive sentence for the offense is probation, the
required incarceration term shall be no less than the maximum
incarceration term provided by the rule of the Oregon Criminal Justice
Commission that establishes incarceration terms for dispositional
departures and no more than twice that amount. However, the
indeterminate sentence imposed under this section and ORS 161.725 is
not subject to any guideline rule establishing limitations on the duration
of departures.
App 4
116 PAMPHLET CONTAINING MEASURES TO BE
ARGUMENT
(affirmative)
SUBMITTED BY
CHARLES H. CAREY, C. E. S. WOOD, W. S. U'REN, JOHN BAIN,
C. S.JACKSON,L. A. McNARY, JOSEPH N. TEAL, BEN
SELLING, EMANUEL SICHEL, H. J. PARKISON,
in favor of the measure designated on the official ballot as follows:
PROPOSED BY INITIATIVE PETITION
For constitutional amendment providing for the choos-
ing of jurors and grand jurors, and 'that no person
can be charged in the Circuit Courts with the com-
mission of a crime 01' a misdemeanor except upon
indictment found by a grand jury, except when a
court holds an indictment to be defective, the Dis-
trict Attorney may file an amended indictment. Vote YES or NO.
-------------------------- ---------
334. Yes.
335. No.
ARGUMENT IN FAVOR OF ABOVE AMENDMENT.
Under the present law, any district attorney can file an information
against a man for any crime, from murder down. The accused is not
entitled of right to any preliminary hearing and the first he knows of
the matter may be his arrest. He may never be tried at all, the informa-
tion or indictment may be dismissed, and yet his record is blackened. It
may be that it is not intended from the start that he ever should be tried,
but the information is issued to serve some political purpose, private
revenge or the scheme of a ring hostile to the victim. It is un-American.
It is too much like the despotism of Russia and it is too mIlch power to .
be vested in the hands of anyone man. The whole history of Anglo-
Saxon institutions is a battle against this veI'y thing: the power of one
man to brand another with crime and lodge him in prison. It is a return
to the Star Chamber decrees of Charles I and the time was when English-
men and Americans thought no time or money thrown away which pro-
tected every citizen from arbitrary arrest an'd arbitrary arraignment
and trial at the will of a single man. In England the same jealousy
exists today, and no man can be brought to trial save on an indictment
App 5
SUBMITTED TO VOTERS Oll' OREGON JUNE 1,1908 117
- - - - - - - - ~ - - - - - - - - - -
nd jury. The fathers of our country were careful to write that
United States Constitution, but it is not yet an article of the
nstitution. The time has come when it should be there, for the
1 inevitably come when wealth and great interests will seek to
mouth of every man who is against them; and if we may judge
by the past, the powerful interests are apt to control the
offices, inchlding the district attorney.
hly argument urged against this amendment is that the present
eaper. If the citizens of Oregon prefer a few dollars to a great
tal principle of personal liberty, then they certainly do not
eir liberties and they mig'ht as well be left open to the whims,
, mistakes or political intrigues of any diRtrict attorney. The
f this country will malee a great mistake if they let go that
administration of the law which belongs te- them through the
and the petty jury, and we repeat that this present arbitrary
~ e d in one man is un-American and dangerous.
CHAS. H. CAREY,
W. S. U'REN,
C. S. JACKSON,
JOSEPH N. TEAL,
C. E. S. WOOD,
JOHN BAIN,
L. A. McNARY,
BEN SELLING,
EMANUEL SICHEL,
H. J. PARKISON.
ruary 3, 1908.
F. W. BENSON, Secretary of State;
App 6
. \
\
i
Feb. '57'] STATE V. WATERHOUSE
Cite as 209 Or. 424
3. The Newlin decisions accord with the great
weight of authority. In Massey v. United States, 281 F
293, 297 (8th Cir), the court, referring to statutes pro
viding for greater punishment of second or subsequent
offenses by the same person, cited decisions of courts
of Zl jurisdictions, including Oregon, in support of
. the following statement:
" ,., ,., It is the established rule, under such
statutes, unless the statute designates a different
mode of procedure, that, if the prosecutor desires to
invoke the severer punishment provided as to sec
ond or subsequent offenders, the indictment or in
formation must allege the fact of prior conviction,
and the allegation of such conviction must be proved
in the trial to the jury."
The reason for the rule is, as the court there said,
that "The statement of a prior conviction is regarded
as a part of the description and character of the offense
intended to be punished, and as an essential ingredient
of such aggravated offense." See, also, 1 Bishop on
Criminal Law (9th ed) 961 (quoted in State v. Smith,
supra, 128 Or at p 522) ; III Wharton's Criminal Pro
cedure 2309, 1877; 1 Wharton '8 Criminal Evidence
(12th ed) 498, 233 (1955); 42 CJS 1057-1059, Indict
ments and Informations 145; and the following anno
tations: 58 ALR 64; 82 ALR 366; 116 ALR 229; 132
ALR 107; 139 ALR 689.
"I regard it," said Judge Gray in Peoplev. Sickles,
156 NY 541, 547, 51 NE 288, "as a necessary and logical
conclusion, where an increased punishment is pre
scribed by the statute upon conviction for a second
offense, that the prior conviction enters as an in
gredient into the criminality of the prisoner. Not that
the fact of the prior conviction tends, in any wise, to
prove the commission of the second offense; but that
App 7
430 STATE V. WATERHOUSE [209 Or.
it aggravates the guilt of the prisoner and, as a hard
.ened, or unreformed, criminal, subjects him to an in
crease punishment for the repeated crime."
Our statute provides that the indictment shall con
tain "A statement of the acts constituting the offense
in ordinary and concise language, without repetition,
and in such manner as to enable a person of common
understanding to know what is intended." (ORS
132.520 (2)).
4, 5. If the prior offense is an ingredient of the
crime then it must be alleged in the indictment and the
burden is upon the prosecutor to prove it beyond a
reasonable doubt. ORS 136.520.
This was the common-law procedure followed in
England (Rex v. Jones, 6 Car & P 391 [1834]), until
it was changed by acts of Parliament, which provided,
in substance, that so much of the indictment as charg'ed
a prior offense should be withheld from the jury until
after a verdict of guilty had been rendered on the
current charge, whereupon the question of a previous
conviction should be determined by the jury if the
defendant should deny it. 6 and 7 vVm IV, ch 111;
24 and 25 Vict Ch 99, 27. See Graham v. West Vir
ginia, 224 US 616, 6 2 5 ~ 6 2 6 , 56 L ed 917, 32 S Ct 583.
In sustaining the constitutionality of the habitual crim
inallaw of New York, which was subsequently adopted
by the Oregon legislature (State v. Smith, supra; Ma
comber v. State, 181 Or 208, 217, 180 P2d 793), the
court, in People v. Sickles, supra at p 546, said with
reference to the English procedure:
"* '*' "" The very fact, that in England it
was necessary to enact a statute to remedy what
was, probably, deemed a defect in criminal proced
ure at the common law, tends to show that, until
App 8
Feb. '57J STATE V. WATERHOUSE 431
Cite as 209 Or. 424
legislation has changed the rule, it is essential that
the prior conviction be proved by the People as a
part of the case against the prisoner."
See, also, People v. Gowasky, 244 NY 451, 456, 155
NE 737,58 ALR 9.
By court decision a procedure similar to that now
employed in England has been adopted in Connecticut.
State v. Ferrone, 96 Conn 160, 172-176, 113 A 452. But
it should be observed that both in England and Con
necticut prior offenses must be alleged in the indict
ment. It was so expressly held in State v.
110 Conn 298, 147 A 825. It should be remempered
that we are dealing now 'Only with the question whether
the indictment is vulnerable to demurrer.
There is, of course, no common-law procedure as
such in this state. Williams v. Pacific Co., 66
Or 151, 155, 127 P 145, 131 P 1021, 132 P 959, 133 P
1186. When we speak of the common-law procedure
in this opinion we mean the procedure in effect in
England before it was changed by statute and which
remains the same in Oregon by very force of the stat
utes of this state prescribing the contents of an in
dictment and the duty of the stateto prove the material
allegations thereof beyond a reasonable doubt.
6. The contention that the practice of proving a
former conviction on the trial violates the defendant's
constitutional right to procedural due process does not
have the support of any authority that we have seen.
It rests upon the proposition that it deprives the de
fendant of the presumpti'On of innocence and relieves
the prosecution of the burden of proving the defend
ant's guilt. The question was directly presented in
People v. Sickles, supra, and resolved adversely to
App 9
129
special issues. The trial judge has no author
ity to submit any other issues, regardless of the
posture of the mitigating evidence he or she may
have allowed to go before the jury. The jury has
no authority to return any answers or other form
of verdict or sentence recommendation, except the
two, or in some cases, three_special issues, each
one of which must be answered simply 'yes' or 'no'
without further elaboration." Id, at
In Eddings, supra, at 115, n. 10, the Court stated:
"We note that the Oklahoma death penalty statute
permits the defendant to present evidence 'as to
. Lockett re
quires the sentencer to listen."
However, the rule in Lockett and Eddings is meaningless if the
;L
sentencer hears evidence of mitigation, but may not use thdt
because of the way the statutory scheme set up.
Our Oregon statutory scheme violates the rule in Lockett
Eddings because it does not permit any practical use by
jury of mitigating factors if a juror feels that the'
answer to the three questions is "yes", but does not feel
,.that death 1S appropriate in a speci fic case. Furthermore,
:j;the Oregon statutory scheme only permits mitigating
;" to be introduced on the second question in determining
or not the defendant will be dangerous in the
future. For these reasons the Oregon statutory scheme is
unconstitutional under the Oregon and federal constitution<;.
C. Notice Vagueness -- Evidentiary Rules
Burden of Proof -- Written Findings
"
1. Introduction
Defendqnt was charged by indictment with
the offense of Aggravated Murder. Defendant admitted to the
App 10
130
deliberate and unprovoked strangulation of Jeri Koenig.
The prosecution offered into evidence approximately
acts of misconduct to prove there was a "probability"
defendant would commit "criminal acts of violence" in
future.
42
The jury concluded unanimously without written.
findings that defendant posed such a threat and should be
executed. The drafters of the ballot measure inadvertentl
forgot to cover what would happen if someone voted "no".
Oregonls death penalty statute provides
to the accused, is vague on its face and in its applicatio"
provides no evidentiary rules or written
vation or mitigation and contravenes the rule that the
cution must prove its case beyond a reasonable doubt.
2. Notice
A review of Supreme Court decisions on capital
punishment and the death penalty statutes enacted by the
states causes immediate concern for the apathy shown in
failure to require notice to the accused. This void is
parently justified by the fact that the proceedings are
furcated and, traditionally, trial rules are abandoned in
sentencing proceedings.
Certain fundamental concepts inherent in due process
should be considered in analyzing ORS 163.116. Seventeen
ago, in State v. Hodges, 254 Or 21, 437 P2d 491 .(1969),
42. These acts are examined in detail, supra, at p. 178.
App 11
131
Supreme Court struck down a criminal statute (contributing to
the delinquency of a minor, former ORS 167.210) because the
language "any person who does any act which manifestly tends
to cause any child to become a delinquent child
ll
was vague.
)The Oregon Supreme Court stated:
11* * * The authorities do agree, however,
that the terms of a penal statute creating an
offense must be sufficiently explicit to inform
those who are subject to it what conduct on their
part will render them liable to its penalties.
* * *
IIIn addition to its due-process function of
putting persons on nptice of the law's demands,
reasonable certainty serves a second purpose:
adjudication. A law that permits the judge and
jury to punish or withhold punishment in their un
controlled discretion is defective as much for its
uncertainty of adjudication as for its failure to
notify potential defendants of its scope and reach.
"A law that is too vague for reaEionable adju
dication is bad on two grounds. A vague statute
lends itself to an unconstitutional delegation of
legislative power to the judge and jury, and, by
permitting the jury to decide what the law will be,
it offends the principle, if not the rule, against
ex post facto laws. See Oregon Constitution, Art I,
2r:
11* * * * *
11* **. Some degree of ad hoc legislation by
juries in finding defendantS-not guilty may be un
avoidable and socially desirable to ease the edges
of the criminal law, but the free-wheeling power
to legislate so as to find a defendant guilty should
not be institutionalized in a criminal statute.
Such a statute not only creates a serious danger
of inequality in the administration of the criminal
law, but it runs squarely contrary to the purpose
of Oregon Constitution, Art I, 21, which prohibits
the delegation of legislative power.
"The very looseness of the language of ORS
167.210 encourages the prosecution to utilize the
App 12
132
statute selectively to rid the community of individu-:-'
als deemed subjectively less desirable than other
offenders. It is the looseness of the language
which offends due process and makes the catch-all:
clause of the statute an instrument of potential
abuse." 254 Or at 27-28.
Earlier, in State v. Smith, 245 Or 319, 422 P2d 272
the Court construed Article I, 11 of the Oregon
and various pleading statutes. It observed:
"'The objects of an indictment are (1) to
inform the accused of the nature and character of
the criminal offense with which he is charged with
sufficient particularity to enable him to make his
defense, (2) to identify the offense so as to en
able the accused to avail himself of his conviction
or acquittal thereof in the event that he should be
prosecuted further for the same cause, and (3) to
inform the court of the facts charged so that it
may determine whether or not they are sufficient
to support a conviction.'" 245 Or at 319 (1966).
'<':E-
Notice to the accused both of the fact that the
; .
penalty is being sought and also of the particular
of aggravating factors may literally mean the difference
tween life and death. Many decisions of the accused may
hinge upon whether he is informed that he is
. penalty.
The New Jersey Supreme Court in State v. Timmons,
A2d 46, 192 N.J. Super, 141 (1983), discussed several:
43. Article I, section 11 of the Oregon Constitution provides that'
"all criminal prosecutions, the accused shall have the right * * * to
denand the nature and cause of the accusation against him, and to have
a copy thereof * * *."
See also Papachristou v. City of JaCksonville, 405 US 156, 92 S ct
839, 31 L Ed2d 110 (1972), striking dONIl a vagrancy ordinance for va
ness.
App 13
133
"* * * a partial itemization of the trial c o n ~
siderations set into motion by the possibility that
death may be imposed suggests the following: * * *
If the defendant is able to retain counsel, the
choice of counsel, the amount of money he is prepared
to pay * * * If the defendant is represented by the
Public Defender then the designation of the case as
capital or non-capital will determine the attorney
to which it is assigned. * * * The defense will be
handled differently where defendant's life is at
stake. The plainest example is in the filing of
pretrial motions. In a capital case recently tried
in Essex County, defense counsel filed in excess of
fifteen pretrial motions, including motions to exclude
the news media, various discovery motions involving
prior convictions, motions pertaining to the composi
tion of the grand jury and petit jury venires, * * *.
"In order to rebut such claims [at sentencing]
and meet its own burden of going forward with miti
gating evidence, the defense must conduct an exten
sive and unique investigation into defendant's back
ground, psychiatric and psychological make-up, prior
criminal involvement and family history. * * *
"Meaningful pretrial negotiations are precluded
if the State can introduce the possibility of a death
sentence at any time prior to trial. Clearly, the
longer defendant must wait to discover whether his
will be a "death penalty Case," the less time he
will have to make considered judgments and prepara
tions for the conduct of his trial." Id at 145-146.
In New Jersey failure of timely disclosure of aggravation
evidence will be grounds to exclude it.
3. Vagueness -- Predicting Future Dangerousness
a. The Terms of the Statute
What do the terms "probability", "criminal acts
of violence" and "continuing threat to society" mean? The void
App 14

Office of Public Defense Services Appellate Division
1175 Court St. NE Salem, Oregon 97301-4030
Telephone: (503) 378-3349 Fax: (503) 378-2163
CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d)

Brief length
I certify that (1) this brief does not comply with the word-count limitation in
ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP
5.05(2)(a)) is 16,749 words.

Type size
I certify that the size of the type in this brief is not smaller than 14 point for
both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioners Brief on the Merits to be
filed with the Appellate Court Administrator, Appellate Courts Records
Section, 1163 State Street, Salem, Oregon 97301, on March 1, 2012.

I further certify that, upon receipt of the confirmation email stating that
the document has been accepted by the eFiling system, this Petitioners Brief on
the Merits will be eServed pursuant to ORAP 16.45 (regarding electronic
service on registered eFilers) on Anna Joyce, #013112, Solicitor General; and
Inge D. Wells, #881137, Senior Assistant Attorney General; attorneys for
Respondent on Review.


PETER GARTLAN
CHIEF DEFENDER

ESigned
________________________________


Signed
By Ernest Lannet at 5:31 pm, Mar 01, 2012

State V Reinke

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

State V Reinke

Uploaded by

Copyright:

Available Formats

May 3, 2012

You might also like