Oregon Supreme Court approves unlisted sentencing enhancements

In a decision impacting many felony criminal cases in Oregon, the Oregon Supreme Court yesterday turned back a defense challenge to the practice of allowing Judges to impose enhanced sentences based on facts that are not specifically listed in the Oregon Sentencing Guidelines.

Under Oregon's Sentencing Guidelines, a person convicted of a felony charge will normally face a "presumptive sentence" authorized by those Guidelines. In cases where the prosecution is seeking an enhanced sentence, referred to as an "upward departure," the prosecution must provide notice of its intent to seek such a sentence and the factor(s) upon which it seeks to enhance the presumptive sentence.

The Sentencing Guidelines themselves specifically list 12 "aggravating factors" that will justify an enhanced sentence. However, the guidelines also provide that this list is not exclusive and that case-specific or defendant-specific factors may arise in individual cases that justify an enhanced sentence.

For a number of years, criminal defense attorneys in Oregon have challenged the use of these unlisted and case-specific factors, primarily arguing that the use of such unlisted factors violated the separation of powers doctrines and, that being undefined by statute or rule were unconstitutionally vague in their application.

In State of Oregon v. Speedis, the Oregon Supreme Court rejected these arguments and allowed an enhanced sentence based on them to stand.

While certainly a defeat for the criminal defense bar, the decision in Speedis does not foreclose all arguments against the application of such sentencing enhancements. For example in holding that the factors used to increase Speedis' sentence were not unconstitutionally vague, the court remarked that this ruling was limited only to offender-specific factors: "We have no occasion to consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender." Speedis, 350 Or., at n. 14.

Additionally, the aggravating factors at issue in Speedis had all been earlier approved by Oregon appellate case law. Such prior approval gave Speedis and his lawyers notice enough of those factors and hence complied with Speedis' rights to Due Process. Thus, it would appear that notice and due process challenges to specific aggravating factors that have not been already approved by the courts are still subject to challenge.

If you or a loved one are facing felony criminal charges in Oregon, you need an experienced Oregon criminal defense attorney well versed in Oregon's constantly changing laws and rules regarding felony sentencing.


Accused of a Crime? Let Us Help.

    • Please enter your name.
    • This isn't a valid phone number.
      Please enter your phone number.
    • This isn't a valid email address.
      Please enter your email address.
    • Please make a selection.
    • Please enter a message.
Turn to Our Firm