State v. Engerseth

Pursuant to ORS 136.773(1), a trial court's failure to receive a written waiver for a jury trial does not create a prejudicial error if defendant previously stipulated to the sentencing enhancement.

Defendant appealed from an amended judgment entered after his conviction and sentencing for unlawful use of a weapon, tampering with a witness, and menacing. The trial court imposed, among other things, an upward departure sentence of 60 months for Defendant's unlawful use of a weapon, a sentencing enhancement imposed because Defendant had stipulated that he was "on supervision" when the crime occurred. Defendant moved to correct errors in the judgment, one of which, he argued, was the imposition of the upward departure sentence. The trial court entered an amended judgment but did not change the departure sentence. On appeal, Defendant argued that, even though he did object to the enhancement fact during sentencing, his objection is nonetheless preserved because of the amended judgment entered. The Court of Appeals disagreed and held that Defendant's argument was not preserved. The Court chose not to decide whether the trial court plainly erred in failing to receive a written waiver for a jury trial because, since Defendant stipulated to the sentencing enhancement, he was not prejudiced by any error. Affirmed.