State v. Fernaays

Where remand of a sentencing hearing would not materially promote the “ends of justice” the Court of Appeals has the ability to decline to exercise its discretion to remedy the statutory error.

Defendant appealed from a judgement of a conviction of first degree robbery asserting that the trial court erred in giving a departure sentence from the bench when the Defendant did not, in writing, waive his right to a jury hearing the alleged enhancement factors. Defendant, in fact, orally affirmed multiple times that he would prefer the judge to decide the sentence over the jury. The Court acknowledges that there was a plain error regarding the trial court's noncompliance with ORS 136.770 and ORS 136.773 but has declined to exercise its discretion to remedy the error. The Court concludes that on remand, a new sentencing trial would most likely lead to the Defendant receiving the same sentence and therefore remand would not materially promote the “ends of justice.” The Court finds no obvious constitutional error regarding Defendant's second assertion that the Sixth Amendment of the United States Constitution is concurrent with Article 1, Section 11 of the Oregon State Constitution and that Defendant's right to a jury trial coincides with the requirement of a written waiver for enhancement factors of a sentencing trial. Affirmed.