State v. Morris

A court’s failure to comply with sentencing procedures “does not require reversal and remand for resentencing unless the error ‘prejudiced the defendant in request to a substantial right.’” State v. Dawson, 252 Or App 85, 90 (2012) (quoting ORS 131.035).

Defendant appealed a judgement of conviction for delivery of cocaine “for consideration.” Defendant assigned error to the trial court’s submission of the “for consideration” subcategory fact to the jury at the sentencing phase of the proceedings. On appeal, Defendant argued that, because he did not defer or waive a jury finding on the “for consideration” subcategory fact,  the trial court violated ORS 136.770 by submitting the “enhancement fact” to the jury during the sentencing phase. Under ORS 131.035, a court’s failure to comply with sentencing procedures “does not require reversal and remand for resentencing unless the error ‘prejudiced the defendant in request to a substantial right.’” State v. Dawson, 252 Or App 85, 90 (2012) (quoting ORS 131.035). The Court of Appeals held that after it examined the record in light of the purposes of ORS 136.770,  any error in the submission of the “for consideration” subcategory fact to the jury during the sentencing phase at trial was harmless. Affirmed.