State v. Keene

When a defendant is convicted of a lesser-included offense but lacks actual notice that a lesser-included offense is under consideration, her conviction is the product of a due process violation. State v. Barrie, 227 Or App 378, 206 P3d 256 (2009).

Petitioner was acquitted of the offense charged in Count 1 of the indictment, and the trial court found Petitioner guilty of lesser-included offense. Under State v. Barrie, 227 Or App 378, 206 P3d 256 (2009), due process does not allow the trial court to find a defendant guilty of a lesser-included offense without notice to the defendant. Furthermore, in the trial court’s speaking verdict, it “incorrectly identified and applied a culpable mental state that was too low.” Six days later and before judgment was entered, Petitioner filed a document entitled “objection to court verdict,” notifying the court of the Barrie rule and requesting entry of a judgment of not guilty on Count 1. The court entered a guilty judgment nine days later.

On appeal, Petitioner contends that the judgment violates her due process rights and that it was based on a finding of a mental state that was too low. Respondent argued that the Petitioner’s claims were unpreserved, that Barrie was not controlling, and that the court should refrain from exercising plain error review.

Because Petitioner had “no practical ability” to raise the issues at the time of the verdict and no procedure existed to raise it later, the court held that Petitioner was excused from the preservation requirement for both the culpable mental state issue and the Barrie issue. And when a defendant is convicted of a lesser included offense but lacks actual notice that a lesser-included offense is under consideration, her conviction is the product of a due process violation. State v. Barrie, 227 Or App 378, 206 P3d 256 (2009). Accordingly, the court reversed the conviction on Count 1.

Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.