State v. Dearmitt

ORS 136.765 provides that a sentencing court imposing an upward departure sentence cannot “rely on aggravating facts . . . not included either in the indictment or in written notice to the defendant.” State v. Davilla, 280 Or App 43, 62, 380 P3d 1003 (2016).

Defendant appealed the sentence imposed following a guilty plea to three counts of sexual abuse in the second degree. Defendant assigned error to the upward departure sentence, based on the state and sentencing court's use of aggravating facts not plead in the indictment or provided with written notice. The state properly pled one aggravating fact, however, the sentencing court’s “substantial and compelling reasons” to impose a higher sentence was supported by findings of five aggravating facts. ORS 136.765 provides that a sentencing court imposing an upward departure sentence cannot “rely on aggravating facts . . . not included either in the indictment or in written notice to the defendant.” State v. Davilla, 280 Or App 43, 62, 380 P3d 1003 (2016). This rule seeks to protect the Sixth Amendment’s guarantee that a jury will decide particular facts which increase sentences. State v. Frinell, 290 Or App 296, 300, 414 P3d 430 (2018); ORS 136.760(2). The Court found that the record is unclear as to what capacity the sentencing court used aggravating factors not plead in the indictment or provided in written notice, and if the single, correctly-plead aggravating fact amounts to a “substantial and compelling reason.” See State v. Enemesio, 233 Or App 156, 162, 225 P3d 115, rev den, 348 Or 414 (2010). Remanded for resentencing; otherwise affirmed.