Argued and submitted on May 3, 2012, at Portland Community College, Portland, Oregon. Resubmitted January 7, 2013.
On review from the Court of Appeals CC 090130185, CA A144138 [*]
Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Peter Gartlan, Chief Defender.
Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, and Landau, Justices. [**]
Ordinarily, a trial court may impose up to a 10-year prison sentence on persons convicted of second-degree kidnapping. See ORS 161.605(2). However, if the court or a jury makes certain factual findings, the court may sentence a person convicted of second-degree kidnapping as a dangerous offender and impose a 30-year prison sentence. See ORS 161.725(1)(b) (authorizing the imposition of that sentence). The question in this case is whether the Oregon Constitution requires that the facts necessary to impose a dangerous offender sentence be found by the grand jury and pleaded in the indictment. Following this court's decisions, the trial court held that it does not, and the Court of Appeals affirmed in a per curiam opinion. See State v. Reinke, 245 Or.App. 33, 260 P.3d 820 (2011). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment.
The details of the crime that gave rise to this case are not material to the issues that defendant raises on review. Suffice it to say that defendant kidnapped the victim as part of an effort to persuade her not to testify against one of his friends. The friend had terrorized, raped, and sodomized the victim, and the victim feared that defendant would use a gun to harm her during the kidnapping. As a result of defendant's acts, the grand jury indicted him for, among other things, second-degree kidnapping. Before trial, the state notified defendant that it would ask the court to sentence him as a dangerous offender if he was convicted of second-degree kidnapping. At trial, defendant waived his right to a jury, and the trial court convicted him of that crime in addition to other crimes.
At the sentencing hearing, defendant did not dispute that the trial court could sentence him to up to 10 years' imprisonment for the crime of second-degree kidnapping. He argued, however, that the state could not seek a 30-year dangerous offender sentence because the grand jury had not found the facts necessary to impose that sentence. In defendant's view, under the state constitution, those sentencing facts were "elements" of the offense that had to be found by the grand jury and pleaded in the indictment. Relying on this court's cases, the trial court disagreed. The court ruled that the state constitution only required the grand jury to find and plead the elements of second-degree kidnapping. The trial court proceeded to find the factual prerequisites for imposing a dangerous offender sentence and sentenced defendant to slightly more than 23 years in prison. The Court of Appeals affirmed the trial court's judgment. We allowed defendant's petition for review to consider whether sentence enhancement facts are elements of an offense that, as a matter of state constitutional law, the grand jury must find and the indictment must allege.
Before considering that issue, we first set out the statutes that underlie defendant's constitutional challenge. ORS 163.225 defines the crime of second-degree kidnapping. A person commits that crime if, "with intent to interfere substanially with another person's liberty, and without consent or legal authority, " the person "[t]akes [the other] person from one place to another" or "[s]ecretly confines the person in a place where the person is not likely to be found." ORS 163.225. Second-degree kidnapping is a Class B felony, which carries with it a 10-year maximum sentence. See ORS 163.225(3) (classifying second-degree kidnapping as a Class B felony); ORS 161.605(2) (authorizing 10-year maximum sentences for Class B felonies).
A separate statute authorizes trial courts to impose dangerous offender sentences if a defendant is convicted of a felony and certain criteria are met. ORS 161.725(1). As applied here, that statute permitted the trial court to sentence defendant as a dangerous offender and impose up to a 30-year sentence if it found that (1) "defendant [w]as being sentenced for a felony that seriously endangered the life or safety of another"; (2) defendant previously had been convicted of a separate felony; and (3) "defendant [w]as suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another." ORS 161.725(1)(b).
We refer to facts that authorize the imposition of a greater sentence than that authorized by the underlying offense (in this case, the three facts necessary to impose a dangerous offender sentence) as "sentence enhancement facts." State statutes require that prosecutors give defendants timely written notice of sentence enhancement facts. ORS 136.765. They permit but do not require those facts to be found by the grand jury and pleaded in the indictment. Id. In this case, the grand jury did not find any sentence enhancement facts. Rather, as noted above, the state gave defendant separate written notice before trial that it intended to ask the court to impose a dangerous offender sentence and that it would seek to prove the applicable sentence enhancement facts at a separate sentencing hearing if the jury found defendant guilty of second-degree kidnapping.
On review, defendant does not dispute that the state gave him timely written notice that it intended to seek a dangerous offender sentence, as ORS 136.765 requires. Defendant also does not dispute that he knowingly waived his right to have a jury decide the facts necessary to impose that sentence. Finally, he does not dispute that the record permitted the trial court to find beyond a reasonable doubt each of the facts necessary to impose a dangerous offender sentence. Defendant's dispute centers on a narrower issue. He argues that, under the Oregon Constitution, the trial court could not consider whether to impose a dangerous offender sentence unless the grand jury first found probable cause to believe that the factual prerequisites for imposing that sentence existed and alleged those facts in the indictment.
This is not the first time that we have considered this issue. In 1988, the court rejected the defendant's argument that, because Article I, section 11, of the Oregon Constitution requires that some facts related to a defendant's sentence be found by the jury, the state constitution also requires that those facts be found by the grand jury and pleaded in the indictment. State v. Wagner, 305 Or 115, 171-72, 752 P.2d 1136 (1988), vac'd and rem'd on other grounds, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989). Wagner held that, under state law, an indictment must give a defendant notice of the elements of the crime he or she is charged with committing. Id. The indictment need not, however, give a defendant notice of any sentence enhancement facts that may increase the punishment for committing that crime. Id.
For some time, that state constitutional decision went unquestioned. However, in the mid-1990s, federal challenges to the pleading and proof of sentence enhancement facts began to be made. In Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the United States Supreme Court reiterated that, as a matter of federal constitutional law, an indictment in federal court "must set forth each element of the crime that it charges." The Court explained, however, that an indictment "need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime." Id. In Almandarez-Torres, the Court applied a five-factor test to determine whether a fact that enhanced a defendant's sentence was an element of the offense or a sentencing factor. Id. at 242-43. Two years later, the Court stated a different test to distinguish elements from sentencing factors for the purposes of the federal constitution. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court held in Apprendi that, under the Sixth and Fourteenth Amendments, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id.
The decision in Apprendi arose out of a state criminal prosecution, and the Court was careful to note in Apprendi that the Fourteenth Amendment had "not been construed to include the Fifth Amendment right to 'presentment or indictment of a Grand Jury' that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998)." 530 U.S. at 477 n 3. The Court accordingly did not hold in Apprendi that the Fifth Amendment requires states to include sentence enhancement facts in the indictment. Accord Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
After Apprendi, some defendants argued in this court that we should hold that the federal constitution requires states to include sentence enhancement facts in indictments. Given Apprendi's reasoning, we explained in State v. Cox, 337 Or 477, 498-500, 98 P.3d 1103 (2004), that the defendant's unpreserved federal constitutional claim raising that issue did not constitute plain error and did not reach it. Shortly after this court decided Cox, another case squarely presented the issue, and we explained that, "[a]lthough Apprendi requires that the jury find the facts that would support an enhanced sentence, we do not agree that Apprendi requires, as a matter of state criminal procedure, that enhancement factors be set out in the indictment." State v. Sawatzky, 339 Or 689, 698, 125 P.3d 722 (2005). The court explained that neither Apprendi nor Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), had held that the Grand Jury Clause of the Fifth Amendment applies to the states and that the relevant question under state law is whether the indictment sets out the elements of the offense, as defined by the state legislature. Id.; cf. Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (holding that due process does not require states to proceed by indictment in felony cases).
After Sawatzky, some defendants returned to the argument that this court had considered and rejected in Wagner. They argued that, even if the federal constitution does not require that state indictments include sentence enhancement facts, the state constitution imposes that requirement. Those defendants argued, in effect, that we should interpret the state constitution the same way that the federal courts had interpreted the Grand Jury Clause of the Fifth Amendment; that is, we should hold that, as a matter of state constitutional law, sentence enhancement facts are elements of the offense that must be pleaded in the indictment. This court has consistently rejected those arguments and has adhered to its holding in Wagner that, as a matter of state constitutional law, the legislature defines the elements of the offense that must be pleaded in an indictment and that, as a matter of legislative intent, a crime does not include sentence enhancement facts. See, e.g., State v. Johnson, 340 Or 319, 352, 131 P.3d 173 (2006) (rejecting the argument that, because the state and federal constitutions require the jury to find certain sentencing factors, the grand jury must do so); State v. Oatney, 335 Or 276, 292-97, 66 P.3d 475 (2003) (same), cert den, 540 U.S. 1151 (2004); State v. Compton, 333 Or 274, 295-96, 39 P.3d 833 (same), cert den, 537 U.S. 841 (2002).
Defendant asks us to revisit those state constitutional holdings. He contends that Article VII (Amended), section 5, and Article I, section 11, of the Oregon Constitution require that sentence enhancement facts be found by the grand jury and pleaded in the indictment. He acknowledges that, for us to agree with him, we would have to overrule our decision in Wagner and all our cases that have followed it. He argues, however, that the parties in those cases did not brief the state constitutional issues fully, nor did this court undertake the thorough textual and historical analysis of those constitutional provisions that we have undertaken in other cases. See Priest v. Pearce, 314 Or 411, 415-16, 840 P.2d 65 (1992) (explaining the methodology for interpreting original constitutional provisions). In this case, defendant and the state have engaged in an extensive analysis of those provisions, and we turn to the question whether, in light of the text of Article VII (Amended), section 5, and Article I, section 11, the history of those provisions, and our cases interpreting them, Wagner erred in holding that, under the Oregon Constitution, the grand jury need not find sentence enhancement facts or plead them in the indictment.
I. ARTICLE VII (AMENDED), SECTION 5
The current version of Article VII (Amended), section 5, consists of seven subsections that, among other things, authorize the legislature to provide for the selection of jurors and grand jurors, specify the number of grand jurors who comprise the grand jury, and determine the number of jurors necessary to render a verdict in civil cases. See, e.g., Or Const, Art VII (Amended), § 5(1), (2), and (7). Three subsections bear on the issue that defendant raises in this case. Subsection 3 is the state analogue of the Grand Jury Clause of the Fifth Amendment. It provides that "a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury." Id. § 5(3). Subsections 4 and 5 state exceptions to that rule. Subsection 4 provides that the district attorney may charge a person with "a crime punishable as a felony" by information if the person appears in circuit court and waives indictment. Id. § 5(4). Subsection 5 provides that the district attorney may charge a person by information if, after a preliminary hearing before a magistrate, "the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it." Id. § 5(5).
Article VII (Amended), section 5, requires the state to proceed by an indictment or an information if it wishes to charge a "crime punishable as a felony." As we understand it, defendant's argument under that section turns on the proposition that the constitutional phrase "a crime punishable as a felony" refers not only to the elements of the underlying crime but also to any fact that authorizes an enhanced sentence for that crime; that is, he views the word "crime" as referring to both the elements of the offense ...