Argued and Submitted December 10, 2013
Marion County Circuit Court 11C44386. Thomas M. Hart, Judge.
Bear Wilner-Nugent argued the cause and filed the brief for appellant.
Michael S. M. Shin, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[263 Or.App. 408] HASELTON, C. J.
Defendant appeals from a judgment of conviction for robbery in the first degree, ORS 164.415, arguing, inter alia, that the trial court erred by imposing a departure sentence because defendant did not execute a written waiver of his right to have the alleged enhancement factors tried to a jury. ORS 136.770; ORS 136.773; Or Const, Art I, § 11. As amplified below, (1) although the trial court's noncompliance with ORS 136.770 and ORS 136.773 constituted " plain error," we decline to exercise our discretion to remedy that statutory error; and (2) the trial court's purported noncompliance with Article I, section 11, of the Oregon Constitution was not plain error in that the applicability of that provision in these circumstances is " reasonably in dispute." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). Accordingly, we affirm.
The material facts are procedural and undisputed. Defendant was charged with robbery in the first degree, ORS 164.415. Defendant subsequently waived counsel and, in the ensuing jury trial, represented himself, with a court-appointed attorney acting as his legal advisor. The state alleged that the following aggravating facts supported a departure sentence: (1) defendant was on supervision at the time of the robbery, (2) prior sanctions had failed to deter defendant from criminal activity, (3) defendant had demonstrated disregard for the laws and rules, and (4) incarceration is necessary for public safety. See OAR 213-008-0002 (providing a " nonexclusive list of mitigating and aggravating factors [that] may be considered in determining whether substantial and compelling reasons for a departure exist" ).
On the first day of trial, defendant addressed the court regarding the enhancement factors as follows: " Your Honor, as far as the Blakely factors, you can find the evidence for that. I don't need the jury to do it."  The trial court [263 Or.App. 409] responded that it would await the jury's verdict before reaching sentencing issues.
After the case was submitted to the jury, and during deliberation, defendant's legal advisor informed the trial court that, " [defendant], if he's found guilty, would waive the jury trying the Blakely factors, and have [the court] reach the decision." The court then asked defendant whether that was, in fact, what he wanted, and defendant responded, " I'm fine with that." The following colloquy ensued:
" THE COURT: Okay. You understand you have a right to have a jury make a determination about--
" [DEFENDANT]: Yeah, I understand my right, and I don't think it's necessary. You can do it.
" THE COURT: You're going to give that up? Okay. I mean, I think all they've alleged is that you were on some form of supervision at the time of the crime, that prior sanctions have failed to deter your criminal activity, [that you have] demonstrated disregard for the laws and rules, and [that] incarceration is necessary for the safety of the public. Those are the only things that I would deal with. And you have a right for a jury to make a determination beyond a reasonable doubt on any one or all of those.
" [DEFENDANT]: I'm okay with you doing it.
" THE COURT: You [are] going to give those up?
" [DEFENDANT]: Yep.
" THE COURT: Okay. Do we feel that has to be executed in writing?
" [PROSECUTOR]: I would--I don't think so. * * *
[263 Or.App. 410] " THE COURT: * * * Okay. And [defendant,] you've talked to [your legal advisor] about this?
" [DEFENDANT]: Yeah.
" THE COURT: I mean, I know we had the prior case that you were on probation for at the time [of the crime], so--
" [DEFENDANT]: I was on parole.
" THE COURT: And on parole, too, I guess. Yeah, I mean, I revoked your probation on the other matter, because he had 60 days using stuff.
" [PROSECUTOR]: I think that was an open case, Your Honor. He was on--the supervision, I believe, was ...