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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. ROYCE FRANCIS SPEEDIS, Petitioner on Review. (CC CF070533; CA A138616; SC S058310) On review from the Court of Appeals.* Argued and submitted November 8, 2010. Meredith Allen, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. 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 Mary H. Williams, Solicitor General. Jesse W. Barton, Salem, filed the brief for amicus curiae Pacific Sentencing Initiative, LLC. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** KISTLER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Umatilla County Circuit Court, Daniel J. Hill, Judge. 233 Or App 297, 225 P3d 152 (2010). **Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case.

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KISTLER, J. Trial courts may impose enhanced sentences in criminal cases when an aggravating factor provides a substantial and compelling reason for doing so. OAR 213008-0001. The sentencing guidelines list some aggravating factors that trial courts may consider. See OAR 213-008-0002(1). Trial courts, however, also may rely on aggravating factors that are not listed (nonenumerated aggravating factors) to impose an enhanced sentence. See id. Defendant has argued throughout this litigation that, to the extent the sentencing guidelines permit the use of nonenumerated aggravating factors, they either violate the separation of powers provision of the Oregon Constitution or are vague in violation of the Oregon and the United States Constitutions. The trial court disagreed and imposed an enhanced sentence based on nonenumerated aggravating factors. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Speedis, 233 Or App 297, 225 P3d 152 (2010). We allowed defendant's petition for review to consider this recurring issue and now affirm the Court of Appeals decision and the trial court's judgment. As a matter of state law, three related sets of statutes govern sentencing. See State v. Dilts, 336 Or 158, 161-63, 82 P3d 593 (2003) (Dilts I) (explaining state sentencing statutes).1 The first statute establishes maximum indeterminate sentences for

In Dilts I, this court explained how Oregon's sentencing statutes work as a matter of state law and concluded that those statutes, as the court had interpreted them, complied with the Sixth and Fourteenth Amendments to the United States Constitution. The defendant in Dilts I petitioned for certiorari. The United States Supreme Court granted his petition, vacated this court's judgment, and remanded the case for further proceedings in light of its decision in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 1

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felonies. See ORS 161.605. That statute provides, for example, that the maximum sentence for a Class B felony is 10 years. Id. Before 1989, if a defendant was convicted of a Class B felony, the trial court was free to set the defendant's sentence anywhere within that 10-year range. The evidence that a trial court could consider in selecting the appropriate sentence within that range was broad, and the trial court had wide latitude to determine the appropriate sentence based on the seriousness of the offense and the character of the offender. See State v. Stewart/Billings, 321 Or 1, 9, 892 P2d 1013 (1995) (describing pre-1989 sentencing); State v. Scott, 237 Or 390, 399-400, 390 P2d 328 (1964) (identifying the seriousness of the offense and the character of the offender as the relevant criteria at sentencing). That latitude sometimes led to disparate sentences for similarly situated defendants, and, in 1985, the Oregon legislature created what is now known as the Oregon Criminal Justice Commission to develop recommendations for providing greater uniformity in sentencing. Dilts I, 336 Or at 161. In 1989, the commission adopted rules (sentencing guidelines) that set presumptive sentences for crimes based on the general seriousness of the offense and the specific offender's criminal history. Id. at 161-62.2 ________________________ 159 L Ed 2d 403 (2004). Dilts v. Oregon, 542 US 934, 124 S Ct 2906, 159 L Ed 2d 809 (2004). Following Blakely, this court held on remand that the Sixth and Fourteenth Amendments gave defendants the right to have a jury find aggravating sentencing factors beyond a reasonable doubt. State v. Dilts, 337 Or 645, 652, 103 P3d 95 (2004) (Dilts II). Even though this court's understanding of federal law in Dilts I is no longer valid in light of Blakely, see Dilts II, 337 Or at 652, this court's explanation in Dilts I of how Oregon's sentencing statutes work as a matter of state law remains good law. Although the commission adopted the sentencing guidelines as rules, the legislature later enacted the sentencing guidelines as statutes. Dilts I, 336 Or at 162. 2
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The presumptive sentence for each crime falls within the range set by the maximum indeterminate sentence for that crime.3 For example, the maximum indeterminate sentence for second-degree assault (one of the crimes for which defendant was convicted) is 10 years. ORS 161.605(2). The sentencing guidelines provide that, for a person with defendant's criminal history, the presumptive sentence for that crime is 37 to 38 months. See OAR 213-004-0001 (App 1). The presumptive sentence sets a target sentence within the range that the indeterminate sentencing statutes permit, and trial courts retain "'discretion to deviate [from the presumptive sentence] for substantial and compelling reasons.'" Dilts I, 336 Or at 172 (emphasis omitted; quoting OAR 213-002-0001(2)). That is, although the guidelines start from the premise that the presumptive sentence ordinarily will be the appropriate sentence, they recognize that the two factors that go into the presumptive sentence -- the general seriousness of the offense and the specific offender's criminal history -- may not always capture either the seriousness of a particular offense or all the relevant aspects of an offender's character. See Oregon Criminal Justice Council, Oregon Sentencing Guidelines Implementation Manual 123-25 (1989) (so stating). Accordingly, the guidelines list nine mitigating and 12 aggravating factors that will justify imposing either a lesser or a greater sentence than the presumptive sentence. OAR 213-008For some crimes, the Oregon statutes also provide mandatory minimum sentences. See, e.g., ORS 137.700 (setting mandatory minimum sentences for certain crimes). When a court imposes a mandatory minimum sentence, that sentence sets the floor below which the presumptive sentence may not go. See State ex rel Huddleston v. Sawyer, 324 Or 597, 603-04, 932 P2d 1145 (1997) (explaining the relationship between mandatory minimum sentences and presumptive sentences). 3
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0002(1). Some of those mitigating and aggravating factors go to the seriousness of the offense. For example, if the harm or loss attributable to a particular offense is either significantly less or significantly greater than is typical, the guidelines permit a court to impose either a downward or an upward departure sentence. See OAR 213-0080002(1)(a)(G) (downward departure); OAR 213-008-0002(1)(b)(J) (upward departure). Other factors go to the character or culpability of the specific offender. For example, if a defendant acted with a diminished mental capacity, a court may impose a lesser sentence. OAR 213-008-0002(1)(a)(C). Conversely, if a defendant has been "[p]ersistent[ly] involv[ed] in similar offenses or repetitive assaults," a court may impose a greater sentence than the presumptive sentence. OAR 213-008-0002(1)(b)(D). The guidelines recognize that, in that case, a more severe sentence may be necessary both to deter the defendant and to protect society. Finally, the guidelines provide that the list of specific mitigating and aggravating factors is "nonexclusive." OAR 213-008-0002(1). That is, the guidelines recognize that case-specific factors may arise in individual cases that bear on either the seriousness of the offense or the character of the offender that the Criminal Justice Commission did not anticipate. The guidelines accordingly permit trial courts to consider whether nonenumerated, case-specific mitigating or aggravating factors exist that provide a substantial and compelling reason for imposing either a downward or an upward departure sentence. See id. In 2005, the legislature enacted a third set of statutes that establish 4

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procedures for determining whether, in a particular case, an aggravating factor exists that will warrant an enhanced sentence. See ORS 136.760 to 136.792. Under that law, the prosecutor must identify any aggravating factor (enumerated or nonenumerated) that provides a basis for seeking an upward departure sentence and give the defendant reasonable written notice of that factor. See ORS 136.765. The defendant may elect to have a jury find whether that factor is present. See ORS 136.770 (governing aggravating factors that "relat[e] to an offense charged in the accusatory instrument"); ORS 136.773 (governing aggravating factors that "relat[e] to the defendant").4 If the trier of fact finds beyond a reasonable doubt that an aggravating factor that the prosecutor has identified exists, then the trial court may enhance a defendant's sentence if it concludes that that aggravating factor provides a substantial and compelling reason for doing so. See State v. Upton, 339 Or 673, 679, 125 P3d 713 (2005). In this case, the jury convicted defendant of three crimes: first-degree burglary, second-degree assault, and third-degree assault. Before the jury returned its verdict, the prosecutor notified defendant that, in the state's view, eight aggravating factors applied in this case. Of those eight aggravating factors, the jury was ultimately asked to determine whether four of them were present: (1) defendant was on supervision when he committed the current crimes; (2) prior criminal justice sanctions had failed to deter defendant from committing crimes; (3) defendant committed this crime while on

Whether an aggravating factor relates to the offense or the offender affects whether the factor may be tried in the guilt phase of the trial or in a separate sentencing phase. ORS 136.770(1); ORS 136.773(1). 5

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release status with other criminal charges pending; and (4) defendant had demonstrated a disregard for laws and rules, making successful probation unlikely. Each of those factors is a nonenumerated aggravating factor. After considering additional evidence at a separate sentencing hearing, the jury found that the state had proved beyond a reasonable doubt each of those four aggravating factors. The trial court then determined that each aggravating factor, standing alone, provided a substantial and compelling reason for imposing enhanced sentences on defendant's convictions for first-degree burglary and second-degree assault. The trial court sentenced defendant to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the second-degree assault conviction. It also sentenced him to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the first-degree burglary conviction and ordered that those sentences would run concurrently.5 The court did not impose a sentence on defendant's conviction for thirddegree assault but ruled that defendant's sentence for that offense merged into his sentence for second-degree assault.6 Throughout this litigation, defendant has argued that a trial court may not

Because second-degree assault is a Measure 11 crime, the court imposed a 70-month mandatory minimum sentence on that conviction. See ORS 137.700(2)(a)(G). Because of that mandatory minimum sentence and the trial court's decision that the sentences on the burglary and second-degree assault convictions would run concurrently, the net effect of imposing upward departure sentences in this case is that defendant's sentence is two months longer than it otherwise would have been. Defendant does not argue that merging the sentences, as opposed to merging the convictions for second- and third-degree assault, is inconsistent with State v. White, 341 Or 624, 147 P3d 313 (2006), and we do not address that issue. 6
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rely on nonenumerated aggravating factors to impose an enhanced sentence. Doing so, he reasons, violates the separation of powers provision of the Oregon Constitution. See Or Const Art III,

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