State v. Reinke , 354 Or. 98 ( 2013 )

98 September 12, 2013 No. 38
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
LEONARD LLOYD REINKE,
Petitioner on Review.
(CC 090130185; CA A144138; SC S059760)
On review from the Court of Appeals.*
Argued and submitted on May 3, 2012, at Portland Com-
munity College, Portland, Oregon. Resubmitted January 7,
2013.
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.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
**  Appeal from Multnomah County Circuit Court, Richard C. Baldwin,
Judge. 245 Or App 33, 260 P3d 820 (2011).
**  Brewer and Baldwin, JJ., did not participate in the consideration or deci-
sion of this case.
Cite as 354 Or 98 (2013) 99
Defendant appealed a judgment sentencing him as a dangerous offender
to 280 months of incarceration based on his conviction for second-degree
kidnapping. The trial court found that defendant qualified for a longer sentence
than that provided by the kidnapping statute, because the state had proved
beyond a reasonable doubt the necessary sentence enhancement facts. Defendant
argued that, under Article VII (Amended), section 5, and Article I, section 11, of
the Oregon Constitution, the trial court could not impose a longer sentence on
him unless a grand jury first found and pleaded the facts necessary to impose the
longer sentence. The trial court rejected that argument, and the Court of Appeals
affirmed. Held: Article VII (Amended), section 5, and Article I, section 11, of the
Oregon Constitution do not require the grand jury to find and plead sentence
enhancement facts.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
100 State v. Reinke
KISTLER, J.
Ordinarily, a trial court may impose up to a 10-year
prison sentence on persons convicted of second-degree kid-
napping. 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 danger-
ous 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 offen-
der 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
P3d 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 defen-
dant’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
Cite as 354 Or 98 (2013) 101
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 defen-
dant 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 mat-
ter of state constitutional law, the grand jury must find and
the indictment must allege.1
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 sub-
stanially 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 sen-
tence 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 con-
victed 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).2
1
In Oregon, the state may charge a defendant with a felony by an indictment
issued by the grand jury, by a prosecutor’s information if the defendant waives
indictment, or by a prosecutor’s information followed by a preliminary hearing.
See Or Const, Art VII (Amended), § 5. Because the state charged defendant by
indictment, we refer only to that charging instrument.
2
The criteria for sentencing a defendant as a dangerous offender differ
based on the type of felony for which the defendant has been convicted. Because
102 State v. Reinke
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 sep-
arate 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 defen-
dant 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
P2d 1136 (1988), vac’d and rem’d on other grounds, 492 US
defendant was convicted of a Class B felony, the criteria set out in ORS 167.725(1)(b)
apply.
Cite as 354 Or 98 (2013) 103
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 ele-
ments 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 maxi-
mum must be submitted to a jury, and proved beyond a rea-
sonable 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).
104 State v. Reinke
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 P3d 1103 (2004), that the defen-
dant’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 sup-
port 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 P3d 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 indict-
ment 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 P3d 173 (2006) (rejecting the
Cite as 354 Or 98 (2013) 105
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 P3d
475 (2003) (same), cert den, 540 U.S. 1151 (2004); State v.
Compton, 333 Or 274, 295-96, 39 P3d 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 P2d
65 (1992) (explaining the methodology for interpreting orig-
inal constitutional provisions). In this case, defendant and
the state have engaged in an extensive analysis of those pro-
visions, 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), sec-
tion 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
106 State v. Reinke
grand jury.” Id. § 5(3).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 propo-
sition 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 sen-
tence for that crime; that is, he views the word “crime” as
referring to both the elements of the offense and any sentence
enhancement fact that the prosecutor invokes as a basis for
seeking a greater sentence.
The people enacted the current version of Article VII
(Amended), section 5, in 1974 after the legislature referred an
amendment to that section to the voters. See Or Laws 1973,
SJR 1 (referring the measure).4 We interpret an initiated or
referred constitutional amendment the same way that we
interpret a statute; that is, we look to the text, context, and
legislative history of the amendment to determine the intent
of the voters in providing that “a person shall be charged
* * * with a crime punishable as a felony only on indictment
by a grand jury.” See State v. Harrell, 353 Or 247, 254-55,
297 P3d 461 (2013) (referred constitutional amendments);
Ecumenical Ministries v. Oregon State Lottery Comm., 318
Or 551, 559-60, 871 P2d 106 (1994) (initiated constitutional
amendments).
3
The Grand Jury Clause of the Fifth Amendment similarly provides: “No
person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury[.]” US Const, Amend V.
4
The legislatively referred measure repealed the existing text of section 5 and
replaced it with the current text of that section. See Or Laws 1973, SJR 1 (referring
the measure).
Cite as 354 Or 98 (2013) 107
The text of subsection 5(3) is difficult to square with
defendant’s argument. Ordinarily, the word “crime” means:
“an act or the commission of an act that is forbidden or the
omission of a duty that is commanded by a public law of a
sovereign state to the injury of the public welfare and that
makes the offender liable to punishment by that law in a
proceeding brought against him by the state by indictment,
information, complaint, or similar criminal procedure.”
Webster’s Third New Int’l Dictionary 536 (unabridged ed 1971);
see Dept. of Rev. v. Faris, 345 Or 97, 101, 190 P3d 364 (2008)
(looking to the dictionary definition for the ordinary mean-
ing of a word). The acts that the criminal code forbids are
the elements of second-degree kidnapping, as set out in ORS
163.225. To paraphrase the court’s reasoning in Wagner, a
defendant commits the “crime” of second-degree kidnapping
without regard to whether he or she is sentenced as a dan-
gerous offender or not. It follows that the elements of the
crime of kidnapping are all that the text of Article VII
(Amended), section 5(3), requires the grand jury to find.5
The context leads to the same conclusion. Context
includes “the preexisting common law and the statutory
framework within which the law was enacted.” Klamath
Irrigation District v. United States, 348 Or 15, 23, 227 P3d
1145 (2010). Article VII (Amended), section 5, has a lengthy
history. When the people first adopted the Oregon Constitu-
tion, they provided that,
“The Legislative Assembly shall so provide that the most
competent of the permanent citizens of the county shall be
chosen for jurors; and out of the whole number in attendance
at the Court, seven shall be chosen by lot as grand Jurors,
Five of whom must concur to find an indictment: But the
Legislative Assembly may modify or abolish grand Juries.”
Or Const, Art VII (Original), § 18 (1857). As originally enacted,
the grand jury provision did not specify what the grand jury
had to find to indict a defendant. The original provision,
however, authorized the legislature to modify or abolish
grand juries. To the extent that the original provision sheds
5
The phrase that modifies the noun “crime”—“punishable as a felony”—adds
nothing to defendant’s argument. It simply makes clear that, as used in Article VII
(Amended), section 5(3), the term “crime” refers only to felonies.
108 State v. Reinke
any light on the issue that defendant raises, it suggests that
the legislature’s power to abolish the grand jury included the
lesser power to define both how the grand jury functioned
and what it needed to find to issue an indictment.
In 1899, the legislature authorized district attorneys
to file a prosecutor’s information rather than an indictment
“charging any person or persons with the commission of
any crime defined and made punishable by any of the laws
of this state.” Or Laws 1899, § 1, p 99. The legislative amend-
ment departed from the common law in that it permitted the
use of an information, without more, to charge a felony. See
Hurtado, 110 U.S. at 534-35 (holding that the federal constitu-
tion permitted states to use a prosecutor’s information to
charge felonies in derogation of the common law).6
In 1908, the people voted to amend Article VII
(Original), section 18, and made a grand jury indictment
mandatory for both crimes and misdemeanors. See Or Laws
1909, p 12. As amended, Article VII (Original), section 18
(1909), provided:
“No person shall be charged in any Circuit Court with the
commission of any crime or misdemeanor defined or made
punishable by any of the laws of this State, except upon
indictment found by a grand jury. Provided, however, that
any District Attorney may file an amended indictment
whenever an indictment has, by a ruling of the court, been
held to be defective in form.”
Between 1908 and 1973, the people amended Article VII
three more times.7 The phrase relevant to this case “crime
6
A prosecutor’s information was a statement, usually sworn, that had not
been tested either by the grand jury or the court and was not sufficient at common
law to charge a felony. See Joel Prentiss Bishop, 1 Commentaries on the Law of
Criminal Procedure §§ 141-44 (1872). Under the current version of Article VII
(Amended), section 5, a district attorney can charge a felony by information only
if the defendant either waives indictment or the information is followed by a
preliminary hearing at which a magistrate determines that probable cause exists
to believe that the defendant committed the charged crime.
7
In 1910, the people adopted Article VII (Amended). See Or Laws 1911, p 8.
Article VII (Amended), section 5(5) (1911), incorporated the wording of Article
VII (Original), section 18 (1909). See id. In 1927, the people amended Article VII
(Amended), section 5(5), by adding a second proviso that authorized a defendant
to waive indictment and proceed by information. Or Laws 1929, pp 5-6. Finally,
in 1958, the people repealed Article VII (Original), section 18, and made minor
grammatical changes to Article VII (Amended), section 5(5). Or Laws 1959, p 6.
Cite as 354 Or 98 (2013) 109
or misdemeanor” appeared in the 1908 amendment and
remained unchanged during that period. In 1908, the phrase
“crime or misdemeanor” referred to the prohibited acts that
constitute those offenses. See Webster’s Int’l Dictionary 344
(unabridged ed 1900) (defining “crime” as “[a]ny violation of
law”); id. at 929 (defining “misdemeanor” as “[a] crime less
than a felony”). Nothing in the contemporaneous definitions
of those terms suggests that the grand jury had to find any
sentence enhancement facts.
The same conclusion follows from the participial
phrase “defined or made punishable by the laws of this state”
that modifies “crime or misdemeanor.” The “laws of this state”
that define or make punishable crimes or misdemeanors
are the criminal laws that define the prohibited acts. At
least, that is the ordinary reading of the text of the 1908
amendment, which serves as context for the 1974 amendment
to Article VII (Amended), section 5.
This court’s cases have confirmed that ordinary read-
ing of Article VII (Amended), section 5. See State v. Hicks,
213 Or 619, 641, 325 P2d 794 (1958). In Hicks, the defendant
argued that Article VII (Amended), section 5 (1929), required
that sentence enhancement facts be pleaded in the indictment.
Id. at 640-41. This court rejected that argument, reasoning:
“The words ‘charged * * * with the commission of any crime
* * *’ refer to the conventional charge accusing a defendant
of criminal acts for the commission of which the state seeks
to impose punishment. This court has uniformly construed
that provision as being inapplicable to an information under
the Habitual Criminal Act [which provides for enhanced sen-
tences for defendants with prior convictions]. If such had
not been the construction [of Article VII (Amended), section
5], the [habitual criminal] act could never have been applied
in this or in many other states.”
Id. at 641 (ellipses in original). This court squarely held in
Hicks that Article VII (Amended), section 5 (1929), required
only that the grand jury determine that there is probable
cause to find the elements of the “conventional charge.”
According to Hicks, that section did not also require the
grand jury to find sentence enhancement facts. Hicks’s
interpretation of the word “crime” in Article VII (Amended),
110 State v. Reinke
section 5 (1929), forms the backdrop against which the 1974
amendment to that article was adopted and informs the
meaning of the word “crime” in the 1974 amendment. See
Mastriano v. Board of Parole, 342 Or 684, 693, 159 P3d 1151
(2007).
A different strand of case law also informs the under-
standing of the grand jury provision that the voters adopted
in 1974. That case law addresses the relationship among
the common law, the legislature’s authority to provide what
an indictment must contain, and Article VII (Amended),
section 5. At common law, if the punishment for a crime was
enhanced, then the grand jury had to find both the elements
of the crime and the sentence enhancement facts. See State v.
Waterhouse, 209 Or 424, 429-31, 307 P2d 327 (1957) (describ-
ing the common-law practice). As early as 1824, however,
the Massachusetts Supreme Judicial Court held that the
legislature could vary the common law and provide that
sentence enhancement facts need not be found by the grand
jury and included in the indictment. See Ross’s Case, 19
Mass 165, 171 (1824). It was sufficient, the Massachusetts
court held, to give the defendant notice of those sentencing
facts by a different means and prove them at a separate
sentencing hearing. Id. More specifically, the court rejected
the defendant’s argument that sentence enhancement facts
(in that case, a prior conviction) had to be included in the
indictment. See id. and n 2.
Consistently with Ross’s Case, this court and other
courts held before 1974 that state legislatures retain the
power to vary the common law and provide for notice of
sentence enhancement facts separately from the indictment.
See, e.g., State v. Smith, 128 Or 515, 522-23, 273 P. 323
(1929); People v. Gowasky, 244 NY 451, 155 N.E. 737 (1929);
cf. Graham v. West Virginia, 224 U.S. 616, 625-29, 32 S. Ct. 583,
56 L. Ed. 917 (1912) (following the reasoning in Ross’s Case
and holding that a state statute similar to the one in Ross’s
Case did not violate the Due Process Clause). However, if
the legislature failed to specify that sentence enhancement
facts need not be pleaded in the indictment, then this court
inferred that the legislature “intended that the common-law
procedure should govern.” Waterhouse, 209 Or at 434; cf.
Cite as 354 Or 98 (2013) 111
State v. Newlin, 92 Or 589, 182 P. 133 (1919); State v. Newlin,
92 Or 597, 182 P. 135 (1919).8 Specifically, the court concluded
that, if the legislature did not provide for notice of sentence
enhancement facts by some means other than by indictment,
then the sentence enhancement fact had to be pleaded in the
indictment. That was so whether the sentence enhancement
fact was offense or offender specific. See State v. Blacker, 234
Or 131, 135-36, 380 P2d 789 (1963) (applying the same rule to
offense-specific sentence enhancement facts).
There is a suggestion in defendant’s brief that, when
the people adopted Article VII (Amended), section 5, in 1974,
they would have understood that sentence enhancement facts
that went to the offender’s character need not be pleaded in
the indictment, but that sentence enhancement factors that
went to the nature of the offense must be pleaded in the
indictment. None of the cases decided before 1974 drew that
distinction, however. And, as noted, this court applied the
same legislative presumption in Blacker to offense-specific
enhancement facts that it applied to offender-specific
enhancement facts; that is, it held that an offense-specific
enhancement fact had to be pleaded in the indictment unless
the legislature had provided otherwise. 234 Or at 135-36.9
When the people adopted the current version of
Article VII (Amended), section 5 in 1974, the state of the law
in Oregon and elsewhere was that the common law required
8
The court did not explain its reasoning in either of the Newlin cases, but the
statute authorizing enhanced sentences for prior convictions for selling intoxicating
liquor did not specify that the state need not plead the prior conviction in the
indictment, see Oregon Laws, title XIX, ch VIII, § 2224-61 (1920), and the court
held that the failure to include the prior convictions in the indictment precluded
the state from seeking an enhanced punishment based on the defendant’s prior
conviction.
9
Defendant also appears to rely on State v. Hoffman, 236 Or 98, 385 P2d
741 (1963), to support a different view of the pre-1974 case law. His reliance on
Hoffman is misplaced. In that case, the court recognized that, at common law, “a
prior conviction was regarded as part of an indictment which must be established
when the Crown sought to invoke an enhanced penalty for the crime charged.”
Id. at 104-05 (citing Blacker and Waterhouse). It recognized, however, that the
legislature could and had provided that those sentence enhancement facts were
not part of the crime and need not be pleaded in the indictment. Id. In reaching
that conclusion, the court did not distinguish between different types of sentence
enhancement facts. Rather, what mattered in the court’s analysis was that those
sentence enhancement facts were not “acts declared to be criminal by legislative
action.” Id. at 107.
112 State v. Reinke
that sentence enhancement facts be pleaded in an indictment,
but the legislature had the power to specify otherwise. The
question whether the grand jury had to find and plead
sentence enhancement facts turned on legislative intent. If
the legislature had manifested its intent to depart from the
common-law rule, then the grand jury did not have to find
or plead any sentence enhance facts. Rather, to borrow the
phrase that this court used in Hicks, the grand jury had to
find and plead only the elements of the “conventional charge.”
The context demonstrates that, when the people adopted
the current version of Article VII (Amended), section 5, they
would have understood that whether a sentence enhancement
fact was an element of the crime that had to be pleaded
in the indictment was a question of legislative intent and
turned on whether the legislature had provided a means of
giving notice of those facts other than by indictment.
Not only is the context at odds with defendant’s inter-
pretation of Article VII (Amended), section 5, but the legis-
lative history of the current version of that section does not
support defendant’s position. As noted, the people adopted
the current version of section 5 in 1974 after the legislature
referred a measure to the people. The official explanation
accompanying the measure stated that its purpose was to
give prosecutors greater latitude to charge by information.
See Official Voters’ Pamphlet, General Election, Nov 5, 1974,
13. The explanation told the voters that the new procedure
would ensure that there is probable cause that “a felony
has been committed.” Id. Similarly, the ballot title for the
measure explained that a grand jury indictment was not
necessary if “a magistrate finds at a preliminary hearing
that there is probable cause to believe that the person in fact
committed a felony.” Id. at 16. Both the ballot title and the
official explanation of the measure equated the word “crime”
in the text of the proposed amendment with the word “felony.”
The term felony ordinarily refers to specific offenses, such
as second-degree kidnapping, not enhanced punishment
authorized for those offenses.
Considering the text, context, and legislative his-
tory of Article VII (Amended), section 5, we conclude that
section 5 requires the grand jury to find and plead only the
elements of the crime as defined by the legislature. Article
Cite as 354 Or 98 (2013) 113
VII (Amended), section 5, does not contemplate, as a matter
of state constitutional law, a “crime” that differs from the
conventional crime that the legislature has defined. To be
sure, this court’s earlier cases state that, when the legislature
has not provided some other means by which defendants
may be notified of sentence enhancement facts, we may infer
that the legislature intended that the grand jury would find
and the indictment would plead those facts. That inference
does not operate as a matter of constitutional law; rather, it
reflects an understanding of the legislature’s intent. And it
does not help defendant in this case. As noted, the legislature
has provided that a prosecutor need not plead sentence
enhancement facts in the indictment. ORS 136.765. Timely
written notice will suffice. Id. Defendant’s constitutional
challenge under Article VII (Amended), section 5, fails.
II.  ARTICLE I, SECTION 11
Defendant also argues that the grand jury’s failure
to find and plead the facts necessary to impose a dangerous
offender sentence violates Article I, section 11. Defendant relies
on two clauses in Article I, section 11, to support that argu-
ment. See Or Const, Art I, § 11. One of those clauses, the Notice
Clause, provides a person accused of a crime the right “to
demand the nature and cause of the accusation against
him.” Id. Another clause, the Jury Trial Clause, guarantees
the accused “the right to public trial by an impartial jury”
in all criminal prosecutions. Id. Those two clauses concern
distinct rights, and we address defendant’s arguments under
each clause separately.
A.  The Notice Clause in Article I, section 11
At common law, an indictment served to put a defen-
dant on notice of the charges against him or her. See Wayne
R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr,
5 Criminal Procedure § 19.1(a) (3d ed 2007). Initially, common-
law pleading requirements were fairly straightforward.
Id. (discussing fourteenth-century pleading requirements).
Later, they became technical and arcane. Id. § 19.1(b).
Indeed, one author described a common-law indictment as
a “
‘lengthy and tortuous document’  “ ” ‘replete with archaic
terminology and ritualistic formulae * * * [which] served more
114 State v. Reinke
to mystify than inform the defendant.’ ” Id. § 19.1(a) (quoting
Note, 53 Harv L rev 122, 122 (1939)). As a result, some courts
in the mid-nineteenth century began to relax the common-
law pleading rules. Id. § 19.1(b). However, constitutional
clauses, such as the Notice Clause in Article I, section 11,
which gives a defendant the right “to demand the nature
and cause of the accusation against him,” limit the extent
to which courts and the legislature can simplify what an
indictment must contain. See State v. Smith, 182 Or 497,
501-02, 188 P2d 998 (1948).
This court explained in Smith that the Notice Clause
in Article I, section 11, permits the simplification of common-
law pleading rules but does not “authorize the omission
from an indictment of allegations necessary to describe a
specific crime.” Id. at 501 (citing Commonwealth v. Freelove,
150 Mass 66, 22 N.E. 435 (1889)). In Smith, the question was
whether the indictment was sufficiently particular, and this
court held that the defendant’s statutory opportunity to
demur to the indictment and “question [its] sufficiency *  * *
as to definiteness and certainty meets * * * the requirements
of the bill of rights in this respect”; that is, the procedural
opportunity to demur to the indictment was sufficient to
satisfy the constitutional right of an accused to demand
notice of the nature and cause of the accusations against
him or her. Id. at 507.
The court in Smith did not have occasion to address
the issue defendant raises here—whether sentence enhance-
ment facts are “allegations necessary to describe a specific
crime” within the meaning of the Notice Clause in Article I,
section 11. See Smith, 182 Or at 501 (using that phrase to
describe what the constitution requires an indictment to
contain). Defendant relies on two passages from Bishop’s 1895
treatise on criminal procedure to show that they are. One
passage on which defendant relies addressed common-
law pleading requirements. The other passage referred to
clauses similar to the one in Article I, section 11, that give
an accused the right to be informed of the nature and cause
of the accusation.10
10
Although defendant states that the constitutional passage he quotes is from
Bishop’s 1858 treatise on substantive criminal law, the passage is not found in that
Cite as 354 Or 98 (2013) 115
Defendant’s argument based on Bishop’s treatise
rests on three premises, each of which is essential to his con-
clusion. The first premise is that the passages from Bishop
on which defendant relies refer to sentence enhancement
facts rather than facts that distinguish one degree of a
crime from another. The second premise is that the Notice
Clause in Article I, section 11, incorporates the common-
law pleading requirements described in Bishop’s treatise.
The third premise is that the Notice Clause, as defendant
interprets it, survived the 1974 amendment to Article VII
(Amended), section 5. We consider those issues in turn.
Defendant relies on statements from Bishop’s treatise
on criminal procedure that the common law required that
an indictment contain “every fact which is legally essential
to the punishment to be inflicted.” See Joel Prentiss Bishop,
1 Commentaries on the Law of Criminal Procedure §§ 77, 81,
84, 88 (1872).11 For example, Bishop wrote:
“[T]he common law requires each and every individual thing
which itself or a statute has made an element in the wrong
upon which the punishment is based, to be alleged in the
indictment. The court, in adjudging the punishment,—or
the jury, in assessing it, as is done in some of our States,—
can take into its consideration nothing except what is
specifically charged in the indictment.”
Id. § 84 (summarizing two cases previously discussed) (empha-
sis added). To prove that proposition, Bishop discussed two
cases in which the English courts had held that an indictment
must specify the facts on which the crime and the increased
punishment depend. See Criminal Procedure §§ 82-83. The
two cases that Bishop discussed suggest that his statement
may not mean as much as defendant perceives.
In one case, a statute divided the crime of burglary
into two degrees. Id. § 83. The higher degree of the crime,
treatise but comes instead from Bishop’s 1895 treatise on criminal procedure. See
Joel Prentiss Bishop, 1 New Criminal Procedure § 88 (1895).
11
The 1872 and 1895 versions of Bishop’s treatise differ in minor respects. To
the extent that either version of those treatises provides an insight into the framers’
intent, the 1872 treatise is closer in time and thus more relevant. Accordingly, we
refer to the 1872 version of Bishop’s treatise in considering defendant’s argument.
As noted below, an 1866 version of Bishop’s treatise exists that differs from the
1872 version; it is closer in time and provides even less support for defendant’s
argument.
116 State v. Reinke
which Bishop characterized as the “first degree of burglary,”
required proof of breaking and entering a dwelling house and,
while inside, striking an inhabitant. Id. Bishop explained
that the indictment in the case was deficient because it
alleged that the defendant had broken and entered into a
house and had struck “D. James” when, in fact, the person
whom the defendant had struck was named Jones, not
James. Id.
Two propositions follow from Bishop’s description of
that case. First, it appears that the offense that the indictment
charged (first-degree burglary) was a separate offense from
the lesser degree of the crime. The lower degree of the crime
consisted of breaking and entering, and the higher degree
consisted of breaking, entering, and striking an inhabitant.
To say that an indictment must allege all the elements of
a separate offense that carries a greater punishment is
unexceptional and does not suggest, as defendant concludes,
an intent to require that sentence enhancement facts be
pleaded in addition to the elements of the offense. Second,
the deficiency in the indictment that Bishop identified was
not the failure to allege an element of the offense, much less
the failure to allege a sentence enhancement fact; rather,
the deficiency was a variance between the facts alleged and
proved. Although the statement from Bishop appears, at
first blush, to support defendant’s position, one of the cases
on which that statement is based suggests that it may mean
less than first appears.
The other case that Bishop discusses is to the same
effect. See id. § 82 (discussing King v. Monteth, 168 Eng Rep
452).12 The defendant in Monteth’s case was charged with
the crime of assault with intent to rob. Monteth, 168 Eng
Rep at 452. That crime, as described in the decision, was a
separate offense that carried with it a greater punishment
than assault. Id. at 452-53. The problem with the indictment,
according to the decision, was that it omitted an allegation
that Monteth had acted with force and violence. As a result,
the indictment alleged an assault with an intent to steal
rather than an assault with an intent to rob. Id. Because
12
 Bishop takes the description of Monteth’s case from an English treatise,
Russell on Crimes. See Criminal Procedure § 82.
Cite as 354 Or 98 (2013) 117
the crime with which Monteth was charged, as the decision
described it, was a separate offense that carried a greater
punishment, the principle that Bishop drew from it again
appears unremarkable: If a separate offense carries a
greater punishment, the indictment must allege all the ele-
ments of that offense.
Having discussed common-law requirements, Bishop
stated that the federal constitution followed the common
law. Criminal Procedure § 88. He then mentioned various
federal constitutional clauses, many of which do not appear
to have anything to do with what the grand jury must find
or the indictment must plead. See id. Among the clauses he
cited, however, was the clause in the Sixth Amendment that
provides that “in all criminal prosecutions, the accused shall
enjoy the right *  * to be informed of the nature and cause
*
of the accusation.” Id. Bishop concluded that that clause and
similar state constitutional clauses are:
“full and complete guarantees, to all persons held for crimes
of whatever sort, that, before they shall be convicted, there
shall be an allegation made against them of every element
of crime which the law makes essential to the punishment
to be inflicted.”
Id. Read in the context of Bishop’s preceding discussion of
the common law, that statement provides less support for
defendant than first appears. To the extent that Bishop is
speaking only about separate offenses in describing both the
common law and the constitutional guarantees, the state-
ment is unexceptional.13
This is not to say that the common law is completely
at odds with defendant’s position. In his concurring opinion
in Apprendi, Justice Thomas explained that, beginning in
the mid-nineteenth century, some courts recognized that a
13
To the extent that defendant argues that Bishop’s statements, taken at face
value, reflect the understanding of the persons who adopted the Oregon Consti-
tution, we reach a different conclusion. Bishop published the 1872 edition of his
treatise 15 years after Oregon’s constitution was drafted and adopted. The first
edition of Bishop’s treatise on criminal procedure was published in 1866 and omits
almost all the statements on which defendant relies in support of his argument. See
Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure, §§ 293-95
(1866). Those sections address the need to plead allegations related to punishment
and are consistent with the conclusion we reach.
118 State v. Reinke
fact that increased punishment either was an element of the
offense or “create[d] two grades of crime.” See 530 U.S. at
502-09 (Thomas, J., concurring).14 Justice Thomas’s opinion
relied primarily on cases from Massachusetts and Wisconsin
that interpreted statutes providing increased punishment
for different criminal acts. One case, for example, held
that an indictment for larceny must allege the value of the
object stolen both because that was “well settled practice”
and because the Massachusetts statutes “prescribe[d] the
punishment for larceny, with reference to the value of the
property stolen.” Hope v. Commonwealth, 50 Mass 136, 137
(1845).
The court did not explain in Hope whether the
value of the property was an element of an offense that
distinguished different degrees of larceny or whether the dif-
fering values of the property stolen were sentence enhance-
ment facts that increased the punishment for a single offense
of larceny.15 Two years later, however, the Massachusetts
Supreme Judicial Court described a similar set of statutes
as one that “creat[es] two grades of crime.” See Larned v.
Commonwealth, 53 Mass 240, 242 (1847) (describing burglary
statutes). Justice Thomas found both cases informative.
As we understand the Massachusetts cases, the court
inferred from the terms of the statute that the legislature
had intended to create two separate offenses, the greater of
which authorized the imposition of increased punishment.
The primary case from Wisconsin that Justice Thomas
cited is to the same effect. See Lacy v. State, 15 Wis 15 (1862).
In that case, a statute made it a crime to willfully and
maliciously burn a dwelling house at night and provided
three degrees of punishment if: (1) no one was lawfully
inside when the house was burned, (2) a person was lawfully
inside but no one died as a result of the fire, and (3) a person
died as a result of the fire. See Apprendi, 530 U.S. at 504
14
Defendant does not rely on either Justice Thomas’s concurring opinion or
the cases cited in it. However, the concurrence undertook an extensive review of
mid-nineteenth century cases, and we would be remiss if we did not examine both
the cases Justice Thomas cited and the conclusions he drew from them.
15
Justice Thomas’s concurring opinion sets out the larceny statute in a foot-
note. See Apprendi, 530 U.S. at 503 n 3. The statute is ambiguous as to whether
the legislature intended to create three separate offenses or a single offense with
increased punishment based on the differing value of the property taken.
Cite as 354 Or 98 (2013) 119
n 4 (quoting the Wisconsin statute). In Lacy, the indictment
alleged that the defendant had willfully and maliciously
burned the barn and “dwelling house of Manoah Griffin,
*  * one Manoah Griffin *  * being then in said dwelling
*  *
house,” but that the burning had not resulted in Manoah
Griffin’s death. Id. at 16.
The Wisconsin Supreme Court explained that the
statute “create[d] three distinct statutory offenses,” and it
recognized that the state had intended to charge the defen-
dant with the mid-level offense—burning a dwelling house
while a person was lawfully inside without causing the loss
of that person’s life. Id. at 16. The court concluded, however,
that the indictment was deficient because it did not allege
that Manoah Griffin was “lawfully” inside Manoah Griffin’s
dwelling house. Id. at 16-17. The court reasoned, “[i]t is cer-
tainly not impossible that there might be one Manoah
Griffin who owned the dwelling house, and another by the
same name unlawfully in it when it was consumed” by fire.
Id. at 17.16 Because the indictment had failed to allege a
fact necessary to sentence the defendant for the mid-level
offense, the court reversed his conviction and remanded
to permit the trial court to sentence the defendant for the
lesser-included offense of burning a dwelling house with no
one lawfully inside. Id. at 19-20.
Relying primarily on those Massachusetts and
Wisconsin cases, Justice Thomas concluded that, as a mat-
ter of federal constitutional law, facts that lead to increased
punishment are elements of the offense that must be pleaded
in the indictment and proved to the jury.17 In our view, those
cases turn on what the legislature intended; that is, the
courts in those cases inferred that the legislature intended
16
The court held out the possibility that the result might have been different
if the indictment had referred to “said Manoah Griffin” instead of “one Manoah
Griffin.” In that case, it might be possible to infer that the Manoah Griffin who was
inside the dwelling house was the Manoah Griffin who owned it. See Lacy, 15 Wis
at 17.
17
Some scholars have questioned whether the nineteenth century cases were
as uniform as Justice Thomas’s concurring opinion suggested. See Stephanos Bibas,
Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110
Yale L J 1097, 1129 (2001) (relying on statements from a case from another juris-
diction to conclude that “there was no uniform rule of charging and proving all
sentence enhancements at common law”).
120 State v. Reinke
to create different degrees of a crime based on the harm
inflicted. There is a difference between inferring that the
legislature intended to create separate offenses or degrees
of a crime and inferring that it intended to create a single
offense with increasing degrees of punishment based on the
presence of differing sentence enhancement factors. Few
people would dispute that an indictment must allege all the
elements of a separate offense. And, if as those cases suggest,
that is all that the Massachusetts and Wisconsin decisions
stand for, then those cases shed little light on whether,
as a matter of constitutional law, the framers of Oregon’s
constitution would have understood that the right to demand
the nature and cause of the accusation against a person
requires an indictment to plead facts that, as a matter of
legislative intent, are merely sentence enhancement factors.
Beyond that, as discussed above, the common law
assumed that sentence enhancement facts had to be pleaded
in the indictment unless the legislature provided otherwise.
See Waterhouse, 209 Or at 429-31 (describing the common-
law practice); Ross’s Case, 19 Mass 165, 171 (1824) (same). If,
however, the legislature provided another means of notifying
a defendant of sentence enhancement facts, then those facts
did not have to be pleaded in the indictment. Id. In our
view, even if we assumed that the Notice Clause in Article I,
section 11, incorporated common-law pleading requirements,
it is difficult to identify a consistent or coherent common-law
practice that would require indictments to plead sentence
enhancement facts that, as a matter of legislative intent,
are not elements of the crime. The initial premise on which
defendant’s Notice Clause argument rests is, at best, suspect.
The second premise on which defendant’s argument
rests is also problematic. As noted, his argument rests on the
premise that the persons who wrote and adopted the Notice
Clause in Article I, section 11, intended that indictments in
criminal cases would conform to common-law pleading prac-
tice. Defendant selects one aspect of what he perceives to be
common-law pleading practice—that an indictment must
plead sentence enhancement facts. He overlooks, however,
other aspects of that practice, such as the sort of technical
and arcane pleading requirements on which the decisions
Cite as 354 Or 98 (2013) 121
in Lacy and Monteth turned. Defendant never explains why
the voters would have intended to incorporate the former
aspect of common-law practice without also incorporating the
latter. Cf. State v. Smith, 301 Or 681, 697, 725 P2d 894 (1986)
(plurality) (explaining that “the tail goes with the hide”).
This court has rejected the proposition that the
Notice Clause in Article I, section 11, requires that indict-
ments include the sort of technical and arcane factual detail
that nineteenth-century common-law pleading practice did.
See, e.g., Smith, 182 Or at 509. If the people did not intend
to require that indictments conform to that aspect of
nineteenth-century pleading practice, it is difficult to see
why they would have intended that the Notice Clause would
incorporate what is, in our view, a far more uncertain common-
law proposition—that an indictment must go beyond pleading
the elements of the crime and also plead sentence enhance-
ment facts.
Defendant’s argument faces a final hurdle. Even if
there were some suggestion that the common law required
indictments to plead sentence enhancement facts and that,
in adopting the Notice Clause in 1857, the voters intended
to give constitutional effect to that common-law practice, the
current version of Article VII (Amended), section 5, looks in a
different direction. As explained above, Article VII (Amended),
section 5, requires the grand jury to determine whether
probable cause exists for the elements of the legislatively
defined crime. It does not require the grand jury to determine
whether there is probable cause for sentence enhancement
facts that would support, for example, a dangerous offender
sentence.
It is difficult to reconcile the two constitutional pro-
visions, at least as defendant interprets the Notice Clause
in Article I, section 11. If defendant’s reading of the Notice
Clause were correct, it would require an indictment to plead
facts that Article VII (Amended), section 5, does not require
the grand jury to find. The two provisions, as defendant inter-
prets them, conflict. In that event, the later-enacted pro-
vision controls. See In re Fadeley, 310 Or 548, 560, 802 P2d
31 (1990) (explaining that, to the extent that Article VII
(Amended), section 8, conflicted with Article I, section 8, the
122 State v. Reinke
later-enacted provision controlled); see also Coalition for
Equit. School Fund. v. State of Oregon, 311 Or 300, 309, 811
P2d 116 (1991) (same). As this court reasoned in Fadeley,
“[w]hen the people, in the face of a pre-existing [constitutional]
right, * * * adopt a constitutional amendment that by its fair
import modifies the pre-existing right, the later amendment
must be given its due.” 310 Or at 560. We hold that the Notice
Clause of Article I, section 11, does not require that an indict-
ment allege sentence enhancement facts.
B.  The Jury Trial Clause of Article I, section 11
Defendant invokes one other clause in Article I,
section 11, the clause that guarantees an accused the “right
to public trial by an impartial jury” in all criminal prose-
cutions. Defendant argues that, as we have interpreted the
Jury Trial Clause, he had a right to have the jury find one of
the three sentence enhancement facts necessary to impose a
dangerous offender sentence—whether he was “being sen-
tenced for a felony that seriously endangered the life or
safety of another.” See ORS 161.725(1)(b). The state does not
dispute that the Jury Trial Clause of Article I, section 11,
required the jury to find that fact, and we assume that it
did. The question that remains is whether the Jury Trial
Clause also governs what the grand jury must find and the
indictment must plead.
In interpreting an original constitutional provision,
we consider the text of the provision, its history, and our
cases interpreting it. See Priest, 314 Or at 415-16 (looking to
those sources). Textually, the clause of Article I, section 11,
on which defendant relies guarantees the right to a jury
trial in all criminal prosecutions. Or Const, Art I, § 11. It
does not address the facts that the grand jury must find in
order to return an indictment. The two bodies are distinct,
and it is textually difficult to convert a constitutional right
to a trial by jury into a requirement that governs what the
grand jury must find to issue an indictment.
The second problem is related to the first. The con-
text is at odds with defendant’s reliance on the Jury Trial
Clause of Article I, section 11. As explained above, a separate
provision of the constitution, Article VII (Amended), section 5,
Cite as 354 Or 98 (2013) 123
governs the facts that the grand jury must find to return
an indictment for a felony. As also explained above, that
provision does not require that grand juries find sentence
enhancement facts to indict a defendant for a crime. We would
have to ignore Article VII (Amended), section 5, and indeed
read it out of the constitution, to interpret the Jury Trial
Clause of Article I, section 11, as defendant urges us to do.
To the extent that the two constitutional provisions conflict,
Article VII (Amended), section 5, controls. See Fadeley, 310 Or
at 560.
There is another contextual problem with defen-
dant’s argument. This court explained in State v. Ice, 343 Or
248, 257, 170 P3d 1049 (2007), rev’d on other grounds, 555 U.S.
160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), that the existence
of the jury trial right under Article I, section 11, does not
“tur[n] on whether the [sentencing] factor extends the length
of a defendant’s sentence beyond the statutory maximum,”
which is one criterion for identifying sentence enhancement
facts. Put differently, the class of facts that the Jury Trial
Clause of Article I, section 11, requires juries to find is not
coextensive with the class of sentence enhancement facts.
The former class is both broader and narrower than the
latter class.18 In our view, the lack of identity between the
facts that the Jury Trial Clause requires the jury to find and
sentence enhancement facts, makes the Jury Trial Clause of
the Oregon Constitution an unlikely source for the constitu-
tional requirement that defendant asks us to announce.
Finally, our cases consistently have held that, even
though the Jury Trial Clause of Article I, section 11, requires
the jury to find some facts related to sentencing, those
sentencing facts are not elements of the offense that the
grand jury must find and that the indictment must plead.
See, e.g., Johnson, 340 Or at 352; Oatney, 335 Or at 292-97;
Wagner, 304 Or at 171-72. We consistently have held that, as
18
As the court explained in Ice, the Jury Trial Clause requires juries to find
some facts necessary to impose mandatory minimum sentences, even though those
facts do not result in a greater sentence than the statutory maximum. See 343 Or
at 257. Conversely, the Jury Trial Clause does not require juries to find facts that
result in a greater sentence than the statutory maximum when, to use a shorthand
formulation, those facts relate to the offender rather than the offense. See id. at
257-61 (describing which “offense-specific” facts the Jury Trial Clause requires a
jury to find).
124 State v. Reinke
a matter of state constitutional law, the grand jury’s task is
more limited. Johnson, 340 Or at 352. It only needs to find
the elements of the “conventional charge” as the legislature
has defined it. Id.; Hicks, 213 Or at 641. It need not find any
sentence enhancement facts. In that regard, we note that
none of the common-law history that defendant has cited
(to the extent it provides any support for him) supports the
proposition that the grand jury must find only a subset of
sentence enhancement facts. Defendant thus provides no
history to support his argument that the Jury Trial Clause
of Article I, section 11, requires the grand jury to find the
same limited set of facts that it requires juries to find. The
text of the Jury Trial Clause, its history, and the cases inter-
preting it provide no support for defendant’s reliance on that
clause. We conclude that neither Article VII (Amended),
section 5, nor the two clauses in Article I, section 11, on which
defendant relies required the grand jury to find and plead
sentence enhancement facts.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.