Oregon Supreme Court decides Dilts (and ducks issues)

In the aftermath of rendering its opinion in Blakely, the Supreme Court also vacated an Oregon Supreme Court judgment involving Oregon's guideline system and remanded the case for further consideration in light of Blakely. The case, Oregon v. Dilts, No. 99CR-0172; CA A106034 (Or. Dec. 16, 2004), has now been decided by the Oregon Supreme Court.

In Dilts, the Oregon Supreme Court finds Blakely problems in aspects of Oregon's sentencing system, but it expressly rejects the state's invitation to invalidate the entire Oregon sentencing guidelines and also ducks other "remedy" issues.  Here are just a few highlights from Dilts:

[W]e hold in this case only that, under Blakely, the sentencing guidelines were applied unconstitutionally to defendant. We agree with the state that this decision will have a significant impact on criminal sentencing because Blakely also makes it clear that whenever a trial court, in the absence of an effective waiver, imposes a sentence that exceeds the presumptive sentence on the basis of aggravating facts found by the trial court rather than by a jury (other than the fact of a prior conviction), that sentence amounts to an unconstitutional application of the sentencing guidelines.

However, the fact that the sentencing guidelines may be applied unconstitutionally, as they were in this case, does not mean that we must reject the sentencing guidelines themselves as unconstitutional. On the contrary, the Court in Blakely specifically stated that determinate sentencing schemes, like Oregon's sentencing guidelines, are permissible if they are implemented "in a way that respects the Sixth Amendment."...

The state argues that, if this court concludes that defendant's sentence is invalid, then it should remand to allow a jury to consider aggravating factors that could support a sentence in excess of the presumptive sentence in the guidelines.... Defendant disagrees, however, with the state's position that, at this stage of the proceeding, it now could subject defendant to a separate sentencing trial on remand during which it would seek to prove to a jury the aggravating facts previously found by the trial court. Defendant asserts that the common law and various state and federal constitutional provisions require the state to allege in the indictment any facts that may enhance the defendant's sentence, or at least to notify the defendant before trial that those facts will be at issue. Defendant points out that the indictment here did not allege such facts and that the state did not notify defendant that such facts would be at issue before his guilty plea. In those circumstances, he argues, the state is precluded from seeking to present those facts to a sentencing jury now.

We decline to answer the question that the state raises, because, at this point in the proceeding, it is not presented in a sufficiently concrete way. It is, at least, contingent on actions that the parties may or may not take on remand. The only concrete issue before us at this time is whether defendant's sentence, which we affirmed in Dilts I, is invalid in light of Blakely. We have held that it is. We also have rejected the state's argument that we nevertheless should affirm defendant's sentence by severing the "mandatory" sentence provision of the guidelines and applying the guidelines to defendant, as so modified....

The Oregon Supreme Court does additional "issue ducking" in footnote five of the opinion, which also highlights how the states are waiting for some additional guidance from the US Supreme Court:

The state makes several other arguments regarding how this court should or should not apply Blakely in other contexts.  Here, we reach only the arguments necessary to the disposition of this case in this court. We recognize the many unsettled questions regarding the application of Blakely and Apprendi to different aspects of Oregon's sentencing scheme. We think that those questions are better answered in the context of specific cases in which they are raised and briefed. Moreover, we are aware that we may be shooting at a moving target.  In response to Blakely, prosecutors, the criminal defense bar, and members of the legislature in many states, including Oregon, may be reviewing sentencing procedures for possible modification.  Additionally, the United States Supreme Court has granted petitions for certiorari in two cases that raise Blakely-related issues, [citing Booker and Fanfan].  In deciding those cases, the Court may provide further guidance regarding the scope of the jury trial right as it applies to criminal sentencing.