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                         FOR THE COUNTY OF MULTNOMAH

STATE OF OREGON,                                     )    No. 123456
                        Plaintiff,                   )    MEMORANDUM IN SUPPORT OF
                                                     )    OBJECTION TO THE USE OF NON-
         vs.                                         )    ENUMERATED AGGRAVATING
                                                     )    FACTORS
PARIS HILTON,                                        )
                        Defendant.                   )

Defendant Paris Hilton, by and through counsel, MPD Lawyer, respectfully submits this
memorandum in support of her objection to the use of non-enumerated aggravating
factors to support an upward departure.

The State’s argument that this court should impose an upward departure based on non-
enumerated factors suffers from two independent and fatal flaws: non-enumerated
factors violate Oregon’s separation of powers doctrine and they are unconstitutionally

First, non-enumerated factors violate the separation of powers provisions of the Oregon
Constitution. The legislature may delegate some definitional authority to other branches
of government, but it may not abandon wholesale its power to make law, particularly its
power to define and set the punishment for crimes. At a minimum, the legislature must
describe the facts and circumstances that trigger the authority to impose a greater range of
punishment. The legislature did not describe the facts and circumstances that constitute
non-enumerated aggravating factors other than the phrase “substantial and compelling
reasons,” which potentially encompasses an extremely broad category of facts devised by
courts and prosecutors. The delegation of law-making authority without sufficiently
specific guidelines violates Article IV, section 1(1), Article III, section 1, and Article I,
section 21, of the Oregon Constitution.
Second, non-enumerated factors are unconstitutionally vague. The criminal conduct and
circumstances that result in greater punishment must be defined with precision in order to
avoid arbitrary and discriminatory enforcement and to provide potential defendants with
advance notice of what conduct and circumstances result in greater punishment.
Aggravating factors trigger the court’s authority to impose a greater range of punishment.
Non-enumerated factors, by lack of prospective definition, fail to provide notice of their
content to the public and provide near-unlimited post-hoc charging discretion to
prosecutors and courts, all in violation of Article I, sections 20 and 21, of the Oregon
Constitution and the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.

I. The use of non-enumerated factors to increase a sentence violates separation of
powers provisions of the Oregon Constitution.

A. Under separation of powers provisions of the Oregon Constitution, one
department of government may not perform the core functions of another

Article III, section 1, of the Oregon Constitution provides for the separation of powers
into the Legislative, Executive, and Judicial departments. It serves as a mechanism for
dividing the powers of state government and for placing limits on the authority of each
department. Article IV, section 1(1), of the Oregon Constitution provides that the
legislative power is vested in the Legislative Assembly. Article I, section 21, of the
Oregon Constitution provides that no law shall be passed, “the taking effect of which
shall be made to depend on any authority except as provided in the Constitution.” Article
I, section 21, reinforces the effect of separation of powers provisions. Hart v. Paulus, 296
Or 352, 361, 676 P2d 1384 (1984) (invalidating a legislatively referred constitutional
amendment because the referral made assent of local officials a necessary step between
legislative approval of the constitutional amendments and referral to vote of the people in
violation of Article XVII, section 1, of the Oregon Constitution).
Separation of powers is deemed to be “essential to the preservation of liberty.”
Monaghan v. School District No. 1, 211 Or 360, 315 P 2d 797 (1957). Individual liberty
is protected when the essential and different powers of government are not concentrated
in one department or commingled between departments. Monaghan, 211 Or at 364-66.

The Oregon Supreme Court has interpreted Oregon separation of powers provisions to
limit the institutional authority of each department by virtue of that separation. For
example, one department of government may not “unduly burden” another department in
an area of responsibility or authority committed to that other department of government.
State ex rel Emerald PUD v. Joseph, 292 Or 357, 361, 640 P2d 1011 (1982) (legislative
command that Court of Appeals must hear and determine cases within three months does
not unduly burden judicial functions); Acocella v. Allen, 288 Or 175, 180-81, 604 P2d
391 (1979) (statute allowing public defender committee to decline appointments does not
unduly interfere with judicial power). In addition, one department may not wholly
perform the functions committed to another department. State ex rel. Frohnmayer v.
Oregon State Bar, 307 Or 304, 310, 767 P2d 893, 896 (1989) (Attorney General review
of state bar’s assertion of exemption to public records law does not violate separation of
powers, because the review function was not a judicial power). On the other hand,
separation of powers does not require absolute separation between departments of
government; areas of authority may overlap without running afoul of constitutional
provisions. Acocella, 288 Or at 180-81. However, the essential separation must remain
intact. Monaghan, 211 Or at 364-66. Thus, the legislature may delegate to another
governmental entity the limited power to determine mechanistic details that trigger the
court’s authority, but it may not materially delegate its core policy-making function. State
v. Long, 315 Or 95, 843 P2d 420 (1992), State v. Sargent, 252 Or 579, 449 P2d 845

B. Oregon courts may not set the range of penalties for crimes, because that is a
legislative function.
Courts may not define criminal offenses, because that is a legislative power. State v.
Rader, 94 Or 432, 465, 186 P 79 (1919) (“We must bear in mind that there are no
indictable common law crimes in this state.”); State v. Stephanus, 53 Or 135, 99 P 428
(1909) (court must look to criminal code to determine whether an act constitutes a crime);
State v. Vowels, 4 Or 324 (1873) (“[C]ourts have no right to assume jurisdiction of
common-law offenses not included in [Oregon’s] Criminal Code[.]”). In addition, except
for the power to punish for contempt, which is inherently a judicial power, Oregon State
Bar v. Lenske, 243 Or 477, 407 P2d 250 (1965), the power to determine what punishment
may be assessed against those convicted of a crime is exclusively a legislative function.
State v. McDonnell, 329 Or 375, 382, 987 P2d 486 (1999); State ex rel Huddleston v.
Sawyer, 324 Or 597, 615, 932 P2d 1145 (1997) (mandatory minimum sentencing scheme
does not violate separation of powers, because determining the range of possible
punishment is a legislative, not judicial, function); State v. Smith, 128 Or 515, 524, 273 P
323 (1929) (“The power to declare what punishment may be assessed against those
convicted of crime is not a judicial, but a legislative, power[.]”).

When the legislature does not define a punishment for a criminal offense, the sentencing
court may not affix a penalty. State v. Smith, 56 Or 21, 107 P 980 (1910) (when the
defendant committed a criminal offense at a time when the legislature had not provided
for a penalty, court did not have authority to impose punishment and the defendant was
ordered discharged from custody); State v. Gaunt, 13 Or 115, 9 P 55 (1885) (because
legislature did not provide for a penalty for the offense of selling spirituous liquor
without a license, court was without authority to impose punishment). Indeed, when a
sentencing court acts beyond the bounds of its sentencing authority, it infringes upon the
power of the legislature to determine the manner of punishment. State v. Leathers, 271 Or
236, 240, 531 P2d 901 (1975).

C. When a sentencing court imposes a departure sentence based on a non
enumerated aggravating factor, the court unconstitutionally identifies the
aggravated crime and sets the penalty for the crime, because the legislature did not
describe the facts that authorize a greater range of punishment.
In Sargent, the Oregon Supreme Court considered whether the Oregon legislature
unconstitutionally delegated its power when it empowered the Drug Advisory Council,
whose members were appointed by the governor, to designate prohibited drugs. The
legislature limited the prohibited drugs to:

        “[a]ny substance which the council finds as substantially affecting or altering
        consciousness, the ability to think, critical judgment, motivation, psychomotor
        coordination or sensory perception, and having potential for abuse when used
        without medical supervision.” Sargent, 252 Or at 581.

The court concluded that the legislature may delegate its lawmaking power when it
describes the “facts or circumstances . . . upon which the law will become operative” and
only delegates the power to determine whether those facts and circumstances exist.
584. The court held that the drug law complied with that standard, because the legislature
established “clear direction” about the effects of the drugs it wished to prohibit. Id. at

In Long, the Oregon Supreme Court considered whether ORS 162.185, the crime of
supplying contraband, unconstitutionally delegated legislative power to local
governments. The statute prohibits inmates from making or possessing “contraband,”
which was defined as “any article or thing which a person confined in a correctional
facility . . . is prohibited by statute, rule or order from obtaining or possessing, and whose
use would endanger the safety or security of such institution or any person therein.”
Long, 315 Or at 97. The court held that the statute was not an unconstitutional delegation,
because, just as in Sargent, the statutory definition particularly described the facts that
triggered criminal liability. Id. at 101.

Although the sentencing guidelines are contained in administrative rules, the guidelines
“have the authority of statutory law.” State v. Dilts, 337 Or 645, 103 P3d
95 (2004) (Dilts II); Langdon, 330 Or at 74. Defining an aggravating factor is a
legislative function, because the existence of the factor triggers the court’s authority to
impose a greater range of punishment. In authorizing departure sentences based on non-
enumerated aggravating factors, the sentencing court may determine that any facts merit
a departure, so long as the facts constitute “substantial and compelling reasons.” The
Drug Advisory Council in Sargent was authorized to deem a drug a dangerous drug only
if it met a detailed definition of dangerous drugs. In Long, the definition of contraband
did not extend to any item, only those items that jails and prisons specifically prohibited
and that would endanger the institution’s safety and security. In those cases, the delegated
standards were bounded by detailed, factual criteria; the standards did not have near
infinite scope or vague and general criteria.

The “substantial and compelling reason” standard exists at a level of generality
tantamount to common-law crime creation, a concept that is not only antiquated but is
antithetical to the separation of powers. Departure sentences become “operative” based
on the existence of any fact or set of facts that prosecutors or courts devise. The
legislature has failed its duty to determine the “facts or circumstances” that trigger the
authority to impose departure sentences. Consider the curious legislative anomaly
resulting from this failure: if the legislature disagreed with a court created factor, the
legislature would have to enact a statute “repealing” a factor it never enacted in the first
place. Complete delegation does not comply with Article IV, section 1(1), Article III,
section 1, and Article I, section 21, of the Oregon Constitution. It is therefore
impermissible to impose a departure sentence based on a non-enumerated aggravating
factor, including the factors used in this case.

D. The delegation of authority to define non-enumerated aggravating factors
violates the prohibition against prospective adoption by reference.

Even if the delegation of authority to define non-enumerated “substantial and
compelling” aggravating factors is sufficiently precise, the delegation is still invalid,
because it violates the prohibition against prospective adoption by reference. That
prohibition is rooted in Article I, section 21, of the Oregon Constitution, which prohibits
laws that delegate the power of amendment to another governmental entity. Advocates for
Effective Regulation v. City of Eugene, 160 Or App 292, 311, 981 P2d 368 (1999).

As the Oregon Supreme Court has explained:

       ‘When a statute adopts by specific reference the provisions of another statute, . . .
       such provisions are incorporated in the form in which they exist at the time of the
       reference, and not as subsequently modified; whereas, where the reference is
       general, such as a reference to a system or body of laws or to the general law
       relating to the subject in hand, the referring statute takes the law or laws not only
       in their contemporary form but also as they may be changed from time to time.’”
       Seale v. Mckennon, 215 Or 562, 336 P2d 340 (1959) (citations omitted).

A referential adoption, in which “the referring statute takes the law or laws not only in
their contemporary form but also as they may be changed from time to time” is void,
because it violates the prohibition in Article I, section 21, against passing laws “the
taking effect of which shall be made to depend upon any authority, except as provided in
this Constitution[.]” Strunk v. PERB, 338 Or 145, 238, 108 P3d 1058 (2005).

For example, the legislature’s and the Public Utility Commission’s referential adoption of
the National Electrical Code, as approved by the American Standards Association and
rules and regulations promulgated by the Commissioner of the Bureau of Labor, was void
because the referential adoption included the code in future form. Hillman v. North
Wasco Co. PUD, 213 Or 264, 281, 285-86, 323 P2d 664 (1958), overruled on other
grounds, Maulding v. Clackamas County, 278 Or 359, 563, P2d 731 (1977). Similarly, a
city charter’s incorporation of certain federal regulations’ definition of “hazardous
materials” was void because the regulations were not promulgated when the charter
provision was adopted. Advocates for Effective Regulation, 160 Or App at 313. Finally, a
city code’s adoption by reference of the state DUII statute was void because the
ordinance prospectively adopted the statute in its future form. Brinkley v. Motor Vehicles
Div., 47 Or App 25, 27, 613 P2d 1071 (1980).

When the 1989 Legislature approved the guidelines, Or Laws 1989, ch 790, section 87,
the legislature adopted the concept of non-enumerated aggravating factors, but the
definitions of specific non-enumerated factors did not exist. They came along later,
consequent to trial court action. In relying on non-enumerated aggravating factors, courts
have incorporated the later-created non-enumerated aggravating factors into the authority
under ORS 137.671 and OAR 213-008-0002(1) to impose departure sentences. That
incorporation of the later-created factors violates the prohibition on prospective adoption
by reference. Hillman, 213 Or at 281, 285-86; Advocates for Effective Regulation, 160 Or
App at 313; Brinkley, 47 Or App at 27. Laws adopted in violation of Article I, section 21,
are “void and of no effect.” See Strunk, 338 Or at 238 (statutes that violate the Article I,
section 21, prohibition on “law[s] impairing the obligation of contracts” are void).
Therefore, non-enumerated aggravating factors are void and of no effect and cannot
support a departure sentence.

II. Non-enumerated factors are unconstitutionally vague.

A. The vagueness doctrine encompasses separation of powers concerns particular to
criminal statutes.

Criminal statutes must be defined with greater precision than other laws. Megdal v.
Board of Dental Examiners, 288 Or 293, 298-99, 605 P2d 273 (1980). Both the conduct
constituting a criminal offense and the circumstances that result in the potential for
greater punishment must be described with precision. United States v. Batchelder, 442
US 114, 99 S Ct 2198, 60 L Ed 2d 755 (1979) (“[V]ague sentencing provisions may pose
constitutional questions if they do not state with sufficient clarity the consequences of
violating a given criminal statute.”); Giaccio v. Pennsylvania, 382 US 399, 86 S Ct 518,
15 L Ed 2d 447 (1966) (invalidating Pennsylvania law that allowed a jury to, upon the
defendant’s acquittal, make a determination requiring defendant to pay the costs of the
prosecution, with the threat of imprisonment until the costs are paid, but “without
prescribing definite standards to govern the jury’s determination”); State v. Wagner, 305
Or 115, 150-55, 752 P2d 1136 (1988) (analyzing statutory criteria for determining
whether a sentence of death should be imposed for vagueness under state and federal
constitutions); State v. Cory, 204 Or 235, 282 P2d 1054 (1955) (invalidating under
Article I, section 20, of the Oregon Constitution, the former Oregon Habitual Criminal
Act because it allowed the district attorney to apply the act to those who had committed
nonviolent felonies without providing a “yardstick or semblance of classification which
would enable the district attorney to determine under what circumstances” the act’s
enhanced penalty should apply).

A criminal statute must provide fair warning of what conduct or circumstances subjects a
person to criminal penalties, or it violates the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.11 State v. Illig-Renn, 341 Or 228, 239-40,
142 P3d 62 (2006); State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985). The purpose
of that requirement is to allow those subject to the law to conform their conduct to its

       “[B]ecause we assume that man is free to steer between lawful and unlawful
       conduct, we insist that laws give the person of ordinary intelligence a reasonable
       opportunity to know what is prohibited, so that he may act accordingly. Vague
       laws may trap the innocent by not providing fair warning.” Grayned v. City of
       Rockford, 408 US 104, 108-09, 92 S Ct 2294, 33 L 2d 2d 222 (1972).

In addition to the requirement that the legislature provide fair notice, the legislature may
not delegate broad discretion to judges, juries, and prosecutors to decide what conduct is
prohibited, else the resulting enactment violates Article I, sections 20 and 21, of the
Oregon Constitution,12 and the Due Process Clause. Illig- Renn, 341 Or at 239. The
vagueness doctrine can be seen as a species of separation of powers because it maintains
the integrity of departmental functions, prohibiting courts and prosecutors from
exercising legislative policy-making power. See Roy Pulvers, Separation of Powers
Under the Oregon Constitution: A User’s Guide, 75 Or. L. Rev. 443, 450-51, (1996). The
idea is to prevent decisions made on a wholly subjective basis, “with the attendant
dangers of arbitrary and discriminatory enforcement.” Grayned, 408 US at 108-09; see
also Kolender v. Lawson, 461 US 352, 358, 103 S Ct 1855, 75 L Ed 2d 903 (1983) (“The
most important aspect of the vagueness doctrine is . . . the requirement that a legislature
establish minimal guidelines to govern law enforcement.”).

In State v. Hodges, 254 Or 21, 27, 457 P2d 491 (1969), the Supreme Court explained the
interplay between the fair notice and the “delegation of uncontrolled discretion” aspects
of the vagueness doctrine:

       “In addition to its due-process function on putting persons on notice of the law’s
       demands, reasonable certainty serves a second purpose: adjudication. A law that
       permits the judge and jury to punish or withhold punishment in their uncontrolled
       discretion is defective as much for its uncertainty of adjudication as for its failure
       to notify potential defendants of its scope and reach. “. . . A vague statute lends
       itself to an unconstitutional delegation of legislative power to the judge and jury,
       and, by permitting the jury to decide what the law will be, it offends the principle,
       if not the rule, against ex post facto laws. See Oregon Constitution, Art I, § 21.”

To meet both sets of concerns, the legislature must define prohibited conduct to a
reasonable degree of certainty.13 Hodges, 254 Or at 27; see also Graves, 299 Or at 195.
If the prohibited conduct or circumstances resulting in greater punishment are not
described with sufficient specificity, the enactment is impermissibly vague.

B. Courts may resolve ambiguity in the course of interpreting a statute, but courts
may not constitutionally determine a statute’s essential meaning and scope.

A law is vague in the constitutional sense if the ordinary citizen must resort to sources
other than the statute itself to determine the law’s essential meaning and scope:
       “An ordinary person must be able to determine what acts the statute prohibits
       from the words of the statute, not from outside sources: Although a statute
       challenged for vagueness may sometimes be saved by a judicial interpretation that
       gives it the required definiteness, the statute itself must speak its meaning to the
       ordinary person. We cannot rely on the legislative history to provide a meaning
       that is not apparent from a reading of the statute in its context. A term that has no
       meaning to the ordinary person without reference to the legislative history cannot
       withstand a vagueness challenge.”

State v. Norris-Romine/Finley, 134 Or App 204, 210, 894 P2d 1221, rev den, 321 Or 512
(1995) (internal quotations omitted); see also State v. Rangel, 328 Or 294, 977 P2d 379
(1999) (when court narrows construction of a criminal statute to avoid constitutional
overbreadth, court “must keep faith with the legislature’s police choices, as reflected in
the statute’s words and respect the legislature’s responsibility in the first instance to enact
laws that do not intrude on the constitutionally protected right of free speech”). On the
other hand, the mere fact that a reader must refer to “published, substantive law” to
determine the parameters of a precise statutory term does not render law
unconstitutionally vague. Illig-Renn, 341 Or at 242 (inclusion of term “lawful order” does
not render crime of interfering with a police officer unconstitutionally vague because the
lawfulness of an order may be determined by reference to “published substantive law”).
External sources such as legislative history and case law can confirm the law’s meaning
or resolve an ambiguity, but those sources cannot provide the essence of the law’s

Recently, the United States Supreme Court described the difference between statutory
ambiguity and unconstitutional vagueness:

       “What renders a statute vague is not the possibility that it will sometimes be
       difficult to determine whether the incriminating fact it establishes has been
       proved; but rather the indeterminacy of precisely what that fact is. Thus, we have
       struck down statutes that tied criminal culpability to whether the defendant’s
       conduct was ‘annoying’ or ‘indecent’- wholly subjective judgments without
       statutory definitions, narrowing context, or settled legal meanings.”

United States v. Williams, 553 US 285, 306, 128 S Ct 1830, 1846, 170 L Ed 2d 650
(2008); see also Skilling v. United States, __ US __, 130 S Ct 2896, __ L Ed 2d __ (June
24, 2010) (holding that application of honest services fraud statute to conduct other than
schemes involving bribes or kickback would be unconstitutionally vague; accordingly
reversing defendant’s convictions based on his participation in scheme that did not
include conduct involving the core prohibition of the statute).

For example, the crime of knowingly disobeying the lawful order of a police officer is not
unconstitutionally vague, because the term “lawful order” can be ascertained by reference
to published substantive law. Illig-Renn, 341 Or at 242. But consider the outcome if the
legislature had defined a crime as “unlawfully annoying a police officer.” Presumably,
that law would be vague because the standard of “annoying” is subjective and
indeterminate. See Williams, 553 US at 306. Assume further that in committee hearings,
the legislature clarified that to unlawfully annoy a police officer, a person would have to
disobey an officer’s lawful order. Even though the legislative history provided a
permissible standard, that standard was not expressed in the words of the statute,
rendering the statute unconstitutionally vague. Norris-Romine/Finley, 134 Or App at 210.

The Oregon Supreme Court has never discussed the contours of what constitutes
substantial and compelling reasons to justify a departure sentence under the sentencing
guidelines. But the Supreme Court and the Court of Appeals have analyzed the factual
scope and legal sufficiency of non-enumerated aggravating factors that are similar to the
factors relied on by the sentencing court in this case. See Lennon, 348 Or at 157-58
(analyzing factual scope of factor “prior criminal sanctions have not worked to deter
defendant from continued criminal activities,” but noting that the defendant did not
challenge the legal sufficiency of the factor); State v. Williams, 133 Or App 191, 195 n 2,
893 P3d 3 (1995); State v. Mitchell, 113 Or App 632, 634, 833 P2d 1324 (1992)
(analyzing whether fact that defendant committed crimes while on pre-trial release
supported departure sentence); State v. Hill, 112 Or App 213, 214, 827 P2d 951 (1992)
(analyzing whether fact that defendant committed crimes while on probation supported
departure sentence). Those decisions are published, substantive law. But those decisions
do not render the use of those factors in future cases constitutionally permissible, because
the legislature did not identify the factor or provide a prospective definition for the

C. Non-enumerated factors are analogous to disfavored catch-all clauses and
accordingly, cannot pass constitutional muster.

In Upton, the indictment alleged persistent involvement and vulnerable victim, both of
which are enumerated factors in OAR 213-008-0002 and further defined in the
commentary. Upton, 339 Or at 675. The defendant argued that a departure sentence
violated the ex post facto clause in Article I, section 21, of the Oregon Constitution
because he did not receive notice that he might be subject to aggravating factors found by
a jury. The Oregon Supreme Court rejected that argument, reasoning that the defendant
was on notice that aggravating factors might apply, “because the aggravating factors
justifying a sentence exceeding the presumptive range were alleged in his indictment and
set out in the pertinent statutes.” Upton, 339 Or at 684 (emphasis added).

In Hodges, the defendant argued that the statute defining the crime of contributing to the
delinquency of a minor (former ORS 167.210) was unconstitutionally vague. The statute
prohibited causing or inducing a child to engage in conduct “which would cause it to
become a delinquent child.” The statute included a catchall phrase: “or any person who
does any act which manifestly tends to cause any child to become subject to the
jurisdiction of the juvenile court because his behavior, condition, or circumstances are
such as to endanger his own welfare or the welfare of others.” The Oregon Supreme
Court held that the enactment was unconstitutionally vague because the catchall clause
allowed courts and prosecutors too much interpretive subjectivity:
       “[T]he freewheeling power to legislate so as to find a defendant guilty should not
       be institutionalized in a criminal statute. Such a statute not only creates a serious
       danger of inequality in the administration of the criminal law, but it runs squarely
       contrary to the purposes of Oregon Constitution, Art I, s 21, which prohibits the
       delegation of legislative power.

       “The very looseness of the language [in the statute] encourages the prosecution to
       utilize the statute selectively to rid the community of individuals deemed
       subjectively less desirable than other offenders. It is the looseness of language
       which offends due process and makes the catchall clause of the statute an
       instrument of abuse.”

Id. at 28; see also Graves, 299 Or at 195 (catchall clause in definition of burglary tools
rendered statute unconstitutionally vague).

By sharp contrast to the enumerated factors upheld in Upton, non-enumerated factors
have no pre-articulated definition, and are limited only by the amorphous standard of
“substantial and compelling reasons.” It is a catch-all phrase of generality that suffers
from the same looseness of language identified in Hodges. The standard of “substantial
and compelling reasons” imprecisely describes the conduct or circumstances that expose
a person to increased punishment. In its potential application, the standard is malleable
and ultimately subjective. It is akin to increasing the potential sentence for a crime based
on “unreasonable” or “annoying” behavior.

Consider a scheme in which the legislature defined the crime of burglary as unlawfully
entering a building with the intent to commit a crime therein, and defined the degree of
the crime (and corresponding level of punishment) in terms of “substantial and
compelling reasons”: A person would commit third-degree burglary if he entered a
building with the requisite intent, but that burglary would be elevated to second-degree
burglary if one “substantial and compelling reason” existed and to first-degree burglary if
multiple “substantial and compelling reasons” existed. Such a scheme is clearly
unconstitutional because it fails to describe with any particularity the conduct or
circumstances that constitute the commission of the greater degree of the crime.

In authorizing departure sentences based on non-enumerated factors with no specific
definition save for the amorphous standard of “substantial and compelling reasons,” the
legislature did not provide a reasonable degree of certainty to courts and prosecutors
about what conduct might subject a defendant to an increased sentence. It is
constitutionally impermissible to impose a departure sentence based on a non-enumerated
aggravating factor, including the factors used in this case.

This memo is taken largely from the defense brief in State v Speedis, SC 058310,
currently pending before the Supreme Court.



For the foregoing reasons, defendant respectfully requests that this court find the use of
non-enumerated aggravating factors to be unconstitutionally vague and violative of the
separation of powers doctrine.

Respectfully submitted [DATE]

                                                       MPD Lawyer, OSB# 99999
                                                       Attorney for Defendant

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