Filed: June 30, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ROYCE FRANCIS SPEEDIS,

Petitioner on Review.

(CC CF070533; CA A138616; SC S058310)

On review from the Court of Appeals.*

Argued and submitted November 8, 2010.

Meredith Allen, Deputy Public Defender, Salem, argued the cause and filed the 

brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, 

Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed 

the brief for respondent on review. With him on the brief were John R. Kroger, Attorney 

General, and Mary H. Williams, Solicitor General.

Jesse W. Barton, Salem, filed the brief for amicus curiae Pacific Sentencing 

Initiative, LLC.

Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and 

Linder, Justices.**

KISTLER, J.

The decision of the Court of Appeals and the judgment of the circuit court are 

affirmed.

*Appeal from Umatilla County Circuit Court, Daniel J. Hill, Judge. 233 Or App 

297, 225 P3d 152 (2010).

**Gillette, J., retired December 31, 2010, and did not participate in the decision of 

this case. Landau, J., did not participate in the consideration or decision of this case.
1

1 KISTLER, J. 

2 Trial courts may impose enhanced sentences in criminal cases when an 

3 aggravating factor provides a substantial and compelling reason for doing so. OAR 213-

4 008-0001. The sentencing guidelines list some aggravating factors that trial courts may 

5 consider. See OAR 213-008-0002(1). Trial courts, however, also may rely on 

6 aggravating factors that are not listed (nonenumerated aggravating factors) to impose an 

7 enhanced sentence. See id. Defendant has argued throughout this litigation that, to the 

8 extent the sentencing guidelines permit the use of nonenumerated aggravating factors, 

9 they either violate the separation of powers provision of the Oregon Constitution or are 

10 vague in violation of the Oregon and the United States Constitutions. The trial court 

11 disagreed and imposed an enhanced sentence based on nonenumerated aggravating 

12 factors. The Court of Appeals affirmed the trial court's judgment without opinion. State 

13 v. Speedis, 233 Or App 297, 225 P3d 152 (2010). We allowed defendant's petition for 

14 review to consider this recurring issue and now affirm the Court of Appeals decision and 

15 the trial court's judgment.

16 As a matter of state law, three related sets of statutes govern sentencing. 

17 See State v. Dilts, 336 Or 158, 161-63, 82 P3d 593 (2003) (Dilts I) (explaining state 

sentencing statutes).

1

18 The first statute establishes maximum indeterminate sentences for 

 

1

In Dilts I, this court explained how Oregon's sentencing statutes work as a 

matter of state law and concluded that those statutes, as the court had interpreted them, 

complied with the Sixth and Fourteenth Amendments to the United States Constitution. 

The defendant in Dilts I petitioned for certiorari. The United States Supreme Court 

granted his petition, vacated this court's judgment, and remanded the case for further 

proceedings in light of its decision in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 
2

1 felonies. See ORS 161.605. That statute provides, for example, that the maximum 

2 sentence for a Class B felony is 10 years. Id. Before 1989, if a defendant was convicted 

3 of a Class B felony, the trial court was free to set the defendant's sentence anywhere 

4 within that 10-year range. The evidence that a trial court could consider in selecting the 

5 appropriate sentence within that range was broad, and the trial court had wide latitude to 

6 determine the appropriate sentence based on the seriousness of the offense and the 

7 character of the offender. See State v. Stewart/Billings, 321 Or 1, 9, 892 P2d 1013 (1995) 

8 (describing pre-1989 sentencing); State v. Scott, 237 Or 390, 399-400, 390 P2d 328

9 (1964) (identifying the seriousness of the offense and the character of the offender as the 

10 relevant criteria at sentencing).

11 That latitude sometimes led to disparate sentences for similarly situated 

12 defendants, and, in 1985, the Oregon legislature created what is now known as the 

13 Oregon Criminal Justice Commission to develop recommendations for providing greater 

14 uniformity in sentencing. Dilts I, 336 Or at 161. In 1989, the commission adopted rules 

15 (sentencing guidelines) that set presumptive sentences for crimes based on the general 

seriousness of the offense and the specific offender's criminal history. Id. at 161-62.216 

________________________

159 L Ed 2d 403 (2004). Dilts v. Oregon, 542 US 934, 124 S Ct 2906, 159 L Ed 2d 809 

(2004). Following Blakely, this court held on remand that the Sixth and Fourteenth 

Amendments gave defendants the right to have a jury find aggravating sentencing factors 

beyond a reasonable doubt. State v. Dilts, 337 Or 645, 652, 103 P3d 95 (2004) (Dilts II). 

Even though this court's understanding of federal law in Dilts I is no longer valid in light 

of Blakely, see Dilts II, 337 Or at 652, this court's explanation in Dilts I of how Oregon's 

sentencing statutes work as a matter of state law remains good law. 

2 Although the commission adopted the sentencing guidelines as rules, the 

legislature later enacted the sentencing guidelines as statutes. Dilts I, 336 Or at 162.
3

1 The presumptive sentence for each crime falls within the range set by the maximum 

indeterminate sentence for that crime.32 For example, the maximum indeterminate 

3 sentence for second-degree assault (one of the crimes for which defendant was convicted) 

4 is 10 years. ORS 161.605(2). The sentencing guidelines provide that, for a person with 

5 defendant's criminal history, the presumptive sentence for that crime is 37 to 38 months. 

6 See OAR 213-004-0001 (App 1).

7 The presumptive sentence sets a target sentence within the range that the 

8 indeterminate sentencing statutes permit, and trial courts retain "'discretion to deviate 

9 [from the presumptive sentence] for substantial and compelling reasons.'" Dilts I, 336 Or 

10 at 172 (emphasis omitted; quoting OAR 213-002-0001(2)). That is, although the 

11 guidelines start from the premise that the presumptive sentence ordinarily will be the 

12 appropriate sentence, they recognize that the two factors that go into the presumptive 

13 sentence -- the general seriousness of the offense and the specific offender's criminal 

14 history -- may not always capture either the seriousness of a particular offense or all the 

15 relevant aspects of an offender's character. See Oregon Criminal Justice Council, Oregon 

16 Sentencing Guidelines Implementation Manual 123-25 (1989) (so stating). Accordingly, 

17 the guidelines list nine mitigating and 12 aggravating factors that will justify imposing 

18 either a lesser or a greater sentence than the presumptive sentence. OAR 213-008-

 

3

For some crimes, the Oregon statutes also provide mandatory minimum 

sentences. See, e.g., ORS 137.700 (setting mandatory minimum sentences for certain 

crimes). When a court imposes a mandatory minimum sentence, that sentence sets the 

floor below which the presumptive sentence may not go. See State ex rel Huddleston v. 

Sawyer, 324 Or 597, 603-04, 932 P2d 1145 (1997) (explaining the relationship between 

mandatory minimum sentences and presumptive sentences).
4

1 0002(1).

2 Some of those mitigating and aggravating factors go to the seriousness of 

3 the offense. For example, if the harm or loss attributable to a particular offense is either 

4 significantly less or significantly greater than is typical, the guidelines permit a court to 

5 impose either a downward or an upward departure sentence. See OAR 213-008-

6 0002(1)(a)(G) (downward departure); OAR 213-008-0002(1)(b)(J) (upward departure). 

7 Other factors go to the character or culpability of the specific offender. For example, if a

8 defendant acted with a diminished mental capacity, a court may impose a lesser sentence. 

9 OAR 213-008-0002(1)(a)(C). Conversely, if a defendant has been "[p]ersistent[ly] 

10 involv[ed] in similar offenses or repetitive assaults," a court may impose a greater 

11 sentence than the presumptive sentence. OAR 213-008-0002(1)(b)(D). The guidelines 

12 recognize that, in that case, a more severe sentence may be necessary both to deter the 

13 defendant and to protect society.

14 Finally, the guidelines provide that the list of specific mitigating and 

15 aggravating factors is "nonexclusive." OAR 213-008-0002(1). That is, the guidelines 

16 recognize that case-specific factors may arise in individual cases that bear on either the 

17 seriousness of the offense or the character of the offender that the Criminal Justice 

18 Commission did not anticipate. The guidelines accordingly permit trial courts to consider 

19 whether nonenumerated, case-specific mitigating or aggravating factors exist that provide 

20 a substantial and compelling reason for imposing either a downward or an upward 

21 departure sentence. See id.

22 In 2005, the legislature enacted a third set of statutes that establish 
5

1 procedures for determining whether, in a particular case, an aggravating factor exists that 

2 will warrant an enhanced sentence. See ORS 136.760 to 136.792. Under that law, the 

3 prosecutor must identify any aggravating factor (enumerated or nonenumerated) that 

4 provides a basis for seeking an upward departure sentence and give the defendant 

5 reasonable written notice of that factor. See ORS 136.765. The defendant may elect to 

6 have a jury find whether that factor is present. See ORS 136.770 (governing aggravating 

7 factors that "relat[e] to an offense charged in the accusatory instrument"); ORS 136.773 

(governing aggravating factors that "relat[e] to the defendant").48 If the trier of fact finds 

9 beyond a reasonable doubt that an aggravating factor that the prosecutor has identified 

10 exists, then the trial court may enhance a defendant's sentence if it concludes that that 

11 aggravating factor provides a substantial and compelling reason for doing so. See State v. 

12 Upton, 339 Or 673, 679, 125 P3d 713 (2005).

13 In this case, the jury convicted defendant of three crimes: first-degree 

14 burglary, second-degree assault, and third-degree assault. Before the jury returned its 

15 verdict, the prosecutor notified defendant that, in the state's view, eight aggravating 

16 factors applied in this case. Of those eight aggravating factors, the jury was ultimately 

17 asked to determine whether four of them were present: (1) defendant was on supervision 

18 when he committed the current crimes; (2) prior criminal justice sanctions had failed to 

19 deter defendant from committing crimes; (3) defendant committed this crime while on 

 

4 Whether an aggravating factor relates to the offense or the offender affects 

whether the factor may be tried in the guilt phase of the trial or in a separate sentencing 

phase. ORS 136.770(1); ORS 136.773(1). 
6

1 release status with other criminal charges pending; and (4) defendant had demonstrated a 

2 disregard for laws and rules, making successful probation unlikely. Each of those factors 

3 is a nonenumerated aggravating factor.

4 After considering additional evidence at a separate sentencing hearing, the 

5 jury found that the state had proved beyond a reasonable doubt each of those four 

6 aggravating factors. The trial court then determined that each aggravating factor, 

7 standing alone, provided a substantial and compelling reason for imposing enhanced 

8 sentences on defendant's convictions for first-degree burglary and second-degree assault. 

9 The trial court sentenced defendant to 72 months in prison rather than the presumptive 

10 sentence of 37 to 38 months on the second-degree assault conviction. It also sentenced 

11 him to 72 months in prison rather than the presumptive sentence of 37 to 38 months on 

12 the first-degree burglary conviction and ordered that those sentences would run 

concurrently.513 The court did not impose a sentence on defendant's conviction for third14 degree assault but ruled that defendant's sentence for that offense merged into his 

sentence for second-degree assault.615

16 Throughout this litigation, defendant has argued that a trial court may not 

 

5 Because second-degree assault is a Measure 11 crime, the court imposed a 

70-month mandatory minimum sentence on that conviction. See ORS 137.700(2)(a)(G). 

Because of that mandatory minimum sentence and the trial court's decision that the 

sentences on the burglary and second-degree assault convictions would run concurrently, 

the net effect of imposing upward departure sentences in this case is that defendant's 

sentence is two months longer than it otherwise would have been.

6 Defendant does not argue that merging the sentences, as opposed to 

merging the convictions for second- and third-degree assault, is inconsistent with State v. 

White, 341 Or 624, 147 P3d 313 (2006), and we do not address that issue.
7

1 rely on nonenumerated aggravating factors to impose an enhanced sentence. Doing so, 

2 he reasons, violates the separation of powers provision of the Oregon Constitution. See 

3 Or Const Art III, § 1 (allocating governmental power among the legislative, executive, 

4 and judicial departments). Additionally, defendant contends that, to the extent the 

5 sentencing guidelines permit prosecutors to base a request for an enhanced sentence on 

6 nonenumerated aggravating factors, the guidelines are vague in violation of Article I, 

7 sections 20 and 21, of the Oregon Constitution and the Due Process Clause of the United 

8 States Constitution. We begin with defendant's separation of powers argument.

9 Article III, section 1, of the Oregon Constitution provides:

10 "The powers of the Government shall be divided into three seperate [sic] 

11 departments, the Legislative, the Executive, including the administrative, 

12 and the Judicial; and no person charged with official duties under one of 

13 these departments shall exercise any of the functions of another, except as 

14 in this Constitution expressly provided."

15 A separation of powers claim under this section may turn on one of two issues. 

16 MacPherson v. DAS, 340 Or 117, 134, 130 P3d 308 (2006). The first issue is "whether 

17 one department of government has 'unduly burdened' the actions of another department" 

18 in carrying out its core functions. Id. The second issue is "whether one department has 

19 performed functions that the constitution commits to another department." Id. Defendant 

20 does not contend that, in relying on nonenumerated aggravating factors, the judiciary has 

21 unduly burdened the legislature's ability to carry out its core functions. Rather, defendant 

22 argues that, in determining whether nonenumerated aggravating factors provide 

23 substantial and compelling reasons for imposing an enhanced sentence, the judiciary is 

24 exercising a power that the constitution has entrusted to the legislature.
8

1 Defendant's argument fails to distinguish two related but separate lines of 

2 authority. This court has recognized that "[d]etermining the range of possible sentences 

3 for particular crimes historically has been a legislative, rather than a judicial, function." 

4 State ex rel Huddleston v. Sawyer, 324 Or 597, 615, 932 P2d 1145 (1997). Consistently 

5 with that principle, the court has explained that, "[w]hen a court acts beyond the bounds 

6 of its sentencing authority, it infringes upon the power of the legislature to determine the 

7 manner of punishment." State v. Leathers, 271 Or 236, 240, 531 P2d 901 (1975). 

8 Conversely, this court has recognized that determining where within a legislatively 

9 prescribed range a particular defendant's sentence falls historically has been a judicial 

10 function. See Stewart/Billings, 321 Or at 9 (explaining that sentencing courts 

11 traditionally have considered a range of case-specific factors that bear on both the offense 

12 and the offender in determining the appropriate sentence within legislative limits); Scott, 

237 Or at 399-400 (same).

7

13

14 In relying on nonenumerated sentencing factors to decide whether to 

15 impose an upward or downward departure sentence, a trial court is not acting "beyond the 

16 bounds of its sentencing authority" and thus is not infringing on the legislature's authority 

 

7

To describe that authority solely as a judicial function is not entirely 

accurate. Historically, prosecutors identified and submitted the facts at a sentencing 

hearing that the trial courts then considered in deciding whether the seriousness of the 

offense and the character of the offender warranted a greater or lesser sentence within the 

range permitted by sentencing statutes. See Scott, 237 Or at 396-97 (discussing practice 

under the Deady Code). A prosecutor's ability (discussed above) to identify the 

aggravating factors that may result in an enhanced sentence is consistent with that 

historical allocation of authority. Cf. Huddleston, 324 Or at 616 (explaining that a 

prosecutor's ability to charge crimes carrying a mandatory minimum sentence did not 

violate separation of powers principles).
9

1 to set sentencing limits. Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits 

2 that the legislature has set, Dilts I, 336 Or at 171, and it is exercising a trial court's 

3 traditional authority to determine, within statutory limits, the specific facts and 

4 circumstances that will result in a sentence designed to fit both the offense and the 

5 offender. If trial courts historically had broad discretion to determine the appropriate 

6 sentence within the wide range that indeterminate sentencing statutes permitted, it is 

7 difficult to see why a trial court's exercise of that same discretion within the narrower 

8 range that the sentencing guidelines permit constitutes an unconstitutional exercise of 

legislative authority.89

10 Defendant's contrary argument, as we understand it, rests on the assumption

11 that a presumptive sentence establishes, as a matter of state law, the maximum sentence 

12 that a trial court can impose. It follows, defendant contends, that a trial court may not 

13 depart from a presumptive sentence unless the legislature either has specified the terms 

14 on which a court may depart or has delegated the authority to trial courts to identify those 

15 terms. And defendant focuses the majority of his separation of powers argument on the 

16 claim that, in authorizing the use of nonenumerated sentencing factors, the legislature has 

17 failed to provide a constitutionally sufficient delegative standard.

18 One problem with defendant's separation of powers argument is the 

19 assumption that underlies it. As this court explained in Dilts I, the legislature did not 

20 intend that presumptive sentences would mark the outer limits of a trial court's sentencing 

 

8 As our reasoning makes clear, our resolution of defendant's separation of 

powers argument focuses on and is limited to sentencing issues. 
10

1 authority. 336 Or at 171. Rather, the court held that, as a matter of state law,

2 "neither the wording nor the structure of the sentencing guidelines or the 

3 related statutes support [the] defendant's assertion that the legislature 

4 intended the presumptive sentences in the sentencing guidelines to 

5 constitute the statutory maximum sentences for the offenses to which they 

6 apply."

Id.97 Not only does a presumptive sentence not define the outer boundaries of a trial 

8 court's sentencing authority, as defendant's argument assumes, but the sentencing 

9 guidelines expressly authorize trial courts to decide whether nonenumerated aggravating 

10 and mitigating factors warrant imposing a greater or a lesser sentence than a presumptive 

11 sentence. Id. at 175-76. In imposing a departure sentence based on nonenumerated 

12 aggravating factors, a trial court is not acting beyond the bounds of its sentencing 

13 authority * * *." Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits that 

14 the legislature has set. See Dilts I, 336 Or at 171, 175. Defendant's separation of powers 

15 argument provides no reason for holding the trial court's use of nonenumerated 

16 sentencing factors unconstitutional.

17 Defendant argues alternatively that, to the extent the guidelines permit 

18 reliance on nonenumerated aggravating factors in deciding whether to impose an 

19 enhanced sentence, the guidelines are vague in violation of Article I, sections 20 and 21, 

20 of the Oregon Constitution and the Due Process Clause of the Fourteenth Amendment. 

 

9 We recognize, of course, that, under Blakely, a presumptive sentence is a 

maximum sentence for purposes of the Sixth and Fourteenth Amendment. See Dilts II, 

337 Or at 652. A presumptive sentence, however, is not a maximum sentence for the 

purposes of state law; that is, for the purposes of analyzing defendant's state 

constitutional separation of powers argument, a presumptive sentence does not set the 

outer boundary beyond which a trial court may not go. See Dilts I, 336 Or at 171.
11

1 Specifically, defendant argues that nonenumerated aggravating factors: (1) do not 

2 provide fair notice to defendants of the circumstances that will result in a greater 

3 sentence, and (2) give prosecutors unfettered discretion to decide, after the fact, the 

4 circumstances that will result in a greater sentence.

5 Before turning to defendant's arguments, it is helpful to put them in context. 

6 The jury found beyond a reasonable doubt that each of the four nonenumerated 

7 aggravating factors that the prosecutor had identified was present, and defendant does not 

8 contend that the record does not support the jury's findings. Nor does defendant 

9 challenge the trial court's conclusion that each of those factors, standing alone, provided a 

substantial and compelling reason to impose an enhanced sentence.10 10 Finally, defendant 

11 does not dispute that, before he committed the crimes that resulted in his burglary and 

12 assault convictions, the Oregon Court of Appeals had recognized that each of the four 

13 nonenumerated aggravating factors that the prosecutor identified in this case provided a 

14 basis for imposing an enhanced sentence; that is, even though the sentencing guidelines 

15 do not specifically list those four factors, the Court of Appeals had recognized before 

16 defendant committed the burglary and assaults that each factor was an aggravating factor 

within the meaning of the guidelines.11 17

 

10 Such an argument would be difficult to make. Each of the four aggravating 

factors on which the state relied in this case concerns a defendant's character or status. 

Each factor concerns, in one way or another, whether current or prior judicial sanctions 

have failed to deter defendant from continuing to commit crimes and, if they have failed, 

whether an enhanced sentence is appropriate. 

11 See State v. Williams, 133 Or App 191, 195 n 2, 891 P2d 3, rev den, 321 Or 

512 (1995) (crime committed while the defendant was on supervision); State v. Nelson, 
12

1 With that background in mind, we turn to defendant's argument that the 

2 sentencing guidelines are vague in violation of Article I, sections 20 and 21, because they 

3 do not give defendants "fair notice" of the circumstances that will result in an enhanced 

4 sentence. We note, at the outset, that this court's cases have not always looked in the 

5 same direction on the question whether "fair notice" is a component of a state 

6 constitutional vagueness analysis. In State v. Graves, 299 Or 189, 197, 700 P2d 244 

7 (1985), the court held that the statute prohibiting first-degree burglary was vague in 

8 violation of Article I, sections 20 and 21, of the Oregon Constitution because it failed to 

9 give defendants fair notice of the conduct that it prohibited. Later, in State v. Chakerian, 

10 325 Or 370, 382-84, 938 P2d 756 (1997), the court reaffirmed that fair notice of the 

11 elements of a crime is a state constitutional vagueness concern, although the court did not 

12 find the statute in that case unconstitutionally vague.

13 More recently, however, the court explained in Delgado v. Souders, 334 Or 

14 122, 144 n 12, 46 P3d 729 (2002), that, in referring to fair notice in Graves, the court had 

15 incorrectly imported federal due process concerns into state constitutional vagueness 

16 analysis. And the court's holding expressly rested on the proposition that "fair notice" is 

17 not an aspect of vagueness analysis under Article I, section 20, of the Oregon 

Constitution. Id. at 146-47.

12 18 Later, the court reaffirmed in State v. Illig-Renn, 341 Or 

________________________

119 Or App 84, 86-87, 849 P2d 1147 (1993) (on release with other criminal charges 

pending); State v. Zavala-Ramos, 116 Or App 220, 223, 840 P2d 1314 (1992) (disregard 

for laws and rules, making successful probation unlikely); State v. Hill, 112 Or App 213, 

214, 827 P2d 951 (1992) (prior criminal judicial sanctions failed to deter).

12 Because the defendant in Delgado claimed that a civil statute was vague, 
13

1 228, 239 n 4, 142 P3d 62 (2006), that "[t]he 'fair notice' component of the vagueness 

2 analysis is not an issue under the Oregon Constitution."

3 Defendant argues that the discussions of fair notice in Delgado and Illig4 Renn were dicta and that we should follow the holding in Graves rather than the dicta in

5 those cases. We read Delgado and Illig-Renn differently. In each case, the court's 

6 holding turned on the conclusion that "fair notice" is not an aspect of a state 

7 constitutional vagueness analysis; specifically, in each case, the court declined to analyze 

8 the defendant's state constitutional vagueness claim to determine whether the challenged 

9 statutes provided fair notice of the conduct that they prohibited. Illig-Renn, 341 Or at 

10 239-40; Delgado, 334 Or at 146-47. Rather, the only issue that the court identified as 

11 encompassed within a state constitutional vagueness claim was whether a statute or rule 

12 gave the police, the prosecutor, or the court either "uncontrolled discretion" or "unbridled 

13 discretion * * * to decide what is prohibited in a given case." Illig-Renn, 341 Or at 239 

14 (quoting Graves, 299 Or at 195). Contrary to defendant's argument, we cannot dismiss 

the reasoning in Delgado and Illig-Renn as dicta.

13 15 It follows that, in deciding 

16 defendant's state constitutional vagueness claim in this case, we consider only whether 

________________________

only Article I, section 20 applied. 334 Or at 145. That case did not require the court to 

decide whether the statute was vague in violation of the ex post facto clause of Article I, 

section 21, which applies only to criminal statutes. Id.

13 Defendant has not argued that Delgado and lllig-Renn should be overruled 

because they were "wrongly considered or wrongly decided." See Stranahan v. Fred 

Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000) (explaining when this court will consider 

overruling a state constitutional holding). Accordingly, we leave for another day whether 

those cases correctly held that "fair notice" is not a component of a state constitutional 

vagueness analysis.
14

1 the sentencing guidelines provide an ascertainable standard that guided the prosecutor in 

2 identifying which nonenumerated sentencing factors warranted imposition of a departure 

3 sentence. See Illig-Renn, 341 Or at 240 (identifying that standard).

4 We refer to the prosecutor's exercise of discretion because, once the 

5 prosecutor notified defendant of the specific aggravating facts on which the state intended 

6 to rely, the jury and the trial court had a limited role to play. The question for the jury 

7 was whether the state had proved beyond a reasonable doubt the specific aggravating 

8 factors that the prosecutor had identified. Once the jury found that the state had proved 

9 those factors, then the question for the trial court was whether those factors, individually 

10 or collectively, provided a substantial and compelling reason for imposing an upward 

11 departure sentence. The trial court had no discretion to decide whether other aggravating 

12 factors (either enumerated or nonenumerated) might apply. See ORS 136.765 (providing 

13 that only the aggravating factors of which the prosecutor has provided notice to the 

14 defendant may be used to enhance a sentence).

15 To be sure, in deciding whether the aggravating factors that the jury found 

16 provided a substantial and compelling reason for imposing an enhanced sentence, the trial 

17 court exercised a limited measure of discretion. See Upton, 339 Or at 680 (explaining 

18 that, "even if the jury finds that an aggravating or enhancing factor was proved, the court 

19 is not required to order a sentencing departure based on that finding"). But we do not 

20 understand defendant to argue that that exercise of discretion injected an element of 

21 vagueness into the exercise. Rather, as we understand defendant's argument, he contends 

22 that the sentencing guidelines are vague in violation of the state constitution because they 
15

1 do not sufficiently limit the prosecutor's discretion to identify, in the first instance, the 

2 nonenumerated aggravating circumstances that can result in an enhanced sentence. We 

3 turn to that issue.

4 More than 50 years ago, this court rejected a vagueness challenge to an 

5 indeterminate sentencing statute. Smallman v. Gladden, 206 Or 262, 276-77, 291 P2d 

6 749 (1956). As explained above, indeterminate sentencing statutes gave trial courts 

7 broad discretion to sentence defendants within a wide statutory range (in Oregon, 

8 anywhere within a 10-year range for Class B felonies and within a 20-year range for 

9 Class A felonies). Although Oregon's indeterminate sentencing statutes did not 

10 specifically identify any criteria to guide a trial court's exercise of its discretion, this 

11 court's cases made clear that two criteria applied: the seriousness of the offense and the 

12 character or status of the offender. See, e.g., State v. Biles, 287 Or 63, 72, 597 P2d 808 

13 (1979); Scott, 237 Or at 399-400.

14 As explained above, the sentencing guidelines incorporate those same 

15 criteria. Not only is the presumptive sentence a product of the seriousness of the offense 

16 and the offender's criminal history (one indicator of an offender's character), but the 

17 enumerated aggravating and mitigating factors are further specifications of those two 

18 criteria. It follows, we think, that those same criteria provide guidance for prosecutors 

19 and courts in determining which nonenumerated aggravating or mitigating factors will 

20 warrant a departure sentence. Cf. State v. Kurtz, 350 Or 65, 74, 249 P3d 1271 (2011) 

21 (explaining that, when a general term is accompanied by a "nonexclusive list of 

22 examples," the specific examples shed light on the meaning of the general term).
16

1 Put differently, the same criteria that informed a sentencing court's exercise 

2 of its discretion under the indeterminate sentencing statutes apply with equal force to the 

3 identification of nonenumerated aggravating and mitigating factors under the sentencing 

4 guidelines. If those criteria were sufficient to defeat a vagueness challenge to 

5 indeterminate sentencing statutes, we cannot say that those same criteria are not a 

6 sufficient check on the prosecutor's discretion to identify nonenumerated aggravating 

7 factors. That is particularly true since the sentencing guidelines place further limitations 

8 on the exercise of sentencing discretion. They require that any nonenumerated factor 

9 provide substantial and compelling reasons for imposing a departure sentence, OAR 213-

10 008-0001, and they prohibit the use of nonenumerated aggravating factors that merely 

11 duplicate elements of the offense, that are used to rank the seriousness of the crime in 

12 setting the presumptive sentence, or that are a necessary element of a mandatory 

13 sentence, OAR 213-008-0002(2) and (3). The discretion that the sentencing guidelines 

14 give prosecutors to identify and courts to determine nonenumerated aggravating factors is 

15 neither standardless nor unfettered. That aspect of the sentencing guidelines is not vague 

in violation of Article I, sections 20 and 21, of the Oregon Constitution,

14 16 and we turn to 

17 defendant's federal vagueness argument.

 

14 Our state constitutional vagueness holding is limited to sentencing and, 

within that context, to sentencing factors that bear on a defendant's character. We have 

no occasion to consider whether greater specificity would be required either for a statute 

defining the elements of an offense or for sentencing factors that relate to the offense 

rather than the offender. Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) 

(distinguishing, for the purpose of Article I, section 11, between sentencing factors that 

relate to the offense and those that relate to a defendant's character or status), rev'd on 

other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009).
17

1 Under the Due Process Clause of the Fourteenth Amendment, a criminal 

2 statute will be unconstitutionally vague if it fails to provide "fair warning" of the acts that 

3 will expose a person to criminal penalties; that is, a statute must "give [a] person of 

4 ordinary intelligence a reasonable opportunity to know what is prohibited so that he [or 

5 she] may act accordingly." Illig-Renn, 341 Or at 241 (quoting Grayned v. City of 

6 Rockford, 408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (1972)). As the United States 

7 Supreme Court has explained, however, even if an "otherwise uncertain statute," standing 

8 alone, would fail to provide constitutionally adequate notice of the acts that expose a 

9 person to criminal liability, the statute will satisfy due process if "[a] prior judicial 

10 decision has fairly disclosed [the charged conduct] to be within [the statute's] scope." 

11 United States v. Lanier, 520 US 259, 266, 117 S Ct 1219, 137 L Ed 2d 432 (1997); 

12 accord Rogers v. Tennessee, 532 US 451, 459, 121 S Ct 1693, 149 L Ed 2d 697 (2001) 

13 (acknowledging that rule).

14 As explained above, before defendant committed the crimes that gave rise 

15 to his burglary and assault convictions, the Court of Appeals had identified each of the 

16 four nonenumerated aggravating factors at issue in this case as permissible grounds for 

17 imposing an enhanced sentence under the sentencing guidelines. Even if the sentencing 

18 guidelines, standing alone, would not provide sufficient notice that those factors would 

19 justify an enhanced sentence, those appellate decisions did and, in doing so, satisfied due 

process. See Lanier, 520 US at 266.15 20 If those cases provided sufficient notice to 

 

15 The Court held in Lanier that a decision need not be from a court of last 

resort to provide fair notice; an intermediate appellate decision will suffice. 520 US at 
18

1 defendants under the Due Process Clause, we think that they also provided sufficient 

2 guidance to prosecutors in identifying those aggravating factors that would support the 

imposition of an enhanced sentence.16 3 The trial court and the Court of Appeals correctly 

4 rejected defendant's state and federal constitutional challenges to the use of 

5 nonenumerated aggravating factors.

6 The decision of the Court of Appeals and the judgment of the circuit court 

7 are affirmed.

________________________

268-69.

16 It may be that the prior Court of Appeals decisions recognizing specific 

nonenumerated aggravating factors would be a complete answer to defendant's state 

vagueness claims, as well as to his federal vagueness claims. However, having resolved 

defendant's state vagueness claims on different grounds, we need not decide that issue.