SC Number:
CA Number:
Case Title:
State v. Upton;
State v. Sawatzky
01:15 PM
Supreme Court
Timothy A. Sylwester, Jennifer Scott Lloyd for relator (Upton)
Jess Wm. Barton for adverse party (Upton)
Jennifer Scott Lloyd for adverse party (Sawatzky)
Gregory F. Silver for relator (Sawatzky)
Statement of Issues:
State v. Upton, S52316; State v. Sawatzky, S52332. The Oregon Supreme Court issued alternative writs of mandamus in two separate mandamus proceedings that presented mirror issues. The genesis of both mandamus proceedings lies with the United States Supreme Court in Blakely v. Washington, 542 US ___, 124 S Ct 2531, 159 L Ed 2d 403 (2004) (statutory maximum sentence is presumptive sentence that may be imposed as the result of a jury verdict, absent additional findings of fact; imposition of an exceptional sentence based on facts neither admitted by defendant nor found by the jury violates a defendant's Sixth Amendment right to jury trial).

In the Upton case, the State of Oregon (relator) indicted George Washington Upton (defendant) on six counts in Baker County Circuit Court. The indictment included allegations of persistent involvement in criminal activity and particularly vulnerable victim, both aggravating factors listed in OAR 213-008-0002(1)(b)(B) and (D), which would permit the trial court to impose an upward departure at sentencing under ORS 137.671(1) and OAR 213-008-0001. Defendant challenged inclusion of the aggravating factors in the indictment. The trial court ultimately ruled that "[d]efendant's involvement in past crimes as well as the language regarding vulnerable victim may not be submitted to the jury." The court reasoned that it had no authority under current law to submit those allegations to the jurors either at trial or in a separate sentencing proceeding because current law provides for upward departure decisions to be made by the trial court. Subsequently, the State sought a writ of mandamus to require the trial court to empanel a sentencing jury.

In the Sawatzky case, Sawatzky (relator) pleaded guilty to 21 counts. At sentencing, the trial court imposed upward departures on each count. On appeal, the Court of Appeals reversed and remanded based on the United States Supreme Court decision in Blakely. On remand, the state asked the trial court to convene a sentencing jury to decide about upward departures. The trial court granted the state's motion. Subsequently, Sawatzky sought a writ of mandamus to prevent the trial court from empaneling a sentencing jury.

On the State's petition, the Court issued an alternative writ of mandamus to the Honorable Gregory Baxter, Circuit Court Judge for Baker County. On defendant Sawatzky's petition, the Court issued an alternative writ of mandamus to the Honorable David Gernant, Circuit Court Judge for Multnomah County. In both cases, the issue is whether a trial court can convene a sentencing jury to impose an upward departure sentence.

These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court’s activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule Of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Merit Briefs

Last Revised: 06/08/2005