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National Crime Victim Law Institute

Barrett v. State, CC D110426M, SC S059423 (Or. May 27, 2011).

June 08, 2011

Defendant was charged with stalking the victim, his estranged wife.  Soon thereafter, the victim informed the prosecutor’s office that she was invoking her state constitutional rights to be notified in advance of sentencing and other critical stage hearings, and she timely completed and returned a form memorializing these requests.  The victim was told by the victim advocate that she did not need to be present for an upcoming pretrial appearance by defendant.  During this time, the prosecutor and defendant were engaging in plea negotiations, and at the scheduled pretrial hearing, defendant pleaded guilty to stalking the victim and was immediately sentenced to two years’ probation.  When the victim learned that defendant had pleaded guilty and been sentenced in her absence, she filed a claim asserting the violation of her state constitutional and statutory rights to be present and informed in advance of any critical stage proceedings, and to be heard at sentencing.  The victim requested that defendant’s sentence be set aside and that he be resentenced with notice to the victim so that she could be present at and participate in the new sentencing hearing.  The prosecutor filed a separate motion joining in the victim’s request that the court vacate defendant’s sentence and resentence him, based on violations of the victim’s rights.  At the hearing, the trial court held that the victim’s state constitutional rights to be present at and informed in advance of critical stage proceedings had been violated.  The trial court nevertheless declined to vacate defendant’s sentence and order a resentencing hearing, reasoning that the state constitution and statutes provided no remedy for the violations of the victim’s rights.  The victim filed an interlocutory appeal to the state supreme court, challenging the trial court’s order.  In response, defendant argued, inter alia, that the Double Jeopardy Clause of the Fifth Amendment barred resentencing as a remedy. 

The court held that the victim had established a violation of her constitutional rights and explained that the state constitution provides for victims to “have remedy by due course of law for violation of a right,” and that although such a remedy may include invalidating “a ruling of a court,” it could not include invalidating a “conviction” or “adjudication.”  Because the victims’ rights provisions in the constitution distinguish the word “conviction” from the term “sentence,” and because “adjudication” refers specifically to juvenile court delinquency adjudications, the court concluded that defendant’s sentencing was a “ruling of a court” that may be invalidated.  In addressing defendant’s argument that such an outcome would be illegal because jeopardy attached on the date of his plea and sentencing hearing, the court explained: “The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause.”  The court further explained that this was so, because, as the United States Supreme Court has held:  “The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.”  The court reversed the decision of the trial court, vacated defendant’s sentence, and remanded the case for resentencing.    

The victim in this case was represented by NCVLI’s partner clinic in Oregon, Oregon Crime Victims Law Center.