State of Oregon v. Ivey Wayne Barrett; Linda Diane Barrett v. State of Oregon and Ivey Wayne Barrett, 350 Or. 390

Summary

The Oregon Supreme Court held that the state violated a crime victim's constitutional right to advance notice of and participation in the defendant's plea and sentencing proceedings. The court ruled that vacating the defendant's sentence and ordering resentencing was a permissible remedy under Article I, section 42(3)(a), of the Oregon Constitution and was not barred by the Double Jeopardy Clause or the statutory waiver provision. The court reversed and remanded for resentencing.

Holdings

1. The victim established a violation of Article I, section 42(1)(a), of the Oregon Constitution because she specifically requested advance notice of critical-stage proceedings and that request was made before the plea and sentencing hearing.
2. Vacating the defendant's sentence and conducting a resentencing hearing is a permissible remedy under Article I, section 42(3)(a), because a sentence is neither a conviction nor a juvenile adjudication protected from invalidation by Article I, section 42(2), but is instead a ruling of a court.
3. The victim did not waive the requested remedy by seeking it after former jeopardy attached because ORS 147.533(2)(a) exempts remedies that may be effectuated after disposition of the criminal proceeding, and resentencing falls within that exception.
4. The Double Jeopardy Clause does not bar vacating the defendant's sentence and conducting a resentencing hearing, even if the sentence could be increased.

Questions Presented

1. Whether the victim established a violation of her Oregon constitutional right to advance notice of and presence at critical stages of the criminal proceeding.
2. Whether vacating the defendant's sentence and conducting a resentencing hearing was a permissible remedy under Article I, section 42 of the Oregon Constitution.
3. Whether the victim waived the requested remedy under ORS 147.533 because it was sought after former jeopardy attached.
4. Whether resentencing the defendant would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

Disposition

reversed_and_remanded