Criminal Law: A trial court does not overstep its sentencing authority when it employs nonenumerated factors to enhance a defendant’s sentence because 1) the state legislature authorized courts to impose a greater prison sentence if aggravating factors existed, and 2) trial courts are guided by two criteria: the seriousness of the offense and the character status of the offender, which confine impermissible vagueness issues.

Defendant was convicted of first-degree burglary, second-degree burglary, and third-degree assault. Prior to the jury’s verdict, the prosecutor informed the defendant of nonenumerated aggravating factors that would allow for an enhanced sentence. The trial court ultimately sentenced the defendant to two 72-month sentences, beyond the normal sentencing guidelines of 37 to 38 months. Defendant appealed on two grounds: the sentencing violated the separation of powers provision of the Oregon Constitution, and the use of nonenumerated aggravating factors was unconstitutionally vague according to the Oregon Constitution and the Due Process Clause of the United States Constitution. The Supreme Court found no reason supporting the separation of powers claim, and also held that “fair notice” was not a part of the state’s constitutional vagueness test. The Court further disagreed with the vagueness claim because the trial courts use the “same criteria” in exercising discretion as they had under the indeterminate sentencing statutes to identify nonenumerated aggravating and mitigating factors as is now being done under the sentencing guidelines. Affirmed.