State v. Hicks

A court need not apply the “shift to I” rule to consecutive sentences that are “statutorily mandated” because they are outside the scope of OAR 213-012-0020.

Defendant appealed his consecutive sentences. The Defendant was charged and pled guilty to second-degree burglary and first-degree criminal mischief. The trial court, using an upward departure, sentenced Defendant to 26 months’ imprisonment for each offense under ORS 137.717(3)(b). The trial court rejected Defendant’s argument that Defendant’s original 13 month sentences under ORS 137.717(3)(b) were “presumptive,” and, therefore, subject to the “shift-to-I” rule pursuant to the Oregon Sentencing Guidelines. Defendant appealed and the Court affirmed, holding that since ORS 137.717(3)(b) allowed the trial court to authorize a departure sentence, it is a “statutorily mandated” sentence and a “presumptive sentence.” Thus, ORS 137.717(3)(b) is outside the scope of OAR 213-012-0020, and the court did not err when it chose not to apply the “shift-to-I rule” to “statutorily mandated” sentences. Affirmed.