State v. Brewer

In order to justify the imposition of a downward departure sentence, ORS 137.712(2)(d)(B) requires a defendant to prove that representation of being armed with a dangerous weapon did not reasonably put the victim in fear of imminent significant physical injury.

Defendant appealed her imposed sentence for second-degree robbery. Defendant robbed a bank teller at knifepoint and was arrested based on video evidence. Defendant pled guilty to the second-degree robbery charge. Defendant argued she was eligible for a downward departure sentence under ORS 137.712(2)(d)(B) because the bank teller’s fear was not objectively reasonable. The trial court found the Defendant ineligible for a downward departure and imposed a 70 month sentence. Defendant appealed her sentence on the basis that the court’s decision was not supported by the facts. The Court determined they had jurisdiction to hear this case under ORS 138.222(7), which allows a defendant to appeal a sentence subsequent to a guilty plea as long as a colorable claim of error is shown. The Court concluded that the trial court erred in applying the statute by not determining whether the teller’s fear was reasonable. However, the error was harmless because the sentencing court decided not to depart for other substantial and compelling reasons. Affirmed.