State v. Andrade

Ballot Measure 11 and ORS 137.700 convictions of first-degree rape and first-degree sodomy do not require that the court impose consecutive mandatory minimum sentences.

Defendant appealed sentencing imposed by the trial court under ORS 137.700 and Measure 11. The trial court sentenced Defendant to 100 months in prison and 20 years post-prison supervision for each first-degree sodomy conviction, and 75 months in prison and 10 years post-prison supervision for the first-degree sexual abuse conviction, to be served consecutively. At sentencing, the court stated but for the mandatory minimums imposed under ORS 137.700 and Measure 11, the court would have likely imposed a shorter sentence due to Defendant's age; however "it did not have any discretion in the sentencing procedure." Defendant argued that the trial court erred in determining that it was required to impose consecutive sentences. Although Defendant did not preserve the issue before the trial court, he argued that the error was apparent, and the court should exercise their discretion to correct it under ORAP 5.45(1). The Court held although the trial court had discretion to impose consecutive sentences, there is nothing that requires it to do so. Because the trial court's conclusion that it was required to impose consecutive sentences was a grave error, the Court exercised its discretion to correct it. Remanded for resentencing, otherwise affirmed.