State v. Cross

Under ORS 137.751, a trial court is no longer required to find “substantial and compelling reasons” to deny a defendant eligibility for alternative incarceration programs and early release.

Defendant was convicted of violating his probation after evidence was presented showing defendant had tested positive in urine analysis tests, had resisted arrest, and had faked a myocardial infarction in order to avoid submitting a required urine sample. Defendant appealed the trial court’s decision, which sentenced him to 60 months in prison and 36 months with post-prison supervision. The Court denied Defendant’s eligibility for an alternative incarceration program (AIP) based on Defendant’s poor probation history. The Court held that Defendant’s appeal was based on an outdated Oregon statute (ORS 137.750) requiring a trial court to show “substantial and compelling reasons” to deny Defendant AIP eligibility. This statute was superseded in 2008 (now ORS 137.751), removing the trial court’s obligation to show “substantial and compelling reasons” to deny AIP eligibility, and shifted the burden to defendants to show that specified eligibility requirements are met, which is determined in the trial court. Affirmed.