State v. Worth

Pursuant to ORS 161.737(1), a dangerous offender’s determinate sentence can be considered a departure sentence which would be governed by the “400%” rule set forth for sentencing purposes in OAR 213-008-0007(3). OAR 213-012-0020(5)’s rules apply to consecutive presumptive sentences. “The ultimate result is that the “shift-to-I” and “200%” rules have no direct application to dangerous offender sentences and are implicated only derivatively if a trial court imposes a dangerous offender determinate term in excess of the guidelines presumptive sentence.”

Defendant appealed his conviction for first-degree kidnapping, first-degree sexual abuse, first-degree unlawful penetration, and second-degree assault. Defendant assigned a variety of errors to the trial court. This Court rejected all assignments of error but two that relate to sentencing, one of which is precluded from discussion based on the Court’s finding of the other. Defendant was deemed a “dangerous offender” by the jury and sentenced to a “total determinate term of incarceration [of] 594 months, and [a] total indeterminate sentence [of] 120 years.” This Court examined the “distinction between the determinate and indeterminate components of dangerous offender sentences” set forth in the OAR statutes, outlining the “shift-to-I”, “200%”, and “400%” rules. This Court determined that the Defendant’s dangerous offender determinate sentence could be considered a departure from the consecutive presumptive sentence and would therefore be governed by OAR 213-008-0007(3)’s “400%” rule. This Court further determined that the trial court erred in applying the “400%” rule adequately to Defendant’s dangerous offender sentence. Remanded for sentencing.