State v. R-Robinson

Under OAR 213-004-0011(1), an out-of-state adult conviction may only be used to classify an offender’s criminal history where the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law.

Defendant appealed his conviction for fourth-degree assault constituting domestic violence, specifically the sentence imposed, arguing the trial court erred in using prior convictions from Colorado to calculate his criminal history score. OAR 213-004-0011(1) provides an out-of-state adult conviction may only be used to classify an offender’s criminal history where the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law. On appeal, Defendant argued the State failed to demonstrate the out-of-state convictions constituted fourth-degree assault in Oregon because the Colorado assault statute is broader and more inclusive than Oregon’s assault statute. Where the out-of-state statute is broader than Oregon’s statute, the State must demonstrate by accusation instrument and the judgment that the defendant’s conviction in fact matched Oregon’s statute. State v. Provencio, 153 Or App 90 (1998). The State conceded the Colorado statutes are broader than Oregon’s statutes for misdemeanor assault and that the record was insufficient to demonstrate the elements matched ORS 163.160, and the Court accepted the State’s concession. Remanded for resentencing; otherwise affirmed.