State v. Davis

Under ORS 138.222(2), a “presumptive sentence” that is unreviewable applies only to sentences imposed under the sentencing gridlock guidelines.

Defendant appealed a judgment revoking his probationary sentence and sanctioning his probation violation with a 28-month incarceration term and 24 months of post-prison supervision. Defendant assigned error to the trial court’s reliance on ORS 137.717(1), the “repeat property offender” statute (RPO) in determining the probation violation statute, arguing that the trial court should have instead imposed the “presumptive” sentence under the sentencing gridblock that corresponds to his conviction. The State argued that Defendant’s assignment of error is unreviewable under ORS 138.222(2)(a), which, in part, prohibits appellate review of any sentence within presumptive guidelines. The State relied on OAR 213-003-0001(16), which defines a “presumptive sentence” as a sentence that either falls within a sentencing guidelines grid block or as “a sentence designated as a presumptive sentence by statute”; in this case, the RPO statute. The Court held that, however, under State v. Althouse, 359 Or 668, 676 (2016), a “presumptive sentence” refers to only to a sentence within the sentencing gridblock guidelines. However, the Court found that Defendant’s assignment of error was unpreserved, and the error was not plain. Affirmed.