State v. Orcutt

Under ORS 137.717, a trial court may impose up to the maximum presumptive prison term that would be allowed at the time of initial conviction and is not bound by the presumptive terms available at the time of a probation revocation sanction.

Defendant appealed a sentence imposed after her probation was revoked. She appealed her sentence of 34 years in prison as a probation revocation sanction, arguing that under the 2013 amendment to ORS 137.717(1), her sentence should have been reduced. Defendant was convicted before the amendment went into effect. The 2013 amendment to ORS 137.717(1) reduced the presumptive sentence for identity theft from 24 to 18 months. Under OAR 213-010-0002(2), a court is allowed to impose a sentence “up to the maximum presumptive prison term” that would have been allowed at the time of sentencing. The Court held that the “sentence imposed” language of ORS 137.717(1) applied to initial convictions and not to probation sanctions. The Court therefore held that the 2013 amendment to ORS 137.717(1) did not apply to Defendant’s probation revocation sanction, and thus the sentencing court did not err in imposing a 34-month prison sentence. Affirmed.