State v. Berger

"ORS 137.750 requires a sentencing court to order that a defendant may be considered for release, leave and certain sentencing programs for which the defendant is otherwise eligible unless the court makes a finding on the record that substantial and compelling reasons exist that warrant a contrary result."

Defendant appealed a judgment of conviction for three counts of sexual abuse in the second degree, assigning error to the trial court’s ruling that he was ineligible for any “reduction in sentence” on any count, including a reduction under ORS 421.121. Defendant argued that the trial court did not have the authority under ORS 137.750 to make Defendant ineligible for a "reduction in sentence." "ORS 137.750 requires a sentencing court to order that a defendant may be considered for release, leave and certain sentencing programs for which the defendant is otherwise eligible unless the court makes a finding on the record that substantial and compelling reasons exist that warrant a contrary result." A reduction in the term of incarceration under ORS 421.121 for “earned time” is a sentence modification program that is affected by the trial court's determination under ORS 137.750. A reduction in a prison term based on “earned time” may only be granted by the Department of Correction pursuant to ORS 421.121 if the sentencing court specifically orders that the defendant is eligible for such a reduction pursuant to ORS 137.750. Affirmed.