State v. Decleve

"[A] sentence that comports with the 'shift-to-I' rule, but violates the '200% rule, must be adjusted to comply with the latter." State v. Worth, 274 Or App 1, 26, 360 P3d 536 (2015), rev den, 359 Or 667 (2016).

Defendant appealed a trial court application of the "shift-to-I" rule for his multiple rape and delivery sentences.  Defendant assigned error to the failure to apply the 200-percent rule in OAR 213-012-0020(2)(b) after applying the shift-to-I rule.  Defendant argued that the court committed plain error by failing to hold that the crimes were part of a single criminal episode, thereby ensuring the maximum incarceration term would not exceed twice the presumptive sentence imposed for the primary offense.  In response, the State argued that the unpreserved claim was not reviewable as plain error because the two unlawful deliveries were not part of the same criminal episode of the two rapes.  "[A] sentence that comports with the 'shift-to-I' rule, but violates the '200% rule,' must be adjusted to comply with the latter." State v. Worth, 274 Or App 1, 26, 360 P3d 536 (2015), rev den, 359 Or 667 (2016).  The Court held that the sentencing failed to follow the 200-percent rule since the trial court had already applied the shift-to-I rule, so the delivery charges added another 18 months to the 168 month sentence.  Remanded for resentencing; otherwise affirmed.