State v. Kirkpatrick

“[A]n offense in another jurisdiction is only considered comparable to an Oregon felony sex crime if the two have ‘elements that are the same * * * or nearly the same.’” State v. Carlton, 361 Or 29, 43, 388 P3d 1093 (2017).

Petitioner appealed a conviction for Encouraging Child Sexual Abuse in the First Degree. Petitioner assigned error to the trial court’s determination that Petitioner was subject to the ORS 137.719 presumptive sentence for repeat sexual offenders. On appeal, Defendant argued that one of his prior convictions involving a federal offense did not qualify as “comparable” to a felony sex crime conviction under ORS 137.719(3)(b)(B). The State conceded that the federal offense was not comparable because the Oregon sex crime, ORS 163.686, required proof of an element that the federal crime did not. “[A]n offense in another jurisdiction is only considered comparable to an Oregon felony sex crime if the two have ‘elements that are the same * * * or nearly the same.’” State v. Carlton, 361 Or 29, 43, 388 P3d 1093 (2017). The Court found that the added element of ORS 163.686 prevented Defendant’s federal offense from qualifying as a comparable offense. Thus, Defendant did not have two prior qualifying sex crime convictions and ORS 137.719(3)(b)(B) was inapplicable. Remanded for resentencing; otherwise affirmed.