State v. Davidson

“Nothing in the text of OAR 213- 008-0003(2) precludes its application to departure sentences imposed under ORS 137.719(2).”

Defendant appealed a sentencing of 180 months’ incarceration and lifetime post-prison supervision for two counts of public indecency. Defendant had been previously convicted of public indecency on three occasions, two of those prior convictions and both of Defendant’s convictions were felony sex crimes. Defendant assigned error to the sentencing court for lacking the statutory authority to impose this sentence. The State asserted that the legislature could not have intended the statute in question to include an alternate sentence because it is a recidivist statute. ORS 137.719 provides that there is a presumptive sentence of life in prison without the possibility of parole for a person who has previously been convicted of two felony sex crimes. Because Defendant’s life sentence was remanded for unconstitutionality, the issue the Court faced is, when the presumptive life sentence is unconstitutional, whether the Court may impose a lesser sentence. The Court held that “nothing in the text of OAR 213-008-0003(2) precludes its application to departure sentences imposed under ORS 137.719(2).” Therefore, the trial court erred by imposing a sentence of 180-months’ imprisonment and lifetime post-prison supervision because the initial sentencing was not in conformity with the guidelines. Reversed and remanded for resentencing.