State v. Parkerson

Whether a defendant “comes within *** ORS 161.735 is a question of fact to be determined by the court upon consideration of the presentence report, the psychiatric report, the evidence in the case or any evidence produced at the presentence hearing.” State v. Nickell, 302 Or 439, 443 (1986).

Defendant was convicted for first-degree assault and received a dangerous offender sentence four months after he was convicted for other similar charges. The trial court used the psychological evaluation and presentence investigation report (PSI) from his first trial in sentencing for the second assault charge after Defendant declined to participate in new evaluations. Defendant assigns error to the trial court’s decision to admit this material, arguing that without it the record is insufficient to make the dangerous offender determination. Whether a defendant “comes within *** ORS 161.735 is a question of fact to be determined by the court upon consideration of the presentence report, the psychiatric report, the evidence in the case or any evidence produced at the presentence hearing.” State v. Nickell, 302 Or 439, 443 (1986). While Defendant claims the trial court was required to obtain a new PSI and psychological evaluation, the Court determined this argument was unsupported. In the absence of Defendant’s willingness to cooperate with new evaluations, the trial court was not prohibited from using redacted versions of evaluations that had been prepared less than a year before and thus did not err. Affirmed.