State v. Fernandez

A sentencing court errs in “ranking the crime seriousness classification of the current crime… when it misapplies the rules of the Oregon Criminal Justice Commission regarding the crime seriousness scale that are part of the felony sentencing guidelines.”

Defendant appealed judgment of conviction for first-degree online sexual corruption of a child and challenges the presumptive sentence imposed under the Oregon felony sentencing guidelines. Defendant raises one assignment of error arguing the sentencing court erred when it used crime seriousness category 8 to sentence him, claiming it is disproportionate to the crime and a violation of the Oregon Constitution. Under the sentencing guidelines, online sexual corruption of a child is classified in category 8 per OAR 213-017-0004(12). Defendant’s criminal history classification was H, so Defendant’s grid-block was 8-H. Defendant did not challenge the grid block at sentencing but asserted the presumptive sentence was disproportionate to the offense because “more serious” crimes were classified in crime seriousness category 6, and crimes Defendant viewed as “functionally equivalent” to his crime were at crime seriousness category 4. The State responded that Defendant’s claim of error was unreviewable under ORS 138.105(8)(a)(A). The Court reasoned the exception applies only to ranking errors based on the plain text and case law interpreting the former statute which ORS 138.105(8)(a)(A) replaced. The Court determined that a sentencing court errs in “ranking the crime seriousness classification of the current crime… when it misapplies the rules of the Oregon Criminal Justice Commission regarding the crime seriousness scale that are part of the felony sentencing guidelines.” The Court stated the sentencing court correctly applied the rules of the Oregon Criminal Justice Commission and concluded the presumptive sentence is unreviewable under ORS 138.105(8)(a)(A). Affirmed.