State v. Davidson

ORS 137.719(2) provides that a non-presumptive sentence for a sex crime that the court may depart from subsection (1) and impose a guidelines sentence for “substantial and compelling reasons.

The State appealed a decision of the Court of Appeals on remand that reversed the trial court’s resentencing of Defendant. Defendant was convicted of two counts of public indecency, and having been previously convicted with two counts of public indecency, he was sentenced under ORS 137.719(1) to the presumptive life sentence. That sentence was found unconstitutional in Davidson I. At resentencing, the trial court imposed a 180-month sentence at the State’s recommendation. On appeal, Defendant argued that because his sentence was overturned under ORS 137.719(1), that the court had to apply ORS 137.719(2). The State argued that the meaning of departure under subsection (2) permits any sentence less than the presumptive life based on the compelling reasons. ORS 137.719(2) provides that a non-presumptive sentence for a sex crime that the court may depart from subsection (1) and impose a guidelines sentence for “substantial and compelling reasons.  The Court rejected the State's argument and held that “the legislature had to have intended that sentencing courts use the felony sentencing guidelines grid block and departure rules and limitations in determining an appropriate departure sentence.” The trial court erred when it failed to apply the guideline sentence. Affirmed, and remanded for further proceedings.