2011 ORS § 420A.203¹
Eligibility for second look
- • report to sentencing court
- • hearing
- • disposition
(1)(a) This section and ORS 420A.206 (Conditional release) apply only to persons who were under 18 years of age at the time of the commission of the offense for which the persons were sentenced to a term of imprisonment, who committed the offense on or after June 30, 1995, and who were:
(A) Sentenced to a term of imprisonment of at least 24 months following waiver under ORS 419C.349 (Grounds for waiving youth to adult court), 419C.352 (Grounds for waiving youth under 15 years of age), 419C.364 (Waiver of future cases) or 419C.370 (Waiver of motor vehicle, boating, game, violation and property cases); or
(B) Sentenced to a term of imprisonment of at least 24 months under ORS 137.707 (Adult prosecution of 15-, 16- or 17-year-old offenders) (5)(b)(A) or (7)(b).
(b) When a person described in paragraph (a) of this subsection has served one-half of the sentence imposed, the sentencing court shall determine what further commitment or disposition is appropriate as provided in this section. As used in this subsection and subsection (2) of this section, sentence imposed means the total period of mandatory incarceration imposed for all convictions resulting from a single prosecution or criminal proceeding not including any reduction in the sentence under ORS 421.121 (Reduction in term of incarceration) or any other statute.
(2)(a) No more than 120 days and not less than 60 days before the date on which a person has served one-half of the sentence imposed, the Oregon Youth Authority or the Department of Corrections, whichever has physical custody of the person, shall file in the sentencing court a notice and request that the court set a time and place for the hearing required under this section. The youth authority or department shall serve the person with a copy of the notice and request for hearing on or before the date of filing.
(b) Upon receiving the notice and request for a hearing under paragraph (a) of this subsection, the sentencing court shall schedule a hearing for a date not more than 30 days after the date on which the person will have served one-half of the sentence imposed or such later date as is agreed upon by the parties.
(c) The court shall notify the following of the time and place of the hearing:
(A) The person and the persons parents;
(B) The records supervisor of the correctional institution in which the person is incarcerated; and
(C) The district attorney who prosecuted the case.
(d) The court shall make reasonable efforts to notify the following of the time and place of the hearing:
(A) The victim and the victims parents or legal guardian; and
(B) Any other person who has filed a written request with the court to be notified of any hearing concerning the transfer, discharge or release of the person.
(3) In a hearing under this section:
(a) The person and the state are parties to the proceeding.
(b) The person has the right to appear with counsel. If the person requests that the court appoint counsel and the court determines that the person is financially eligible for appointed counsel at state expense, the court shall order that counsel be appointed.
(c) The district attorney represents the state.
(d) The court shall determine admissibility of evidence as if the hearing were a sentencing proceeding.
(e) The court may consider, when relevant, written reports of the Oregon Youth Authority, the Department of Corrections and qualified experts, in addition to the testimony of witnesses. Within a reasonable time before the hearing, as determined by the court, the person must be given the opportunity to examine all reports and other documents concerning the person that the state, the Oregon Youth Authority or the Department of Corrections intends to submit for consideration by the court at the hearing.
(f) Except as otherwise provided by law or by order of the court based on good cause, the person must be given access to the records maintained in the persons case by the Oregon Youth Authority and the Department of Corrections.
(g) The person may examine all of the witnesses called by the state, may subpoena and call witnesses to testify on the persons behalf and may present evidence and argument. The court may permit witnesses to appear by telephone or other two-way electronic communication device.
(h) The hearing must be recorded.
(i) The hearing and the record of the hearing are open to the public.
(j) The question to be decided is which of the dispositions provided in subsection (4) of this section should be ordered in the case.
(k) The person has the burden of proving by clear and convincing evidence that the person has been rehabilitated and reformed, and if conditionally released, the person would not be a threat to the safety of the victim, the victims family or the community and that the person would comply with the release conditions.
(4)(a) At the conclusion of the hearing and after considering and making findings regarding each of the factors in paragraph (b) of this subsection, the court shall order one of the following dispositions:
(A) Order that the person serve the entire remainder of the sentence of imprisonment imposed, taking into account any reduction in the sentence under ORS 421.121 (Reduction in term of incarceration) or any other statute, with the persons physical custody determined under ORS 137.124 (Commitment of defendant to Department of Corrections or county), 420.011 (Admissions to youth correction facilities) and 420A.200 (Duration of custody of Oregon Youth Authority).
(B) Order that the person be conditionally released under ORS 420A.206 (Conditional release) at such time as the court may order, if the court finds that the person:
(i) Has been rehabilitated and reformed;
(ii) Is not a threat to the safety of the victim, the victims family or the community; and
(iii) Will comply with the conditions of release.
(b) In making the determination under this section, the court shall consider:
(A) The experiences and character of the person before and after commitment to the Oregon Youth Authority or the Department of Corrections;
(B) The persons juvenile and criminal records;
(C) The persons mental, emotional and physical health;
(D) The gravity of the loss, damage or injury caused or attempted, during or as part of the criminal act for which the person was convicted and sentenced;
(E) The manner in which the person committed the criminal act for which the person was convicted and sentenced;
(F) The persons efforts, participation and progress in rehabilitation programs since the persons conviction;
(G) The results of any mental health or substance abuse treatment;
(H) Whether the person demonstrates accountability and responsibility for past and future conduct;
(I) Whether the person has made and will continue to make restitution to the victim and the community;
(J) Whether the person will comply with and benefit from all conditions that will be imposed if the person is conditionally released;
(K) The safety of the victim, the victims family and the community;
(L) The recommendations of the district attorney, the Oregon Youth Authority and the Department of Corrections; and
(M) Any other relevant factors or circumstances raised by the state, the Oregon Youth Authority, the Department of Corrections or the person.
(5) The court shall provide copies of its disposition order under subsection (4) of this section to the parties, to the records supervisor of the correctional institution in which the person is incarcerated and to the manager of the institution-based records office of the Department of Corrections.
(6) The person or the state may appeal an order entered under this section. On appeal, the appellate courts review is limited to claims that:
(a) The disposition is not authorized under this section;
(b) The court failed to comply with the requirements of this section in imposing the disposition; or
(c) The findings of the court are not supported by substantial evidence in the record. [1995 c.422 §53; 1997 c.727 §15; 2001 c.962 §99]