2017 ORS 137.079¹
Presentence report
  • other writings considered in imposing sentence
  • disclosure to parties
  • court’s authority to except parts from disclosure

(1) A copy of the presentence report and all other written information concerning the defendant that the court considers in the imposition of sentence shall be made available to the district attorney, the defendant or defendant’s counsel at least five judicial days before the sentencing of the defendant. All other written information, when received by the court outside the presence of counsel, shall either be summarized by the court in a memorandum available for inspection or summarized by the court on the record before sentence is imposed.

(2) The court may except from disclosure parts of the presentence report or other written information described in subsection (1) of this section which are not relevant to a proper sentence, diagnostic opinions which might seriously disrupt a program of rehabilitation if known by the defendant, or sources of information which were obtainable with an expectation of confidentiality.

(3) If parts of the presentence report or other written information described in subsection (1) of this section are not disclosed under subsection (2) of this section, the court shall inform the parties that information has not been disclosed and shall state for the record the reasons for the court’s action. The action of the court in excepting information shall be reviewable on appeal.

(4) A defendant who is being sentenced for felonies committed prior to November 1, 1989, may file a written motion to correct the criminal history contained in the presentence report prior to the date of sentencing. At sentencing, the court shall consider defendant’s motion to correct the presentence report and shall correct any factual errors in the criminal history contained in that report. An order allowing or denying a motion made pursuant to this subsection shall not be reviewable on appeal. If corrections are made by the court, only corrected copies of the report shall be provided to individuals or agencies pursuant to ORS 137.077 (Presentence report).

(5)(a) The provisions of this subsection apply only to a defendant being sentenced for a felony committed on or after November 1, 1989.

(b) Except as otherwise provided in paragraph (c) of this subsection, the defendant’s criminal history as set forth in the presentence report shall satisfy the state’s burden of proof as to the defendant’s criminal history.

(c) Prior to the date of sentencing, the defendant shall notify the district attorney and the court in writing of any error in the criminal history as set forth in the presentence report. Except to the extent that any disputed portion is later changed by agreement of the district attorney and defendant with the approval of the court, the state shall have the burden of proving by a preponderance of evidence any disputed part of the defendant’s criminal history. The court shall allow the state reasonable time to produce evidence to meet its burden.

(d) The court shall correct any error in the criminal history as reflected in the presentence report.

(e) If corrections to the presentence report are made by the court, only corrected copies of the report shall be provided to individuals or agencies pursuant to ORS 137.077 (Presentence report).

(f) Except as provided in ORS 138.105 (Appeal by defendant) and 138.115 (Appeal by state), the court’s decision on issues relating to a defendant’s criminal history shall not be reviewable on appeal. [1973 c.836 §261; 1977 c.372 §11; 1983 c.649 §1; 1989 c.408 §2; 1989 c.790 §8; 2017 c.529 §24]

Notes of Decisions

A defendant has a constitu­tional right to a copy of that part of a presen­tence report which deals with public in­for­ma­­tion and relates to his prior crim­i­nal record. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

Appoint­ment of psychologist to assist defendant in preparing for the sen­ten­cing hearing eliminated any need for disclosure of the psychological test data underlying conclusions contained in the presen­tence report. State v. Eder, 29 Or App 375, 563 P2d 765 (1977)

Where trial court, in sen­ten­cing, considered confidential in­for­ma­­tion not contained in presen­tence report and stated that reasons for nondisclosure were that in­for­ma­­tion was “basically covered” by presen­tence report and that it was confidential, there was no basis for appellate review and resen­ten­cing was re­quired. State v. McCaffrey, 45 Or App 87, 607 P2d 777 (1980)

It was error for trial judge to deny defendant’s request for presen­tence report and only to make copy of report available in his chambers for de­fense counsel to look at. State v. Green, 49 Or App 949, 621 P2d 67 (1980)

Absent waiver, there is no acceptable alternative to strict compliance with this sec­tion, so despite fact defendant was illiterate and of limited intelligence, reading pre-sen­tence report to defendant rather than supplying him with a copy was error. State v. Carsner, 289 Or 645, 616 P2d 491 (1980)

Where state­ment of reason for court not disclosing part of presen­tence report or other written in­for­ma­­tion was not provided, remand for resen­ten­cing was re­quired. State v. Fears, 69 Or App 606, 688 P2d 88 (1984), Sup Ct review denied

It was error for trial court to classify out-of-state con­vic­­tion as felony con­vic­­tion for purposes of Sentencing Guide­lines when ele­ments of of­fense did not constitute felony or Class A misdemeanor under current Oregon law, even though of­fense was classified as felony in other state. State v. Tapp, 110 Or App 1, 821 P2d 1098 (1991)

Review of finding by sen­ten­cing court that defendant’s con­vic­­tion was counseled was decision on issue “relating to a defendant’s crim­i­nal history” and not subject to review under this sec­tion. State v. Holliday, 110 Or App 426, 824 P2d 1148 (1992), Sup Ct review denied

Sentencing guide­lines do not eliminate require­ment that if defendant disputes any part of crim­i­nal history in presen­tence investiga­tion report defendant must notify district attorney and court in writing. State v. Delgado, 111 Or App 162, 826 P2d 1014 (1992)

Nonreviewable nature of determina­tion whether crim­i­nal history exists does not preclude review under [former] ORS 138.222 of whether considera­tion of crim­i­nal history during sen­ten­cing was proper. State v. Leslie, 134 Or App 366, 895 P2d 342 (1995), Sup Ct review denied; State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

Where defendant challenges inclusion of prior juvenile adjudica­tion in crim­i­nal history, defendant may demonstrate adjudica­tion was uncounseled either by af­firm­a­tive showing defendant was not represented or by showing record is silent on matter. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

Where defendant challenges crim­i­nal history and demonstrates prior juvenile adjudica­tion was uncounseled, state must es­tab­lish juvenile and juvenile’s parents were aware of right to counsel and inten­tionally waived right. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

“Criminal history” does not include calcula­tion of crim­i­nal history score in presen­tence report. State v. Torres, 184 Or App 515, 59 P3d 47 (2002)

Where defendant challenges crim­i­nal history based on lack of counsel during prior pro­ceed­ing, unavailability of record for prior pro­ceed­ing does not allow inference that defendant was unrepresented. State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

Atty. Gen. Opinions

Authority of Board of Parole to adopt pro­ce­dures for in camera determina­tion of which ma­te­ri­als are subject to disclosure to prisoners with respect to parole determina­tions, (1978) Vol 38, p 1881

1 Legislative Counsel Committee, CHAPTER 137—Judgment and Execution; Parole and Probation by the Court, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors137.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 137, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano137.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.