2017 ORS 137.090¹
Considerations in determining aggravation or mitigation

(1) In determining aggravation or mitigation, the court shall consider:

(a) Any evidence received during the proceeding;

(b) The presentence report, where one is available; and

(c) Any other evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable.

(2) In determining mitigation, the court may consider:

(a) Evidence regarding the defendant’s status as a servicemember as defined in ORS 135.881 (Definitions for ORS 135.881 to 135.901).

(b) Whether the defendant committed the crime while under duress, compulsion, direction or pressure from another person who has:

(A) Committed acts of domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), against the defendant;

(B) Committed acts of abuse as a family or household member of the defendant, as those terms are defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735), against the defendant; or

(C) Used force, intimidation, fraud or coercion to cause the defendant to engage, or attempt to engage, in a commercial sex act.

(3) When a witness is so sick or infirm as to be unable to attend, the deposition of the witness may be taken out of court at such time and place, and upon such notice to the adverse party, and before such person authorized to take depositions, as the court directs. [Amended by 1965 c.400 §1; 1973 c.836 §259; 1989 c.790 §10; 2013 c.331 §1; 2017 c.123 §1]

Notes of Decisions

Unsworn state­ments may be received by the trial court in considering sen­tence. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

Hearsay is admissible in the sen­ten­cing pro­ce­dure at least in so far as it may be included in a presen­tence report. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

The defendant does not have the right to take testimony controverting in­for­ma­­tion contained in the presen­tence report. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

Prior juvenile viola­tions and crim­i­nal con­vic­­tions obtained in pro­ceed­ings where defendant was not represented by counsel, or was not advised of his right to counsel or did not intelligently waive his right to counsel are subject to collateral attack when listed in presen­tence report. State v. Flores, 13 Or App 556, 511 P2d 414 (1973)

A trial court’s refusal to consider a presen­tence report before the imposi­tion of sen­tence does not constitute a denial of the defendant’s right to effective counsel. State v. Watson, 26 Or App 59, 551 P2d 1314 (1976)

Under this sec­tion, state was re­quired to present by witnesses in open court derogatory in­for­ma­­tion contained in its sen­ten­cing summary. State v. Collins, 43 Or App 265, 602 P2d 1081 (1980)

This sec­tion makes hearsay rules of evidence applicable to testimony of witnesses in sen­ten­cing hearing about circumstances that are put forward to justify aggrava­tion of punish­ment where testimony implicates defendant in crim­i­nal ac­tivity for which he has never been charged or tried. State v. Deck, 84 Or App 725, 735 P2d 637 (1987)

Inclusion of persistent involve­ment history in determining crim­i­nal history score does not preclude court from using same history as basis for imposing upward departure sen­tence. State v. Kennedy, 113 Or App 134, 831 P2d 712 (1992); State v. Westcott, 139 Or App 374, 912 P2d 400 (1996), Sup Ct review denied

Court may consider incidents occurring sub­se­quent to tried of­fense as evidence of persistent involve­ment in crim­i­nal ac­tivity. State v. Ceballos, 162 Or App 477, 986 P2d 680 (1999), Sup Ct review denied

Where prior juvenile adjudica­tion is offered for sen­tence enhance­ment purposes, existence of adjudica­tion must either be proved to trier of fact or be admitted by defendant for sen­ten­cing purposes following informed and knowing waiver. State v. Harris, 339 Or 157, 118 P3d 236 (2005)

Sentence enhancing factors are ma­te­ri­al ele­ments of of­fense that state is re­quired to prove beyond reasonable doubt. State v. Upton, 339 Or 673, 125 P3d 713 (2005)

Require­ment that miscellaneous evidence relevant to aggrava­tion or mitiga­tion be “trustworthy and reliable” does not make Oregon Evidence Code applicable to adjudicatory phase of revoca­tion pro­ceed­ing. State v. Hammond, 218 Or App 574, 180 P3d 137 (2008)

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.