2017 ORS 161.725¹
Standards for sentencing of dangerous offenders

(1) Subject to the provisions of ORS 161.737 (Sentence imposed on dangerous offender as departure from sentencing guidelines), the maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and one or more of the following grounds exist:

(a) The defendant is being sentenced for a Class A felony and the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.

(b) The defendant is being sentenced for a felony that seriously endangered the life or safety of another, the defendant has been previously convicted of a felony not related to the instant crime as a single criminal episode and the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.

(c) The defendant is being sentenced for a felony that seriously endangered the life or safety of another, the defendant has previously engaged in unlawful conduct not related to the instant crime as a single criminal episode that seriously endangered the life or safety of another and the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.

(2) As used in this section, “previously convicted of a felony” means:

(a) Previous conviction of a felony in a court of this state;

(b) Previous conviction in a court of the United States, other than a court-martial, of an offense which at the time of conviction of the offense was and at the time of conviction of the instant crime is punishable under the laws of the United States by death or by imprisonment in a penitentiary, prison or similar institution for a term of one year or more; or

(c) Previous conviction by a general court-martial of the United States or in a court of any other state or territory of the United States, or of the Commonwealth of Puerto Rico, of an offense which at the time of conviction of the offense was punishable by death or by imprisonment in a penitentiary, prison or similar institution for a term of one year or more and which offense also at the time of conviction of the instant crime would have been a felony if committed in this state.

(3) As used in this section, “previous conviction of a felony” does not include:

(a) An offense committed when the defendant was less than 16 years of age;

(b) A conviction rendered after the commission of the instant crime;

(c) A conviction that is the defendant’s most recent conviction described in subsection (2) of this section, and the defendant was finally and unconditionally discharged from all resulting imprisonment, probation or parole more than seven years before the commission of the instant crime; or

(d) A conviction that was by court-martial of an offense denounced only by military law and triable only by court-martial.

(4) As used in this section, “conviction” means an adjudication of guilt upon a plea, verdict or finding in a criminal proceeding in a court of competent jurisdiction, but does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory. [1971 c.743 §85; 1989 c.790 §75; 1993 c.334 §5; 2005 c.463 §§9,14; 2007 c.16 §4]

Notes of Decisions

Under Former Similar Statutes (Ors 137.111 to 137.115)

Procedures for sen­ten­cing did not amount to a denial of equal protec­tion because they were different from the mental commit­ment pro­ce­dures. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

In General

Since this sec­tion does not require proof beyond reasonable doubt of dangerous offender status, evidence that defendant entertained sexual fantasies of rape, and that he had prior con­vic­­tions for forcible sex of­fenses, was sufficient to show that he was “suffering from severe per­sonality disorder indicating propensity toward crim­i­nal ac­tivity.” State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

This sec­tion does not conflict with ORS 426.675 (Determination of sexually dangerous persons) because it provides for magnified sen­tence of incarcera­tion for dangerous offender as means of preventing individual from inflicting future harm, while ORS 426.675 (Determination of sexually dangerous persons) authorizes treat­ment program for sexually dangerous per­son during incarcera­tion. State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

Legislative intent of this sec­tion was not that first offender receive enhanced penalty because accomplice had pre­vi­ously been convicted. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

It was proper for trial court to apply this sec­tion to extend max­i­mum period of commit­ment of defendant to jurisdic­tion of Psychiatric Security Review Board. State v. Carrol, 54 Or App 445, 635 P2d 17 (1981), Sup Ct review denied

Whether felony for which defendant is being sen­tenced seriously endangered the life or safety of an­oth­er is determined by actual circumstances, not ele­ments defining felony. State v. Allen, 68 Or App 5, 680 P2d 997 (1984), Sup Ct review denied

Argu­ment by defendant that trial court lacked authority to impose min­i­mum sen­tence after sen­ten­cing him as dangerous offender under this sec­tion was without merit. State v. Downs, 69 Or App 556, 686 P2d 1041 (1984)

Where sen­tence imposed under this sec­tion is for felony con­vic­­tion, ORS 144.110 (Restriction on parole of persons sentenced to minimum terms) allows imposi­tion of min­i­mum term of im­pris­on­­ment. State v. Turner, 296 Or 451, 676 P2d 873 (1984)

Whether defendant is suffering from “severe per­sonality disorder indicating a propensity toward crim­i­nal ac­tivity” is determina­tion to be made by court upon considera­tion of psychiatric report, presen­tence report and evidence in case or that presented at presen­tence hearing. State v. Huntley, 302 Or 418, 730 P2d 418 (1986)

Although trial court is re­quired to order psychiatric examina­tion of defendant under ORS 161.735 (Procedure for determining whether defendant dangerous) (1), court is not bound by conclusions of any psychotherapist but is re­quired by statute to make its own findings as to whether defendant is suffering from severe per­sonality disorder with propensity toward crim­i­nal ac­tivity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

While court must consider psychiatric report, statute does not require that psychiatrist make finding of dangerousness or severe per­sonality disorder. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Trice, 146 Or App 15, 933 P2d 345 (1997)

Language of this sec­tion requiring that court find defendant is suffering from severe per­sonality disorder indicating a propensity toward crim­i­nal ac­tivity means a finding that defendant is suffering from a severe mental or emo­­tion­al disorder indicating propensity toward continuing dangerous crim­i­nal ac­tivity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

Where court found that defendant was dangerous offender under standards of this sec­tion, fact that defendant was also psychotic did not render statute inapplicable. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

If per­son is only psychotic and does not also suffer from severe per­sonality disorder accompanied by propensity to commit future crim­i­nal acts, fact that psychotic offender might be dangerous would not bring him within this statute. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

Minimum sen­tence under ORS 161.725 (Standards for sentencing of dangerous offenders) for per­son suffering severe per­sonality disorder is not cruel and unusual punish­ment of per­son for suffering disorder, but reflects legislative recogni­tion that having disorder makes per­son more likely to commit dangerous crimes and less amenable to rehabilita­tion. State v. Caughey, 89 Or App 605, 750 P2d 511 (1988), Sup Ct review denied

This sec­tion does not authorize penalty in addi­tion to that imposed for underlying of­fense, it only authorizes enhanced sen­tence in lieu of that otherwise authorized for particular crime. State v. Burr, 90 Or App 338, 752 P2d 330 (1988)

For purpose of imposi­tion of dangerous offender sanc­tions, this sec­tion relates to nature of crime for which defendant is sen­tenced and not to nature of defendant’s involve­ment. State v. Mastne/Passer, 91 Or App 31, 754 P2d 4 (1988), Sup Ct review denied

Where court considered “report” under ORS 161.735 (Procedure for determining whether defendant dangerous) that defendant was unco­op­er­a­tive and that psychiatric analysis could not be made and observed defendant and heard evidence, including descrip­tion of defendant’s con­duct during crim­i­nal episode, there was sufficient evidence to support finding that defendant is dangerous offender under this sec­tion. State v. Pryor, 96 Or App 181, 772 P2d 431 (1989), Sup Ct review denied

After finding defendant is dangerous offender under this sec­tion and ORS 161.735 (Procedure for determining whether defendant dangerous), sen­ten­cing court may not sen­tence defendant to determinate term under ORS 137.635 (Determinate sentences required for certain felony convictions). State v. Reese, 114 Or App 557, 836 P2d 737 (1992)

Where trial court found defendant was dangerous offender suffering from severe per­sonality disorder indicating propensity towards crim­i­nal ac­tivity, and dangerousness of defendant re­quired extended incarcera­tion for protec­tion of public, these findings taken together are sufficient to support conclusion defendant is dangerous offender. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Where 30-year dangerous offender sen­tence exceeded prescribed statutory max­i­mum sen­tence, imposi­tion of dangerous offender sen­tence based on finding of fact by court violated defendant’s federal constitu­tional right to have fact proved to jury beyond reasonable doubt. State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), Sup Ct review denied

Waiver of right to jury trial on underlying charge is not waiver of right to have jury determine whether defendant is dangerous offender for sen­ten­cing purposes. State v. Williams, 197 Or App 21, 104 P3d 1151 (2005)

Completed Cita­tions

O’Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied

§§ 161.705 (Reduction of certain felonies to misdemeanors) to 161.735 (Procedure for determining whether defendant dangerous)

Notes of Decisions

By enacting this sec­tion, the legislature intended to authorize a compromise of all Class C felonies which could be punished “as a misdemeanor.” State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

Imposi­tion of one-year jail term upon con­vic­­tion of crim­i­nal ac­tivity in drugs was within max­i­mum sen­tence authorized for crime, was imposed after defendant had violated proba­tion, and did not shock the conscience. State v. Davis, 31 Or App 439, 570 P2d 683 (1977), Sup Ct review denied

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature’s adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­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.