Presumptive life sentence for certain sex offenders upon third conviction
Source:
Section 137.719 — Presumptive life sentence for certain sex offenders upon third conviction, https://www.oregonlegislature.gov/bills_laws/ors/ors137.html
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Notes of Decisions
Imposition of life sentence on recidivist sex offender does not violate requirement in section 16, Article I of Oregon Constitution, that punishment be proportional to offense. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)
Whether prior court disposition constitutes sentence depends on whether disposition was classified as sentence at time that court ordered disposition, not on whether disposition currently is classified as sentence. Gordon v. Hall, 232 Or App 174, 221 P3d 763 (2009)
Where defendant was convicted of fourth and fifth public indecency crimes but had never been convicted of any other sex crime, and under this section defendant was sentenced to two consecutive terms of life in prison without possibility of release, penalty was unconstitutionally disproportionate to crimes under Article I, section 16, Oregon Constitution, because defendant’s public indecency episodes were not accompanied by violence or force or any other forcibly violent sexual conduct. State v. Davidson, 271 Or App 719, 353 P3d 2 (2015), aff’d 360 Or 370, 380 P3d 963 (2016)
Sentence imposed under this section does not come within class of sentences to which [former] ORS 138.222 applies; thus, presumptive life sentence imposed under this section is not barred from direct appellate review. State v. Althouse, 359 Or 668, 375 P3d 475 (2016)
As used in this section, “comparable offenses” refers to offenses with elements that are same as or nearly same as elements of Oregon felony sex crime, not to offenses that merely share core similarity with such offense; thus, where defendant’s convictions from another state were not comparable to qualifying Oregon offense, court erred in imposing presumptive life sentence under this section. State v. Carlton, 361 Or 29, 388 P3d 1093 (2017)
Whether out-of-state sentence qualifies as predicate for imposing life sentence under this section is evaluated according to whether state imposing punishment considered punishment to be “sentence.” Molette v. Nooth, 291 Or App 426, 421 P3d 379 (2018), Sup Ct review denied
Where, at time of petitioner’s adjudications, petitioner’s probation was categorized as “community supervision,” petitioner was not “sentenced” under Texas law; thus, Texas adjudications could not be used as factual predicate sentences for purposes of this section. Molette v. Nooth, 291 Or App 426, 421 P3d 379 (2018), Sup Ct review denied
Where presumptive sentence was previously held unconstitutionally disproportionate as applied to defendant, felony sentencing guidelines provided secondary sentencing authority. State v. Davidson, 307 Or App 478, 353 P3d 570 (2020), aff’d 369 Or 480, __ P3d __ (2022)
Because this section’s reference to “rules of the Oregon Criminal Justice Commission” implies legislature’s intent that departure sentence from this section’s presumptive sentence of life imprisonment without possibility of release or parole must conform with all rules of OAR chapter 213, departure sentence of 180 months’ imprisonment and lifetime post-prison supervision was imposed in error. State v. Davidson, 307 Or App 478, 353 P3d 570 (2020), aff’d 369 Or 480, __ P3d __ (2022)
Under 1981 version of this section, prior conviction for which defendant was sentenced but execution of sentence was suspended and defendant was instead placed on probation does not constitute “prior sentence.” State v. Craig, 314 Or App 447, 497 P3d 821 (2021)