§ 22.1 Application and Scope of Guidelines

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 22.1 APPLICATION AND SCOPE OF GUIDELINES

§ 22.1-1 Historical Background

The 1989 Legislative Assembly replaced the existing indeterminate-sentencing system with a determinate system called sentencing guidelines. The primary vehicle for the change was Oregon Laws 1989, chapter 790. The guidelines were promulgated as OAR chapter 253, by the State Sentencing Guidelines Board ("the board"), and the legislature expressly approved these rules. Or Laws 1989, ch 790, § 87; State v. Speedis, 350 Or 424, 427 n 2, 256 P3d 1061 (2011) ("Although the [Oregon Criminal Justice Commission, current administrator of the guidelines] adopted the sentencing guidelines as rules, the legislature later enacted the sentencing guidelines as statutes."). The Oregon Criminal Justice Council published the guidelines and the board's commentary to the rules in the Oregon Sentencing Guidelines Implementation Manual (1989 & Supp 1992), available at https://digital.osl.state.or.us/islandora/object/osl:762420.

The change to a determinate-sentencing system was a legislative response to a number of criticisms of the former indeterminate-sentencing system. The 1987 Legislative Assembly found that the indeterminate-sentencing system could not ensure sentencing uniformity or proportional punishment and concluded that sentencing decisions should be made to "maintain institutional populations within a level for which the Legislative Assembly and the people of the state are prepared to provide." Or Laws 1987, ch 619 (Preamble). Consequently, the legislature created the board and directed it to develop sentencing guidelines to control commitment to both state and local correctional facilities and to establish new community supervision requirements. Or Laws 1987, ch 619, § 2(1).

The sentencing guidelines, which were enacted in 1989, were originally codified in OAR chapter 253. Various provisions in the original guidelines were repealed or amended in 1993, and those repeals or amendments apply only to crimes committed on or after November 1, 1993. Or Laws 1993, ch 692, § 1. In 1995, the rules were amended again, this time only in minor respects, but they were recodified in OAR chapter 213, because the Oregon Criminal Justice Commission now administers the rules. Although the new rules use the 213 prefix, they use similar rule numbers thereafter (e.g., OAR 253-08-002 became OAR 213-008-0002). The new rules took effect on September 9, 1995, but the substantive changes to them apply only to crimes committed on or after November 1, 1995. See Or Laws 1995, ch 520, § 1. Because some of the rules have changed over the years, the lawyer must ensure that the version of the rules being applied is the version that was in force when the defendant committed the crime for which the defendant is being sentenced:

(1) original rules (former OAR ch 253) apply only to crimes committed on November 1, 1989, through October 31, 1993;

(2) rules with 1993 amendments (former OAR ch 253) apply only to crimes committed on November 1, 1993, through October 31, 1995; and

(3) current rules (OAR ch 213) apply only to crimes committed on or after November 1, 1995, if the crimes were committed before November 1, 1997. See State v. Bergeson, 138 Or App 321, 908 P2d 835 (1995), rev den, 323 Or 690 (1996) (because the defendant committed his crimes between November 1, 1989, and November 1, 1993, convictions were subject to the original version of guidelines). For crimes committed on or after November 1, 1997, applicable 1997 legislative amendments may apply.

§ 22.1-2 Constitutionality of Guidelines

In June 2004, the United States Supreme Court issued Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), a landmark sentencing decision that had a dramatic impact on jurisdictions, including Oregon, that employ sentencing schemes that authorize increased punishment based on judge-made fact-findings over and above jury findings. The Blakely decision followed and built on Apprendi v. New Jersey, 530 US 466, 476, 120 S Ct 2348, 147 L Ed 2d 435 (2000), which held that under the Sixth and Fourteenth Amendments to the United States Constitution, the constitutionally permissible sentencing range is set by jury fact-findings beyond a reasonable doubt, not by judge-made fact-findings using a lesser standard of proof.

Under Blakely, the maximum sentence in the sentencing guidelines scheme is the presumptive sentence, because that is the maximum sentence that may be imposed based solely on a verdict on the charged offense. Blakely, 542 US at 303-04. The Oregon Supreme Court held in State v. Dilts, 337 Or 645, 653, 103 P3d 95 (2004), that Blakely precludes an upward departure under the sentencing guidelines based on a factual finding made by the sentencing judge unless the defendant waives a jury or admits the fact at issue.

The 2005 Legislature addressed Blakely and Apprendi by enacting ORS 136.760 to 136.792, which establishes procedures that allow the state to allege, and a jury to determine, facts that provide a basis for a court to impose an enhanced sentence. Or Laws 2005, ch 463.

The question whether the Blakely right-to-a-jury rule applies to other aspects of criminal sentencing in addition to durational- and dispositional-departure sentences is not completely settled. As noted in many individual sections in this chapter, it is unclear whether the Blakely rule applies, for example, to the determination of separate criminal episodes and to some other aspects of sentencing that require a predicate fact-finding before the imposition of a particular sentencing provision. But the Oregon Court of Appeals held in State v. Thornsberry, 315 Or App 287, 293-94, 501 P3d 1 (2021), that when a defendant is found guilty of two or more offenses that are potentially subject to ORS 137.690(a), the defendant is entitled under Apprendi to a determination by the jury of whether the defendant committed those offenses in separate criminal episodes before the trial court can rely on the first conviction to impose the 25-year minimum sentence prescribed by ORS 137.690(a) on the second conviction.

Under state law and apart from the Apprendi-Blakely questions noted above, the Oregon appellate courts have held that the sentencing guidelines do not violate the following provisions of the Oregon Constitution: Article I, section 15 (stating foundation principles for "punishment of crime"); Article I, section 16 (requiring that "all penalties shall be proportioned to the offense"); Article III, section 1 (separation-of-powers provision); and Article IV, section 22 (requiring "acts" to be "published at full length"). State v. Speedis, 350 Or 424, 430-32, 256 P3d 1061 (2011); State v. Davilla, 234 Or App 637, 643-46, 230 P3d 22 (2010), rev den, 350 Or 717 (2011); State v. Norris, 188 Or App 318, 344-45, 72 P3d 103, rev den, 336 Or 126 (2003); State v. Spinney, 109 Or App 573, 577-79, 820 P2d 854 (1991), rev dismissed, 313 Or 75 (1992).

For many of the less serious felonies, the guidelines prescribe either a presumptive sentence of probation or a prison sentence of less than one year. Consequently, a sentencing court may have authority to impose a jail sentence on a lesser included misdemeanor offense that is longer than the presumptive sentence prescribed for the greater felony. The fact that the presumptive sentence that the guidelines prescribe for a felony offense may be less than the sentence imposed on a lesser included misdemeanor conviction does not of itself render the misdemeanor sentence an unconstitutionally disproportionate punishment. State v. Rice, 114 Or App 101, 106-07, 836 P2d 731, rev den, 314 Or 574 (1992).

§ 22.1-3 Constitutional Issues at Sentencing

§ 22.1-3(a) Right to Jury, Apprendi Issues

In Apprendi v. New Jersey, 530 US 466, 490, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the Court held, under the Due Process Clause and the Sixth Amendment (right to a jury trial) to the United States Constitution, that although it is permissible for a sentencing court to exercise its discretion and consider facts related to the crime that were not necessarily found by the jury when it imposed a sentence that was within the statutory range prescribed for the offense, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." See Ring v. Arizona, 536 US 584, 609, 122 S Ct 2428, 153 L Ed 2d 556 (2002) (rule in Apprendi applies to findings of aggravating factors that are necessary, under state law, to render a defendant convicted of murder eligible for death penalty). By statute, the state must allege in the indictment and prove to the jury beyond a reasonable doubt an offense-subcategory factor that determines the crime-seriousness ranking of a conviction under the guidelines. ORS 132.557; ORS 475.900(4) (commercial drug offenses; see § 22.2-1). Moreover, the Oregon Supreme Court has interpreted Article I, section 11, of the Oregon Constitution to require the state to allege in the indictment, and to prove to a jury beyond a reasonable doubt, any fact relating to the circumstances of the offense that permits or requires the imposition of a sentence beyond that authorized for the underlying offense. State v. Quinn, 290 Or 383, 399-407, 623 P2d 630 (1981), overruled on other grounds by State v. Hall, 339 Or 7, 115 P3d 908 (2005) (death penalty); State v. Wedge, 293 Or 598, 607-09, 652 P2d 773 (1982) (firearm minimum); State v. Mitchell, 84 Or App 452, 458, 734 P2d 379, rev den, 303 Or 590 (1987) (dangerous offender).

The exception in Apprendi for "the fact of a prior conviction" means that when an offense is enhanced (e.g., from a misdemeanor to a felony) based on the fact that the defendant has a prior conviction of a specific type, the defendant is not constitutionally entitled to a jury trial on that fact. State v. Guzman/Heckler, 366 Or 18, 35-36, 455 P3d 485...