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Oregon Supreme Court: State Sentencing Guidelines Control Repeat Sex Offender Downward Departure Sentences

by Mark Wilson

The Supreme Court of Oregon unanimously held that upon finding that a life without parole (“LWOP”) sentence is not appropriate under Oregon’s repeat sex offense law, sentence must be imposed under the state sentencing guidelines.

Oregon lawmakers enacted ORS 137.719 in 2001. Section 1 requires a presumptive LWOP sentence for a felony sex offense if the defendant has previously been convicted of two felony sex crimes. If the court determines that such a sentence is inappropriate, it may impose a departure sentence based upon finding substantial and compelling reasons to do so under § 2.

Public Indecency is a Class A misdemeanor in Oregon. It is a Class C felony, however, if the defendant has previously been convicted of Public Indecency.

Dennis James Davidson was convicted of two felony counts of Public Indecency for exposing himself in a public park. The charges were felonies because he had previously been convicted of felony Public Indecency, meaning that he had at least one additional misdemeanor Public Indecency conviction as well.

Finding no substantial and compelling reasons for a downward departure, the trial court sentenced Davidson to two consecutive LWOP sentences under ORS 137.719(1). The Oregon Supreme Court later reversed, concluding that the consecutive LWOP sentences were unconstitutionally disproportionate, as applied to Davidson’s offenses, because his criminal history included no offense more serious than Public Indecency and that history did not include any other conduct demonstrating that he posed a “significant physical danger to society.”

On remand, the trial court concluded that ORS 137.719(1) did not require it to impose sentence under the state sentencing guidelines rules. It then found that the Supreme Court’s determination that the presumptive LWOP sentence was unconstitutional as applied to Davidson was a substantial and compelling reason to depart from that presumptive sentence.

Adopting the original sentencing court’s findings — Davidson was persistently involved in the same type of offense; his crimes involved multiple victims; he was on supervision at the time of the crimes; his prior incarceration had not deterred his criminal activity; and incarceration was necessary for the protection of the public — the court resentenced Davidson to consecutive 90-month sentences, for a 180-month aggregate prison term followed by a lifetime post-prison supervision term. The Court of Appeals reversed, and the State appealed.

The Supreme Court again reversed. Applying rules of statutory construction, the Court concluded that when the presumptive LWOP sentence authorized by ORS 137.719(1) is not available, the sentencing court is required to impose a downward departure sentence under ORS 137.719(2), and that sentence must be consistent with Oregon’s felony sentencing guidelines rules. That is, the sentence must comply with the rules (1) governing the setting of a grid block sentence and (2) imposing maximum limits on prison terms and post-prison supervision terms. Consequently, the Court ruled that the trial court erred in concluding “that it was not required to consult the felony sentencing guidelines in departing from the statutory presumptive sentence and that it could impose any constitutional sentence longer than the presumptive guidelines sentence.”

“On remand … the trial court must impose a sentence using the guidelines grid block as the starting point and departing from there based on findings of substantial and compelling reasons, as permitted under the felony sentencing guidelines rules,” the Court instructed. “Any term of post-prison supervision that the trial court imposes also must conform to the requirements of the felony sentencing guidelines,” the Court added and observed that these limitations will result in a significantly shorter sentence than the consecutive 90-month prison terms and lifetime post-prison supervision term imposed during the first remand proceeding.

Accordingly, the Court affirmed the decision of the Court of Appeals and remanded the case to the trial court for further proceedings. See: State v. Davidson, 507 P.3d 246 (Ore. 2022). 

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