departure factors in Oregon

2009I mean, you are in the worst category. * * * í-í ‡ “* * * You have a conviction for every year of your life since age 18 if you average it out.” The departure factors set out in the sentencing guidelines are nonexclusive and where, as here, a court relies on reasons not set out in an enumerated departure factor, “[t]he key question [becomes] whether the stated reasons constitute substantial and compelling reasons to depart from the presumptive sentence.” State v. Rhoades, 210 Or App 280, 285 , 149 P3d 1259 (2006).

2009I mean, you are in the worst category. * * * í-í ‡ “* * * You have a conviction for every year of your life since age 18 if you average it out.” The departure factors set out in the sentencing guidelines are nonexclusive and where, as here, a court relies on reasons not set out in an enumerated departure factor, “[t]he key question [becomes] whether the stated reasons constitute substantial and compelling reasons to depart from the presumptive sentence.” State v. Rhoades, 210 Or App 280, 285 , 149 P3d 1259 (2006).

2009“In determining whether a factor constitutes a substantial and compelling reason for departure, we [examine] whether ‘exceptional circumstances [exist that] overcome the presumption that the [presumptive] sentence accomplishes the purposes of the guidelines.’ ”Id. at 284-85 (citing State v. Parsons, 135 Or App 188, 191 , 897 P2d 1197 , rev den, 322 Or 168 (1995)).

2009“In determining whether a factor constitutes a substantial and compelling reason for departure, we [examine] whether ‘exceptional circumstances [exist that] overcome the presumption that the [presumptive] sentence accomplishes the purposes of the guidelines.’ ”Id. at 284-85 (citing State v. Parsons, 135 Or App 188, 191 , 897 P2d 1197 , rev den, 322 Or 168 (1995)).

2009As we explained in State v. Allen, 198 Or App 392 , *275 396, 108 P3d 651 , adh’d to as clarified on recons, 202 Or App 565 , 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant’s supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.” On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference that defendant had failed to be deterred by prior sanctions.

2009As we explained in State v. Allen, 198 Or App 392 , *275 396, 108 P3d 651 , adh’d to as clarified on recons, 202 Or App 565 , 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant’s supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.” On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference that defendant had failed to be deterred by prior sanctions.

2009As we explained in State v. Allen, 198 Or App 392 , *275 396, 108 P3d 651 , adh’d to as clarified on recons, 202 Or App 565 , 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant’s supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.” On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference that defendant had failed to be deterred by prior sanctions.

2009As we explained in State v. Allen, 198 Or App 392 , *275 396, 108 P3d 651 , adh’d to as clarified on recons, 202 Or App 565 , 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant’s supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.” On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference that defendant had failed to be deterred by prior sanctions.

2022There we have said Cite as 317 Or App 803 (2022) 805 the circumstances must be “sufficiently exceptional” to show that the presumptive sentence “would fail to accomplish the purposes of the sentencing guidelines.” State v. Agee, 223 Or App 729, 744 , 196 P3d 1060 (2008).

2022There we have said Cite as 317 Or App 803 (2022) 805 the circumstances must be “sufficiently exceptional” to show that the presumptive sentence “would fail to accomplish the purposes of the sentencing guidelines.” State v. Agee, 223 Or App 729, 744 , 196 P3d 1060 (2008).

2022There we have said Cite as 317 Or App 803 (2022) 805 the circumstances must be “sufficiently exceptional” to show that the presumptive sentence “would fail to accomplish the purposes of the sentencing guidelines.” State v. Agee, 223 Or App 729, 744 , 196 P3d 1060 (2008).

2013Our construction of the statute is also consistent with the legislative purpose of the resisting arrest statute to “reduce challenges to arrest under color of law because such challenges foster civil disorder and disrespect for the law.” State v. Brandon, 35 Or App 661, 663 , 582 P2d 52 , rev den, 284 Or 235 (1978).

2013Our construction of the statute is also consistent with the legislative purpose of the resisting arrest statute to “reduce challenges to arrest under color of law because such challenges foster civil disorder and disrespect for the law.” State v. Brandon, 35 Or App 661, 663 , 582 P2d 52 , rev den, 284 Or 235 (1978).

2013Put another way, had the drafters of the sentencing guidelines intended to include victims of other related crimes (in addition to direct victims of the crime of conviction) in the “multiple victims” factor, they would have phrased the guideline as “multiple victims of the criminal conduct associated with the crime of conviction” or “multiple victims who are harmed or threatened with harm caused by the criminal conduct,” rather than “[t]he offense involved multiple victims.” Second, most of the departure factors are tied to a defendant’s conduct as part of the commission of the crime or to cir

2013Put another way, had the drafters of the sentencing guidelines intended to include victims of other related crimes (in addition to direct victims of the crime of conviction) in the “multiple victims” factor, they would have phrased the guideline as “multiple victims of the criminal conduct associated with the crime of conviction” or “multiple victims who are harmed or threatened with harm caused by the criminal conduct,” rather than “[t]he offense involved multiple victims.” Second, most of the departure factors are tied to a defendant’s conduct as part of the commission of the crime or to cir

2010Cf. State v. Martina, 227 Or App 13, 16 , 205 P3d 87 , rev den, 346 Or 590 (2009) (finding no legitimate debate that jury would have found that defendant was under supervision at the time of his present crime where the defendant committed multiple violent assaults and manslaughter while on probation for an assault conviction).

2010Cf. State v. Martina, 227 Or App 13, 16 , 205 P3d 87 , rev den, 346 Or 590 (2009) (finding no legitimate debate that jury would have found that defendant was under supervision at the time of his present crime where the defendant committed multiple violent assaults and manslaughter while on probation for an assault conviction).

2010With regard to the “persistent involvement” factor, we applied the Supreme Court’s analysis in State v. Bray, 342 Or 711, 724 , 160 P3d 983 (2007).

2010With regard to the “persistent involvement” factor, we applied the Supreme Court’s analysis in State v. Bray, 342 Or 711, 724 , 160 P3d 983 (2007).

2010State v. Wilson, 111 Or App 147 , 826 P2d 1010 (1992).” 227 Or App at 367 . 1 As noted, the trial court identified four departure factors: (1) persistent involvement in similar offenses; (2) defendant’s supervision status at the time of the current offense; (3) defendant’s escalating pattern of violence; and (4) defendant’s not having been receptive to treatment.

2010Cf. State v. Martina, 227 Or App 13, 16 , 205 P3d 87 , rev den, 346 Or 590 (2009) (finding no legitimate debate that jury would have found that defendant was under supervision at the time of his present crime where the defendant committed multiple violent assaults and manslaughter while on probation for an assault conviction).

2008The court then drew multiple competing inferences from the record concerning the defendant’s guilty plea, including that he chose, “for one of many possible reasons, not to have a jury find the aggravating facts.” 340 Or at 170 .

2005The state acknowledges that, in State v. Perez, 196 Or App 364, 372-73 , 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we considered an *570 unpreserved Blakely/Apprendi challenge involving the same departure factors.

2005He first argues that the upward durational departure sentence imposed by the trial court on his DUII conviction was error under Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), because a jury did not determine his criminal history score, did not determine the existence of the departure factors relied on by the trial court, and did not make the findings supporting the trial court’s denial of consideration for sentence modification programs as provided in ORS 137.750.

2005He first argues that the upward durational departure sentence imposed by the trial court on his DUII conviction was error under Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), because a jury did not determine his criminal history score, did not determine the existence of the departure factors relied on by the trial court, and did not make the findings supporting the trial court’s denial of consideration for sentence modification programs as provided in ORS 137.750.

2005The state acknowledges that, in State v. Perez, 196 Or App 364, 372-73 , 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we considered an *570 unpreserved Blakely/Apprendi challenge involving the same departure factors.

2005The state acknowledges that, in State v. Perez, 196 Or App 364, 372-73 , 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we considered an *570 unpreserved Blakely/Apprendi challenge involving the same departure factors.

2001However, one of the elements of the offense was that it was committed “by means of a deadly or dangerous weapon.” Factual aspects of a crime that constitute elements of the crime generally may not be used as aggravating factors as well, “unless the aspect is ‘significantly different from the usual criminal conduct captured by the aspect of the crime.’ ” State v. Guthrie, 112 Or App 102, 106 , 828 P2d 432 (1992), quoting OAR 213-008-0002(2).

1994ORS 25.280 says that "the following criteria shall be considered in making the finding" that the presumed amount of support is "unjust or inappropriate." (Emphasis supplied.) We agree with the dissent's characterization that "the provision does not clearly require the court to base a departure from the presumption only on the criteria enumerated." [1] 132 Or.

1994App. at 204 , 888 P.2d at 31 .

1984Until it does, the bar and the public are justified in expecting the courts, except in the most egregious cases, neither to depart from previous interpretations of statutes, nor to give them a grudging application.” At first blush, it seems that our decision in State v. Biles, 287 Or 63 , 597 P2d 808 (1979), is a departure from the rule of State v. Jairl, supra. We believe not.

1984Until it does, the bar and the public are justified in expecting the courts, except in the most egregious cases, neither to depart from previous interpretations of statutes, nor to give them a grudging application.” At first blush, it seems that our decision in State v. Biles, 287 Or 63 , 597 P2d 808 (1979), is a departure from the rule of State v. Jairl, supra. We believe not.

1981Hess v. Larson, supra, 259 Or at 286-287 .