826 P.2d 1010 (Or.App. 1992), CA A65499, State v. Wilson

Docket Nº:C89-11-36661; CA A65499.
Citation:826 P.2d 1010, 111 Or.App. 147
Opinion Judge:JOSEPH, C. J.
Party Name:STATE of Oregon, Respondent, v. Nathaniel J. WILSON, Appellant.
Attorney:Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant. Ann F. Kelley, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Case Date:February 12, 1992
Court:Court of Appeals of Oregon
 
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Page 1010

826 P.2d 1010 (Or.App. 1992)

111 Or.App. 147

STATE of Oregon, Respondent,

v.

Nathaniel J. WILSON, Appellant.

C89-11-36661; CA A65499.

Court of Appeals of Oregon.

February 12, 1992

Argued and Submitted July 24, 1991.

Page 1011

[111 Or.App. 148] Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief, for appellant.

Ann F. Kelley, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and JOSEPH, C.J., and DEITS, J.

[111 Or.App. 149] JOSEPH, Chief Judge.

Defendant pleaded guilty to promoting prostitution. ORS 167.012. Under grid block 8 C, his presumptive guideline sentence was a range of 29 to 34 months of incarceration. The sentencing court found aggravating factors and imposed an upward departure of 60 months imprisonment. Defendant challenges his sentence, arguing that the aggravating factors relied on by the court were not substantial and compelling reasons for a departure. We remand for resentencing.

For any felony committed on or after November 1, 1989, the maximum sentence that can be imposed must be in accordance with the rules adopted by the Sentencing Guidelines Board. ORS 137.010; ORS 137.080(2). A presumptive sentence must be imposed, subject to judicial discretion to deviate for substantial and compelling reasons. OAR 253-08-001. Review of a so-called "departure sentence" is subject to ORS 138.222(3):

"In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the State Sentencing Guidelines Board, sentence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the State Sentencing Guidelines Board:

"(a) Are supported by the evidence in the record; and

"(b) Constitute substantial and compelling reasons for departure."

Under that provision, our review is of the sentencing court's factual basis and reasons for the departure, not the decision whether to depart. State v. Orsi/Gauthier, 108 Or.App. 176, 813 P.2d

Page 1012

82 (1991). 1 Neither the statute nor the rules define "substantial and compelling." 2 However, a departure must further the purposes of the guidelines. OAR [111 Or.App. 150] 253-08-003. These purposes are primarily to punish offenders appropriately and to ensure the security of the public. Or Laws 1987, ch. 619, § 2; OAR 253-02-001. 3 The premise underlying the guidelines is that the grid block sentence presumptively accomplishes the purposes. See OAR 253-02-001(2). It follows that substantial and compelling reasons must be exceptional circumstances that overcome that presumption.

To assist sentencing courts in determining whether substantial and compelling reasons exist, OAR 253-08-002(1) provides a list of aggravating and mitigating factors:

"Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist * * *." (Emphasis supplied.)

The examples in the commentary to the rule show that the factors permit consideration of the circumstances of a particular crime, which might be different from what was...

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