State v. Reese, P-3012
Decision Date | 08 June 1994 |
Docket Number | P-3012 |
Citation | 876 P.2d 317,128 Or.App. 323 |
Parties | STATE of Oregon, Respondent, v. Michael Lloyd REESE, Appellant. 91; CA A79298. |
Court | Oregon Court of Appeals |
David K. Allen, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Timothy A. Sylwester, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before WARREN, P.J., and EDMONDS and HASELTON, JJ.
This case is before us a second time. Defendant was convicted of two counts of kidnapping in the first degree, ORS 163.235, and attempted sodomy in the first degree. ORS 163.405. The sentencing court found that defendant was a dangerous offender and sentenced him to a determinate term of 30 years incarceration pursuant to ORS 137.635. In our opinion, 114 Or.App. 557, 836 P.2d 737 (1992), we remanded for resentencing, holding that the 30-year term under ORS 137.635 is an indeterminate term. We noted the specific requirement under the version of ORS 161.737 then in effect, 1 that the court was required to indicate the presumptive sentence that would have been imposed, if the court had not sentenced defendant as a dangerous offender. We concluded:
114 Or.App. at 560, 836 P.2d 737. (Emphasis supplied; footnote omitted.)
Thus, under the guidelines, a presumptive sentence is a term of art indicating the range of months found in the grid block created by a defendant's criminal history and the crime seriousness ranking. State v. Davis, supra, 315 Or. at 487, 847 P.2d 834. Here, defendant's grid block of 10-A has a presumptive term of 121 to 130 months.
On remand, the court again found that defendant was a dangerous offender under ORS 161.725, and the judgment recited the term of incarceration as 30 years. The judgment also recited the sentence which the court would have imposed, had it not found him to be a dangerous offender. However, instead of using the presumptive term as defined by OAR 253-03-001(16), the court accepted the state's argument that it could impose a guidelines departure sentence as the presumptive term. That was error. A dangerous offender sentence is, by definition, already a departure. ORS 161.737(1).
Defendant again appeals, assigning as error the trial court's use of a departure sentence as the presumptive term. The state argues that defendant failed to preserve his claim of error. However, the issue before the court was whether it could use a departure sentence as a presumptive term. We conclude that defendant's objection to imposition of a sentence other than one dictated by this court's opinion was sufficient to preserve his objection.
Furthermore, even if defend...
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Reese v. Baldwin
...presumptive sentence under the guidelines without departure should have been between 121 and 130 months. See State v. Reese, 128 Or.App. 323, 876 P.2d 317, 319 (1994). On the third sentencing after the second remand, the Oregon sentencing court appointed different counsel to represent Reese......