State v. Reeves
| Decision Date | 20 June 1995 |
| Citation | 894 P.2d 1170,134 Or.App. 38 |
| Parties | STATE of Oregon, Respondent, v. Benjie Allen REEVES, Appellant. 10-91-05359; CA A77961. |
| Court | Oregon Court of Appeals |
Sally L. Avera, Public Defender and David K. Allen, Deputy Public Defender, filed the brief for appellant.
Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., filed the brief for respondent.
Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.
This case is on remand from the Supreme Court for reconsideration in light of State v. Kephart, 320 Or. 433, 887 P.2d 774 (1994), and State v. Martin, 320 Or. 448, 887 P.2d 782 (1994). We affirm.
Defendant was charged by indictment with eight felonies. Pursuant to a plea agreement, he pleaded guilty to felony murder, ORS 163.115(1)(b)(G), robbery in the first degree, ORS 164.415, kidnapping in the first degree, ORS 163.235, and assault in the second degree, ORS 163.175(1)(b). The state dismissed the other four charges and the parties stipulated to the applicable grid blocks for sentencing. The sentencing court imposed upward departure sentences on the robbery and kidnapping convictions and ordered them to be served consecutively.
Defendant appealed and we affirmed from the bench. 128 Or.App. 697, 877 P.2d 677 (1994). Defendant sought review. The Supreme Court vacated our decision and remanded for reconsideration in light of Kephart and Martin. In those cases, the Supreme Court discussed the circumstances under which a sentence imposed pursuant to a plea agreement could be reviewed under ORS 138.222(2)(d), and said that a sentence is reviewable under that statute unless it is a " 'stipulated sentence[ ]' as illustrated in ORS 135.407." Kephart, 320 Or. at 447, 887 P.2d 774. See also Martin, 320 Or. at 450, 887 P.2d 782.
Here, defendant argues that we may review the trial court's imposition of a departure sentence and its order that defendant's convictions be served consecutively. We agree. Because defendant did not specifically accede to a departure sentence or agree that some of his sentences would be served consecutively, we may review that part of defendant's sentence. ORS 138.222(2)(d). Kephart, 320 Or. at 446, 887 P.2d 774; State v. Barrett, 134 Or.App. 162, 894 P.2d 1183 (1995).
We first consider defendant's assignment that the trial court erred in imposing a departure sentence. For any felony committed on or after November 1, 1989, the presumptive sentence must be imposed, subject to judicial discretion to deviate from that sentence for substantial and compelling reasons. State v. Wilson, 111 Or.App. 147, 149, 826 P.2d 1010 (1992); OAR 253-08-001. Our review is of the sentencing court's factual basis and reasons for the departure. ORS 138.222(3); Wilson, 111 Or.App. at 149, 826 P.2d 1010.
Defendant argues that the trial court erred in relying on OAR 253-08-002(1)(b)(D), which allows a departure sentence if the defendant's history shows a "persistent involvement in * * * repetitive assaults" unrelated to the underlying crime. At the conclusion of the sentencing hearing, the trial court made these findings:
Defendant argues that the Ohio "incidents" were not "assaultive," and that without them, there was insufficient evidence that his conduct was persistent. We reject those arguments. Each incident of assaultive behavior relied on by the trial court is supported by the record. We agree with the trial court that the aggravating factor of OAR 253-08-002(1)(b)(D) "showed exceptional circumstances." Wilson, 111 Or.App. at 152, 826 P.2d 1010. The trial court did not err in imposing a departure sentence.
Defendant's next assignment is that the sentences on his kidnapping and robbery convictions should have been concurrent with, and not consecutive to, the sentence imposed on the felony murder conviction. ORS 137.123 provides, in part:
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...post-prison supervision.2 B. Previous Post-Trial ProceedingsPetitioner filed a direct appeal, and this court affirmed. State v. Reeves , 134 Or. App. 38, 894 P.2d 1170, rev. den. , 321 Or. 284, 896 P.2d 1213 (1995). The following year, petitioner filed a petition for post-conviction relief;......
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State v. Barrett
...did not abuse its discretion in imposing consecutive sentences on the separate aggravated felony murder counts. See State v. Reeves, 134 Or.App. 38, 42, 894 P.2d 1170, rev. den. 321 Or. 284, 896 P.2d 1213 Affirmed. De MUNIZ, Judge, concurring. Defendant frames his arguments here as presenti......
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State v. Sumerlin
...of this case do not satisfy the requirements of ORS 137.123(4)(a) or (b) for imposing consecutive sentences. See State v. Reeves, 134 Or.App. 38, 41-42, 894 P.2d 1170, rev. den., 321 Or. 284, 896 P.2d 1213 (1995) (consecutive sentencing decision reviewed where adequacy of trial court's find......
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State v. Quintero
...Or. 433, 446, 887 P.2d 774 (1994),6 we conclude that the sentencing error is not unreviewable under ORS 138.222(2). See State v. Reeves, 134 Or.App. 38, 40, 894 P.2d 1170, rev. den. 321 Or. 284, 896 P.2d 1213 (1995) (because defendant did not specifically accede to departure sentence or agr......