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BM 57 and ORS 138.083 motions

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by: Ryan • May 30, 2012 • no comments

Well, BM57 cases are brutal, aren't they?

What used to be somewhat true under the old REPO statutes is even more true now: the defendant's criminal history really trumps all other considerations in determining the defendant's sentence, even when treatment, for example, would be more effective at keeping the defendant from re-offending.

Of course, to makes things worse, a defendant with a long history of property crimes is almost certainly going to have a criminal history which is also artificially inflated. If he went to trial on a UUV/PSV before 2011,and he didn't win, odds are he's got a UUV and a PSV conviction on his record, even though he should only have a UUV conviction.

Or maybe a Forgery I and a Possession of a Forged Instrument. Or a few Felon in Possession convictions when, again, he should only have 1. Or two Rob IIs (one victim, two different theories). Or too many ID Thefts in a St v Mac Donald type situation.

If you are his current attorney, and his sentence will be impacted by an artificially inflated criminal history, not only can you do something about it, but you should. It doesn't take brains. It doesn't take flash. You just need to make a little bit of effort. And that something is to file ORS 138.083 motions under his old case numbers, and in those motions argue for retroactive merger, even if (1) it's too late to appeal, (2) too late for PCR and (3) we only recognize the legal error in retrospect. You might even want to seek appointment under the old case number.

See the following posts for further discussion: