Can a Measure 11 Sentence Be Upward Departed?

This wikilog article is a draft, it was not published yet.

by: Abassos • April 23, 2015 • one comment

Question: My client is charged with Assault I. Is his maximum exposure with an upward departure:

• 180 months (twice the 90 month M11 sentence) or
• 130 months (twice his 10/H gridblock of 61-65 months)?

Answer from Michael Rees: 130 months. Only a guidelines, or presumptive, sentence may be upward departed.

OAR 213-008-0001 provides that the sentencing judge shall impose the presumptive sentence unless the judge “departs from the presumptive sentence.”

OAR 213-003-0001(16) says, "’Presumptive sentence’ means the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime seriousness ranking of the current crime of conviction and the offender's criminal history or a sentence designated as a presumptive sentence by statute.”

OAR 213-008-0003(2) says “A durational departure from a presumptive prison term shall not total more than double the maximum duration of the presumptive prison term.”

So, the sentencing guidelines provide for the presumptive (grid block) sentence and the departure maximum (double the grid block sentence), but make no reference to a departure sentence from a BM 11 sentence.

ORS 137.700(1) says "the court shall impose, and the person shall serve, at least the entire term of imprisonment listed in subsection (2) of this section." Subsection (2) refers to the sentences as "mandatory minimum sentences", not "presumptive sentences."

The upshot is that we have two types of sentences: mandatory minimums and presumptive sentences. Presumptive sentences can get upward departures, mandatory minimums cannot.

Added from the comments section:

"It's important to explain that State ex rel Huddleston v. Sawyer, 324 Or 597, 603, cert den, 522 US 994 (1997) expressly holds that 'Measure 11' sentences aren't presumptive sentences."

- Jess Barton

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Michael Rees is a felony attorney at the Metropolitan Public Defender.