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by: Ryan • January 3, 2011 • no comments

Updated: See this related post on the 200% rule and REPO sentences. Keep in mind that the key offense is the one that is run consecutively (i.e., second or later). It is that offense that can't be mandatory in order for the 200% rule to kick in. If the primary offense is mandatory, it would appear that's no obstacle to applying the 200% rule.

As you know, a single criminal episode is an essential predicate to merger, the 200% rule, the 400% rule, and shift-to-I. It also keeps the client's criminal history from re-constituting. And if it's one criminal episode and your client is not subject to a repeat property offender sentence for the first offense, he's not subject to it for any offense.

Many of these limitations on the maximum sentence were more valuable in the early days of the sentencing guidelines. M11 and some victim's rights legislation (that often has nothing to do with redressing a victim's injuries) have weakened the importance of a single criminal episode.

Weakened but not, by any means, eliminated. In many cases, it is still a hugely important issue, and if I had to guess, I'd say it's the most common reason for unlawfully high prison sentences.

I want to highlight one advantage of a finding of a single criminal episode. It involves the 200% rule, but in a way that I suspect is under-appreciated. The 200% rule limits - in the absence of an upward departure - the maximum sentence a defendant can get (on all counts) to 200% of the presumptive prison sentence of the primary offense, as long as there is only one criminal episode and no more than one actual victim. Neither M11 nor the gun minimum sentences are impaired by this rule.

But if the court wants to run a presumptive prison sentence consecutively to a M11 or gun minimum sentence, the 200% rule still applies. Note the following:

"Defendant's third assignment of error focuses on the court's failure to apply OAR 213-012-0020(2)(b), the so-called '200 percent rule,' when it imposed a 36-month sentence to run consecutively to defendant's 200-month Measure 11 sentence. 'Under that rule, no matter how many convictions arise out of a single case, if any of the sentences are imposed to run consecutively, the total incarceration term for all of the convictions combined may not exceed twice the maximum presumptive incarceration term for the primary offense, except by departure.' State v. Davis, 315 Or 484, 492, 847 P2d 834 (1993). The state concedes that the court should have applied the rule but urges us not to exercise our discretion to review the unpreserved claim of error because the court on remand would certainly find another way to impose the same amount of incarceration. Because we remand for resentencing based on the first assignment of error, we need not address the state's argument; the court will do what it will do.' State v. Lepierre.

In other words, if your client is convicted of UUW with a gun minimum and Burglary I from the same incident, and the state wants to impose 60 months on the UUW and a consecutive 36 months (under 9I) on the Burg I, it would violate the 200% rule, even though the 60 month sentence by itself would not. Your client's maximum sentence on both counts is probably 72 months (200% of 36 months). Still a lot of time, but two years better than the 96 months the state is asking for.