REPO and the 200% Rule
by: Tbetz • April 12, 2011 • one comment
Suppose your client is a really good office creep burglar. So, when folks all go to the lunchroom, he lets himself into an office and has a look around. He steals checks, credit cards, and over $1,000 from the petty cash jar. He's also really good with computers, and quickly forwards some information to his personal email that could be used to defraud the business. On his way out of the building, he takes keys and a title to one of the company cars too, because he has a court date coming up and really doesn't want to be late.
Unfortunately, he is caught on the way out of the office and subsequently confesses to everything. He's on supervision for Burglary and ID Theft, and has more convictions for property crimes than you can count on two hands. When you meet with him he asks you to get him a "suspended sentence."
The DA has indicted Burglary II, several counts of ID Theft, Theft I, UUMV, and Felony Computer Crime. The DA is probably thinking he faces a maximum somewhere in the ballpark of 26 months x5. You may have difficulty getting the DA to agree to his request, but here's why his sentence should not exceed 54 months under the REPO statute (assuming departures).
OAR 213-012-0020(2) establishes the "200 percent rule"; it provides, in part:
"(b) The total incarceration term of the consecutive sentences, including the incarceration term for the primary offense, shall not exceed twice the maximum presumptive incarceration term or the prison term defined in OAR 213-008-0005(1) imposed pursuant to a dispositional departure of the primary sentence except by departure as provided by OAR 213-008-0007."
Problematically, State v. Young, 183 Or App 400 (2002), held that a prior version of the Repeat Property Offender statute (ORS 137.717) is not subject to the "200%" rule. However, in footnote 2, the Court notes that the statute at issue prescribed a "mandatory" penalty, whereas the current REPO statute is a "presumptive" sentence, but that "it is unneccessary to decide the effect of that statutory amendment on the issue presented here." The Young court goes on and on about how mandatory statutes outside the grid are not subject to sentencing OAR's. Whatever.
Today, a little gold nugget appeared in the form of State v. Cervantes-Avila, _____ Or App _____ (slip op. April 13, 2011). In that case, the defendant got sentenced to three consecutive terms: Rape 1 (100 months), Sodomy 1 (100 months) and UUW (gun minimum 60 months). He appealed and asserted the 60 month penalty violated the 200 percent rule. Well, the court affirmed, and said that the gun minimum is a mandatory sentence, so no 200% rule issues. The opinion's language, however, buttresses the argument that the 200% rule does in fact apply to ORS 137.717. The court reiterated that the 200% rule applies only to "consecutive sentences that involve presumptive or dispositional departure senteces." Mandatory out, presumptive in. Period.
If you're familiar with ORS 137.717 then you know the word presumptive is all over the thing, again and again. Even better are the departure rules associated with it. Subsection 3(b) says "A departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons the maximum departure allowed for a person sentenced under this subsection is double the presumptive sentence proivided in subsection (1) of this section." So, if it looks like the OARs and smells like the OARs, ought the OARs not apply?
Note that this whole discussion assumes this is one criminal episode. Ryan's all over the criminal episode issue. If we're talking about multiple criminal episodes or multiple victims then, well, it's more complicated.
Thad Betz is an attorney in the major felony section at MPD.
