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by: Ryan • July 6, 2013 • no comments

The Oregon Supreme Court quietly denied review in State v. Simonson last week. That case was held in abeyance for quite awhile, more than a year, as the Supreme Court decided Ofodrinwa.

The COA in Simonson ruled that making Sex Abuse II a level-7 on the grid, when Rape III was a 6, was disproportionate. This holding would probably only apply when Sex Abuse II was based on age, not an actual lack of consent.

The state's response, aside from petitioning for review, has been to argue that Sex Abuse II is now a 6, eliminating the proportionality problem. Most judges, as far as I know, have rejected that analysis. Rather, they have agreed with the defense argument that the crime is now unranked, and the judge can make findings regarding where to rank it, between 1 and 6.

There is one more argument, one step further, which claims that the actual ranking is a jury question under Blakely. The COA gave short-shrift to that argument in a different context, but the logic seems unassailable.

I think the reason, in part, that the COA didn't give it much weight is that the COA -- in a variety of situations -- hasn't yet recognized that elevating the grid block is just as much a blakely issue as doubling the presumptive sentence via upward departure. When we break through that wall, as we will eventually, a lot of advantages will fall our way. Here's one, which could be used in any case involving the CDO factors or the gun minimum, but I don't know of anyone who has preserved it yet.