This post will make much more sense after you read today's sexual abuse II opinion, State v. Simonson. Also, portions of this post were taken from a memo by the truly excellent attorney Matthew McHenry.
In light of Simonson, Sex Abuse II that is based on the victim's age is no longer a 7 on the sentencing grid, because that would violate the proportionality clause. The OAR is void (but again, only when the crime is based on the victim's age). This means that Sex Abuse II is an unranked offense in those situations.
The Oregon Administrative Rules provide that:
Except for ORS 163.095-163.105 Aggravated Murder, when a person is convicted of any other felony which is omitted from the Crime Seriousness Scale, the sentencing judge shall determine the appropriate crime category for the current crime of conviction and shall state on the record the reasons for the offense classification. OAR 213-004-0004.
The Sixth Amendment prohibits the imposition of a sentence greater than the "statutory maximum" if that sentence is based on facts not admitted by the defendant or proven to a jury beyond a reasonable doubt. Blakely v. Washington, 124 S. Ct. 2531, 2536-38 (2004); State v. Dilts, 337 Or. 645, 651-52, 103 P.3d 95, 98-99 (2004). The "statutory maximum" is the maximum a court may impose "without any additional findings." Blakely, 124 S. Ct. at 2537 (emphasis in original). Moreover, under Oregon's mandatory sentencing guideline system, the "statutory maximum" is not the indeterminate maximum sentence allowed by ORS 161.605, but rather the presumptive sentence under the guidelines. Id.; Dilts, 337 Or. at 649, 103 P.3d at 97.
For unranked crimes such as racketeering, conspiracy or (now) sex abuse II, in order to determine the Crime Seriousness Category-and therefore the presumptive sentence under Oregon's guideline system-as required by OAR 213-004-0004, the court must make additional factual findings that are neither admitted by the defendant nor found by a jury beyond a reasonable doubt; this violates the holdings of Blakely and Dilts. State v. Young provides an example of the type of fact-finding trial courts are required to exercise in assigning Crime Seriousness categories to unranked crimes. 161 Or. App. 507, 513-14, 985 P.2d 835, 839 (1999). There, the trial court made "findings of fact" to support its assignment of a Crime Seriousness Category of 6 to the unranked offense of filing a false claim for health care payments. Id. These findings included, inter alia, that the defendant's conduct injured other patients, that the defendant lied under oath, that the defendant had a consistent pattern of deception dating back to 1989, that the defendant had been involved in other similar offenses, and that the defendant had committed multiple incidents of fraudulent billing. Id. These types of factual findings are the precise nature of those prohibited by Blakely and Dilts in imposing sentence. None of these findings were admitted by the defendant or proven to a jury beyond a reasonable doubt. See also State v. Rathbone, III, 110 Or. App. 419, 422, 823 P.2d 432, 434 (1991) (where in support of assigning a Crime Seriousness Category of 9 to a racketeering offense, the trial court found that defendant "had sold narcotics while under the influence of drugs and while in possession of loaded firearms").
Further, the Oregon Legislature has not authorized juries to make these factual determinations to assign a Crime Seriousness Category. Rather, the Oregon Administrative Rules require a judge to make such findings. OAR 213-004-0004.
In sum, without jury findings, the defendant could be no higher than a 1 on the sentencing guidelines. But the relevant OARs only permit a judge to make the findings. This Catch-22 should result in all sex abuse II convictions that are solely based on the age of the victim being a 1 on the grid.
 ORS 137.669 provides:
The guidelines adopted under ORS 137.667, together with any amendments, supplements or repealing provisions, shall control the sentences for all crimes committed after the effective date of such guidelines. Except as provided in ORS 137.637 and 137.671, the incarcerative guidelines and any other guidelines so designated by the Oregon Criminal Justice Commission shall be mandatory and constitute presumptive sentences.