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When a Judge Imposes a Trial Tax: Is Candor the Only Real Sin?

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by: Ryan • March 28, 2012 • no comments

As usual, you can expect a post on this website that will summarize today's COA opinions. One of those opinions addresses the 400% rule, which was violated in a sentencing out of Marion County. The issue wasn't preserved, but the court chose to fix the error under the plain error doctrine. Nice work by appellate attorney Louis Miles in catching the error and briefing it.

But that legal issue aside, the opinion contains an amazing quote from the trial judge.

After hearing defendant's arguments about why he should not receive departure sentences, the court concluded: "I have adopted the State's recommendation, [defendant]. I have seen [the prosecutor] make offers to you that would have given you the opportunity to have much shorter sentences if you had taken the responsibility for your conduct. And because you have failed to do that, that is also part of the reason that I have sentenced you as I have."

There is a lot I could say about this but I'm largely going to defer comment for the time being. I would note that maybe the judge's candor should not be a surprise: we all take for granted an unspoken trial tax that maybe we -- defense attorneys, prosecutors and judges -- have forgotten that it is deeply offensive to punish someone for exercising their constitutional rights.

Anyway, aside from the moral and ethical issues involved, the case is going back for re-sentencing, and there are a number of legal challenges to upward departures that attorneys still need to make generally and will hopefully be made on this case this time around. The first one that comes to mind is the challenge that has existed as long as there have been sentencing guidelines: that regardless of whether an enhancement factor exists, the court must still find substantial and compelling reasons to upward depart.

Here's what I've written previously on this topic, in the context of the upward departure factor of "on supervision at the time of the offense":

Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. State v. Wilson, 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.") The Wilson Court explained that it would review the trial court's "explanation of why the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." [Emphasis added.] Question: how is being "on supervision" an exceptional fact that merits an upward departure? When was the last time that someone who was, for example, a repeat property offender wasn't on supervision at the time of the newest crime? If 75% of REPO defendants were on supervision, that's not exceptional. And the burden is on the state - and the judge - to show that the circumstances are - not just exceptional - so exceptional.

You can find other upward departure challenges on this website. Or you can write me. Just scan the upward departure notice you've been given and e-mail it to me.