Blog:Main/Persistent Involvement, Part 1 - Revision history

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I discuss a variety of challenges to [[Blog:Main/objections_Upward_Departures|upward departures here]]. If you've read them, you know that the validity of the aggravating factor of "on supervision" is currently under review with the Oregon Supreme Court in a case called'' St v. Speedis''. [Update: On June 30, 2011, the Supreme Court upheld the use of the nonenumerated enhancement factors, rejecting defense arguments that non enumerated enhancement factors violated due process and separation of powers. ''See State v. Speedis'', 350 Or 424 (2011).] It seems that's the most commonly alleged enhancement factor. Even if the non-enumerated argument loses at the Oregon Supreme Court, the back-up argument is that the aggravating factor must be "so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." For repeat offenders, being on some form of supervision at the time of the new offense is far from exceptional. If something is commonplace, it's not exceptional.

The next most common allegation is "persistent involvement." This post is part one of a discussion of persistent involvement, and why it isn't as easy to prove as the state usually assumes.

Oregon Administrative Rule 213-008-0002(1)(b)(D) states:

<blockquote>

''"(D) Persistent involvement in similar offenses or repetitive assaults. '''This factor may be cited when consecutive sentences are imposed only if the persistent involvement in similar offenses or repetitive assaults is unrelated to the current offense."''' [Emphasis added.]''

</blockquote>

In other words, crimes that are at all "related" to the crime being sentenced - and "related" is much broader than just about any other standard other than relevancy - cannot be used as a basis for finding "persistent involvement." More importantly, the COA has unambiguously held that the remaining "unrelated" offenses occurred prior to the current offense.

<blockquote>

''"As Bray makes clear, a finding of persistent involvement is predicated on a defendant having two or more '''prior '''convictions. Bray, 342 Ore at 724. The trial court's reliance on defendant's convictions in case number 20-03-05629 to demonstrate persistent involvement was erroneous because those convictions were for criminal conduct defendant committed after he committed the offenses in case number 20-03-20422A."''

</blockquote>

''[http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=227+Ore.+App.+369 State v. Flores]'', 227 Or App 369 (2009).[Emphasis added.]

There are a number of scenarios where the state would seek a finding of persistent involvement based on crimes that occurred after the incident date of the current offense. A defendant might have absconded from Oregon, committed similar crimes in Washington or California, and was brought back to Oregon to be sentenced on the original offense. Or a defendant could be sentenced on a number of indictments simultaneously, and the state would seek to use the offenses that occurred later in time to obtain a finding of persistent involvement. Either scenario runs afoul of the case law above.
{{wl-publish: 2011-04-15 21:00:00 -0700 | Ryan }}

← Older revision		Revision as of 19:06, August 9, 2013
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	In other words, crimes that are at all "related" to the crime being sentenced - and "related" is much broader than just about any other standard other than relevancy - cannot be used as a basis for finding "persistent involvement."		In other words, crimes that are at all "related" to the crime being sentenced - and "related" is much broader than just about any other standard other than relevancy - cannot be used as a basis for finding "persistent involvement."
−	{{wl-publish: 2011-04-15 21:00:00 -0700 \| Ryan }}	+	{{wl-publish: 2011-04-15 21:00:00 -0700 \| Ryan:Ryan Scott }}

← Older revision		Revision as of 02:06, December 21, 2012
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−	I discuss a variety of challenges to [[Blog:Main/~~objections_Upward_Departures~~\|upward departures here]]. If you've read them, you know that the validity of the aggravating factor of "on supervision" is currently under review with the Oregon Supreme Court in a case called'' St v. Speedis''. [Update: On June 30, 2011, the Supreme Court upheld the use of the nonenumerated enhancement factors, rejecting defense arguments that non enumerated enhancement factors violated due process and separation of powers. ''See State v. Speedis'', 350 Or 424 (2011).] It seems that's the most commonly alleged enhancement factor. Even if the non-enumerated argument loses at the Oregon Supreme Court, the back-up argument is that the aggravating factor must be "so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." For repeat offenders, being on some form of supervision at the time of the new offense is far from exceptional. If something is commonplace, it's not exceptional.	+	I discuss a variety of challenges to [[Blog:Main/Objections_to_Upward_Departures \| upward departures here]]. If you've read them, you know that the validity of the aggravating factor of "on supervision" is currently under review with the Oregon Supreme Court in a case called'' St v. Speedis''. [Update: On June 30, 2011, the Supreme Court upheld the use of the nonenumerated enhancement factors, rejecting defense arguments that non enumerated enhancement factors violated due process and separation of powers. ''See State v. Speedis'', 350 Or 424 (2011).] It seems that's the most commonly alleged enhancement factor. Even if the non-enumerated argument loses at the Oregon Supreme Court, the back-up argument is that the aggravating factor must be "so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." For repeat offenders, being on some form of supervision at the time of the new offense is far from exceptional. If something is commonplace, it's not exceptional.

	The next most common allegation is "persistent involvement." This post is part one of a discussion of persistent involvement, and why it isn't as easy to prove as the state usually assumes.		The next most common allegation is "persistent involvement." This post is part one of a discussion of persistent involvement, and why it isn't as easy to prove as the state usually assumes.

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 </blockquote>
-In other words, crimes that are at all "related" to the crime being sentenced - and "related" is much broader than just about any other standard other than relevancy - cannot be used as a basis for finding "persistent involvement." More importantly, the COA has unambiguously held that the remaining "unrelated" offenses occurred prior to the current offense.
+In other words, crimes that are at all "related" to the crime being sentenced - and "related" is much broader than just about any other standard other than relevancy - cannot be used as a basis for finding "persistent involvement."
-−
-<blockquote>
-−
-''"As Bray makes clear, a finding of persistent involvement is predicated on a defendant having two or more '''prior '''convictions. Bray, 342 Ore at 724. The trial court's reliance on defendant's convictions in case number 20-03-05629 to demonstrate persistent involvement was erroneous because those convictions were for criminal conduct defendant committed after he committed the offenses in case number 20-03-20422A."''
-−
-</blockquote>
-−
-''[http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=227+Ore.+App.+369 State v. Flores]'', 227 Or App 369 (2009).[Emphasis added.]
-−
-There are a number of scenarios where the state would seek a finding of persistent involvement based on crimes that occurred after the incident date of the current offense. A defendant might have absconded from Oregon, committed similar crimes in Washington or California, and was brought back to Oregon to be sentenced on the original offense. Or a defendant could be sentenced on a number of indictments simultaneously, and the state would seek to use the offenses that occurred later in time to obtain a finding of persistent involvement. Either scenario runs afoul of the case law above.
 {{wl-publish: 2011-04-15 21:00:00 -0700 | Ryan }}