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State v. Bennett

Summarized by: 

Date Filed: 04-18-2012
Case #: A143290
Sercombe, J. for the Court; Ortega, P.J.; and Brewer, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/Publications/A143290.pdf

Criminal Procedure: In imposing an upward departure sentence, a court may consider the defendant’s conduct after the crime for which the defendant is being sentenced.

Defendant appealed from an upward departure sentence of 50 months imprisonment and 12 months post-prison supervision for a second-degree escape conviction. After escaping but before he was caught, Defendant committed a burglary. Defendant pled guilty to both the burglary and escape charges. The Defendant’s sentence would have been 25-30 months imprisonment for escape, but the trial court imposed an upward departure sentence because the burglary conviction was considered an aggravating factor. OAR 213-008-0001 allows a court to depart from a presumptive sentence when there are “substantial and compelling reasons” to do so. Although OAR 213-008-002(1) contains a list of aggravating and mitigating factors which do not contain the factor relied on by the trial court, the list is not exclusive and does not prohibit the court from considering the Defendant’s conduct after the offense. The Court held that a court may consider the Defendant’s conduct after the crime for which the Defendant is being sentenced in imposing a departure sentence. Affirmed.