149
Argued and submitted December 17, 2020; remanded for resentencing,
otherwise affirmed June 3; petition for review denied November 4, 2021
(368 Or 702)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JORDAN CHRISTIAN PHILLIPS,
Defendant-Appellant.
Yamhill County Circuit Court
17CR82673; A169187
490 P3d 180
Defendant appeals from a judgment of conviction for six counts of sexual
abuse in the first degree, ORS 163.427, involving several different underage victims. He argues that the trial court committed legal error by sentencing him for
a felony sexual offense without first receiving a presentence investigation report
(PSI), as required by ORS 144.791. The state responds that defendant waived his
right to a PSI, as permitted by the 2005 amendments to ORS 144.791. Held: The
trial court erred in sentencing defendant without a PSI. Because the PSI requirement protects society’s independent interest in ensuring responsible sentencing,
defendant cannot waive preparation of a PSI.
Remanded for resentencing; otherwise affirmed.
Ladd J. Wiles, Judge.
Shawn Wiley, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Rolf C. Moan, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Daniel Norris, Assistant Attorney General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Remanded for resentencing; otherwise affirmed.
150 State v. Phillips
KAMINS, J.
Defendant appeals from a judgment of conviction for
six counts of sexual abuse in the first degree, ORS 163.427,
involving several different underage victims. He raises multiple assignments of error, and we write to address one:
whether a trial court may impose a sentence for a felony
sexual offense without first receiving a presentence investigation report (PSI), as required by ORS 144.791.1 We agree
with defendant that the trial court erred in sentencing him
without a PSI and remand for resentencing.
Absent certain exceptions not applicable here, ORS
144.791(2) provides that a “sentencing court shall order a
presentence report if the defendant is convicted of a felony
sexual offense.” (Emphasis added.) In this case, the trial
court did order a PSI, but had not received it at the time
of sentencing. The court concluded that the act of ordering
the PSI met the statutory requirement and, accordingly, it
would be able to determine defendant’s sentence without
the information contained in the PSI. Defendant, citing the
Oregon Supreme Court’s decision in State v. Biles, contends
that sentencing a defendant without the statutorily required
PSI is legal error requiring resentencing. 287 Or 63, 68,
597
P2d 808 (1979). The state responds that Biles does not govern because that case addressed a previous version of the
statute.
In Biles, the Supreme Court evaluated the statutory predecessor to ORS 144.791, which provided that “[t]he
Corrections Division shall furnish a presentence report to
the sentencing court.” Id. (citing former ORS 144.790 (1977),
repealed by Or Laws 1995, ch 520, § 3 (emphasis added)).
Recognizing that the “[obligatory] language does not leave
the trial court discretion to dispense with” the PSI, the
court concluded that the use of a PSI was not optional. Id.
However, because the defendant had “expressly waived” a
PSI and sought to be sentenced in accordance with a negotiated plea agreement, the court went on to evaluate whether
the PSI requirement was a right of the defendant’s that could
be waived. Id. The court observed that the statutory scheme
for sentencing in criminal cases reflected a legislative intent
1
We reject defendant’s remaining assignments of error without discussion.
Cite as 312 Or App 149 (2021) 151
for the trial court to “make an independent determination
of an appropriate sentence, regardless of the interests of the
defendant or the district attorney.” Id. at 69.
Specifically, the statutory scheme granted the trial
court discretion to deviate from a negotiated plea or the
recommendation contained in the PSI as well as a requirement for the court to state the reasons for the sentence on
the record. Id. (citing ORS 137.120(2); former ORS 144.790
(1977); ORS 135.432). Those statutes “all point to the conclusion that the legislature intended full responsibility for
sentencing to lie with the court in the first instance.” Id.
The requirement of a PSI ensures that the trial judge will
have the information necessary to make a responsible decision, and the requirement that the trial court articulate the
reasons for the sentence ensures that the trial judge will go
through the reasoning processes necessary to make such a
decision. Id. at 69-70. Thus, “[t]he interest to be served by
requiring a presentence report and a statement of reasons
for the sentence is … not only protection of the defendant,
but protection of the general societal interest in responsible
sentencing.” Id. at 69.
As the state points out, the current iteration of the
statute requiring a PSI does not use identical language to
its predecessor. Compare former ORS 144.790 (1977) (“[T]he
Corrections Division shall furnish a presentence report to
the sentencing court.”) with ORS 144.791(2) (“[A] sentencing
court shall order a presentence report.”). However, the part
of the language that is unchanged is the obligatory nature
of the requirement to obtain a PSI. As Biles recognized, the
use of the obligatory language “shall” renders the statutory
edict mandatory. 287 Or at 68. Accordingly, the trial court
erred in failing to obtain the statutorily required PSI prior
to sentencing.
The state argues that we are not bound by Biles
because the statute has been amended in such a way that
the logic of Biles is no longer applicable.2 According to the
2
We disagree with the state’s suggestion that we must reject defendant’s
argument as unpreserved. The first thing defendant did during the sentencing
hearing was raise the fact that the PSI had not been completed. Counsel noted
that she “would be prepared” but that the PSI was not ready and she “believe[d]
that’s required by statute.” The state responded that it would “leave it up to the
152 State v. Phillips
state, the amendments reflect a legislative intent to make
the PSI “contingent … on the conduct and preferences
of the defendant, the state, and the sentencing court” and
therefore it is no longer mandatory. The exceptions that
the state points to—which the state acknowledges are not
relevant here—apply when the offense requires the imposition of a mandatory or presumptive prison sentence and no
departure is sought. ORS 144.791(2)(b), (c). Regardless of the
fact that defendant did seek a downward departure here,
meaning that the statute still obligates the preparation of
a PSI, the state contends that the existence of those exceptions indicates the legislature’s desire to allow for sufficient
flexibility that the PSI may be waived.
We disagree with the state. The logic of Biles is not
disturbed by an exception alleviating the requirement that
a trial court be informed by a PSI when imposing a mandatory minimum or presumptive sentence. Rather, that exception appears to recognize that a PSI is not useful when a
sentence is prescribed by law and no one seeks an alteration
of the prescription. Regardless of the precise purpose of
exceptions that are not applicable here, the mere existence
of those exceptions does not render Biles inapplicable. The
Biles court’s decision hinged upon the legislature’s recognition of a societal interest in the protection of “responsible
sentencing.” That conclusion stemmed from the interaction
of three statutes that set forth the trial court’s discretion to
deviate from a plea recommendation or deviate from a PSI
recommendation, and the requirement that the trial court
place the reasons for the sentence on record. The state does
not suggest that that statutory scheme has changed. We are
thus bound by the Supreme Court’s decision in Biles, and we
therefore conclude that the trial court erred in imposing a
sentence without a PSI.
Remanded for resentencing; otherwise affirmed.
court’s discretion.” Although, as the state points out, defendant did not object
again later when asked, neither the state nor defendant’s failure to sufficiently
object can dispense with the need to comply with a statutory requirement that
protects a societal interest. Rather, as Biles instructs, a defendant cannot waive
or even negotiate that societal interest away. 287 Or at 69-70.
