480
Argued and submitted September 14, 2021; resubmitted January 25, decision
of Court of Appeals affirmed, case remanded to circuit court for further
proceedings March 31, 2022
STATE OF OREGON,
Petitioner on Review,
v.
DENNIS JAMES DAVIDSON,
Respondent on Review.
(CC 11C43121) (CA A165303) (SC S068231)
507 P3d 246
Defendant was sentenced to life in prison without the possibility of parole
under ORS 137.719 on his convictions for public indecency. The Oregon Supreme
Court held that that sentence was unconstitutionally disproportionate as applied
to his offenses. On remand, the trial court sentenced defendant to a total of
180 months in prison and lifetime post-prison supervision. The Court of Appeals
reversed, holding that the trial court was required to impose a sentence in conformity with Oregon’s felony sentencing guidelines and that the sentence that the
trial court imposed did not do so. Held: In permitting the trial court to impose a
departure from the sentence of life without the possibility of parole that is “authorized by the rules of the Oregon Criminal Justice Commission,” ORS 137.719(2)
requires the trial court to impose a sentence using the felony sentencing guidelines grid block as a starting point for the sentence and departing from there
based on findings of substantial and compelling reasons, as permitted under the
felony sentencing guidelines rules.
The decision of the Court of Appeals is affirmed. The case is remanded to the
circuit court for further proceedings.
On review from the Court of Appeals.*
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
Ernest G. Lannet, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the briefs for
respondent on review.
______________
* On appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 307
Or App 478,
478 P3d 570 (2020).
Cite as
369 Or 480 (2022) 481
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
NELSON, J.
The decision of the Court of Appeals is affirmed. The case
is remanded to the circuit court for further proceedings.
______________
… Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
482 State v. Davidson
NELSON, J.
In this case, defendant was sentenced to life without
the possibility of parole under ORS 137.719 on his convictions for public indecency, a Class C felony, because he had
been sentenced for felony sex crimes at least twice before
sentencing for the current crimes. This court held that that
sentence was unconstitutionally disproportionate as applied
to defendant’s offenses, and it remanded the case to the trial
court for resentencing. The trial court concluded on remand
that it was permitted to sentence defendant to any term of
imprisonment short of life imprisonment without the possibility of parole. The Court of Appeals reversed, holding that,
under ORS 137.719, in the circumstances, the trial court
was required to impose a departure sentence in conformity
with Oregon’s felony sentencing guidelines. We allowed the
state’s petition for review, and, for the reasons discussed
below, we affirm the decision of the Court of Appeals.
BACKGROUND
The facts relevant to our resolution of the legal
issue before us are brief. Defendant was convicted of two felony counts of public indecency under ORS 163.465 for exposing himself in a public park.1 Because defendant had two
prior felony convictions for public indecency and because the
original sentencing court found no ground for a downward
departure, defendant was sentenced to consecutive life sentences without the possibility of parole under ORS 137.719.
That statute provides, in relevant part:
“(1) The presumptive sentence for a sex crime that
is a felony is life imprisonment without the possibility of
release or parole if the defendant has been sentenced for
sex crimes that are felonies at least two times prior to the
current sentence.
“(2) The court may impose a sentence other than the
presumptive sentence provided by subsection (1) of this section if the court imposes a departure sentence authorized
by the rules of the Oregon Criminal Justice Commission
based upon findings of substantial and compelling reasons.”
1
Under ORS 163.465(2), public indecency is a Class A misdemeanor unless,
as here, the person has a prior conviction for public indecency, in which case it is
a Class C felony.
Cite as 369 Or 480 (2022) 483
On review, this court concluded that a sentence of life without the possibility of parole was unconstitutionally disproportionate as applied to defendant’s offenses, because defendant’s criminal history included no offense more serious than
public indecency and that history included no other conduct
demonstrating that defendant posed a “significant physical
danger to society.” State v. Davidson,
360 Or 370, 391,
380
P3d 963 (2016) (Davidson I). The court vacated the sentence
of life without the possibility of parole and remanded the
case to the trial court for resentencing.
On remand, the trial court held hearings to determine defendant’s new sentence in light of Davidson I. Before
the trial court, defendant argued that the court lacked
authority to sentence him under ORS 137.719(1), and,
because the original sentencing court had found no basis
for departure under ORS 137.719(2), the court on remand
also was precluded from sentencing him under that provision. According to defendant, that meant that the court was
required to sentence him under the sentencing guidelines.
The state, for its part, argued that, although this court in
Davidson I had held that a life sentence for defendant’s
crimes was unconstitutional, it did not otherwise limit
the sentence that the court could impose, and neither this
court’s decision in Davidson I nor the statute required the
court to impose a guidelines sentence. The state argued that
the trial court was authorized to and should impose a significant term of imprisonment short of life.
The trial court essentially agreed with the state,
concluding that ORS 137.719(1) did not apply to defendant’s case and that ORS 137.719(2) did not require it to
impose a guidelines sentence. The court reasoned that this
court’s determination in Davidson I that the presumptive
life sentence was unconstitutional as applied to defendant
was a “substantial and compelling” reason “to impose a
sentence other than the presumptive sentence” under ORS
137.719(2). It adopted the findings of the original sentencing
court: namely, that defendant was persistently involved in
the same type of offense, that defendant’s crimes involved
multiple victims, that defendant was on supervision at the
time of the crimes, that defendant’s prior incarceration had
not deterred his criminal activity, and that incarceration
484 State v. Davidson
was necessary for the public safety. Further, it observed
that a lengthy sentence was necessary to protect the public. Based on those factors, the court resentenced defendant
to 90 months’ incarceration on each count, to be served
consecutively—for a total term of imprisonment of 180
months—and to be followed by a lifetime term of post-prison
supervision.
Defendant appealed to the Court of Appeals, challenging those sentences and arguing that the sentencing
court lacked authority to impose a sentence of 180 months’
incarceration followed by lifetime post-prison supervision,
but pursuing a slightly different line of reasoning. Defendant
argued that ORS 137.719(1) authorizes only one sentence—a
presumptive life sentence—which this court held was
unconstitutional as applied to him; it does not authorize a
sentence of 180 months of incarceration and lifetime post-prison supervision. Therefore, he argued, he was required to
be sentenced under ORS 137.719(2), which, in his view, did
not authorize the sentence that the trial court imposed and,
instead, required the court to apply the sentencing guidelines rules, which would cap his sentence at 108 months and
which would not permit lifetime post-prison supervision.
The state responded that both subsections of ORS 137.719
authorized the trial court to impose the sentence that it did.
The Court of Appeals reversed. State v. Davidson,
307 Or App 478,
478 P3d 570 (2020) (Davidson II). The court
observed that the trial court had imposed defendant’s sentence under subsection (2), and, therefore, the court began
by considering the text and context of ORS 137.719(2). In
particular, the court examined the meaning of the phrase
“a departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons.” Based on its reading of
the text and context of that provision, the court stated that
it understood the “rules of the Oregon Criminal Justice
Commission” to include the felony sentencing guidelines
set out in chapter 213 of the Oregon Administrative Rules,
which establish presumptive sentences that a court must
generally impose, based on the defendant’s criminal history and the gravity of the offense, and permit the court to
depart from the presumptive sentence if it finds “substantial
Cite as
369 Or 480 (2022) 485
and compelling reasons” to do so. Davidson II,
307 Or App
at 485-88. From there, the court concluded that subsection
(2) authorizes the sentencing court to impose a departure
sentence that conforms to the sentencing guidelines, and
that the sentencing guidelines permit neither defendant’s
sentence of 180-months’ incarceration nor the imposition of
lifetime post-prison supervision in this case.
Id. at 496.
ANALYSIS
On review, the state reprises its arguments that the
sentence that the trial court imposed was authorized under
both ORS 137.719(1) and ORS 137.719(2). Before we begin
our consideration of the issues presented, a brief review of
the relevant statutes and regulations is helpful.
A sentence must be authorized by the governing
statute under which it is imposed. State v. Leathers, 271
Or 236, 240,
531 P2d 901 (1975) (“A sentence must be in
conformity with the governing statute; any nonconforming
sentence is void for lack of authority and thus totally without legal effect.”). When a court imposes a sentence that is
not in conformity with the governing statute, “ ‘it infringes
upon the power of the legislature to determine the manner
of punishment.’ ” State v. Speedis,
350 Or 424, 431,
256 P3d
1061 (2011) (quoting Leathers,
271 Or at 240).
As discussed, defendant initially was sentenced
under ORS 137.719(1), which makes the presumptive sentence for his crimes life in prison without the possibility of
parole. Subsection (2) permits the court to impose a sentence other than the presumptive sentence “if the court
imposes a departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon findings
of substantial and compelling reasons.” The parties dispute
precisely which rules the phrase “the rules of the Oregon
Criminal Justice Commission” refers to, but, in general, the
parties agree that the commission’s rules are commonly
known as the felony sentencing guidelines.2
2
As the court explained in Speedis, the legislature created the Oregon
Criminal Justice Commission to develop recommendations for providing greater
uniformity in sentencing. 350 Or at 427. In 1989, the commission promulgated
rules—sentencing guidelines—as administrative rules, which set presumptive
sentences for crimes based on their general seriousness and on the offender’s
486 State v. Davidson
The felony sentencing guidelines establish “grid
blocks” that prescribe a range of presumptive sentences for
virtually all crimes, depending on the seriousness of the
crime and the offender’s criminal history, and they provide other requirements for and limitations on sentences
and terms of post-prison supervision. The guidelines apply
to felony offenses, and they determine the sentence for any
offense not otherwise provided for by a statute that calls for
a longer sentence. ORS 137.669 (“The guidelines … shall
control the sentences for all crimes committed after the
effective date of such guidelines.); ORS 137.637 (“When a
determinate sentence of imprisonment is required or authorized by statute, the sentence imposed shall be the determinate sentence or the sentence as provided by the rules
of the Oregon Criminal Justice Commission, whichever
is longer.”); OAR 213-009-0001(1) (“If a mandatory prison
sentence is required or authorized by statute, the sentence
imposed shall be that determinate sentence or the sentence
under these rules[,] whichever is longer.”).
The state makes three principal arguments. The
first two are related: It argues that ORS 137.719(2) does not
mandate that a trial court that is permitted, or, as in this
case, required to depart from the presumptive life sentence
must impose a grid block sentence subject to OAR 213-008-
0003(2) (setting limit on duration of upward departure sentence), and it argues that, in any case, the upward departure maximums set out in OAR 213-008-0003(2) do not limit
downward departures under ORS 137.719(2). The state’s
third argument is that, in fact, the sentence that the trial
court imposed was authorized under ORS 137.719(1) and the
Oregon Constitution. We take the third argument first, as
we can easily dispose of it.
The state argues that it is undisputed that the trial
court had statutory authority to impose a sentence of life
without the possibility of parole; this court reversed his
sentence because it was unconstitutional as applied to him,
criminal history. Id. The sentencing guidelines and rules and any amendments
thereto are required to be submitted to the legislature for its approval. ORS
137.667(2). The legislature approved the guidelines in 1989, codifying them
and giving them the force of statutory law. Or Laws 1989, ch 790, § 87; State v.
Ferman-Velasco,
333 Or 422, 430,
41 P3d 404 (2002) (so explaining).
Cite as
369 Or 480 (2022) 487
and not because the statute itself was unlawful or void. The
state argues that, in that limited circumstance—where ORS
137.719(1) authorizes a sentence of life without the possibility
of parole but the constitution does not permit its imposition—
ORS 137.719(1) permits the trial court to impose any sentence short of life that is constitutionally permissible.
According to the state, ORS 137.719(1) makes life without
the possibility of parole the presumptive sentence, which, by
its very nature, may be raised or lowered depending on the
existence of aggravating and mitigating factors.
The state contends that ORS 137.719(2) identifies
one particular circumstance that permits the court to deviate from the presumptive sentence, namely, the presence of
aggravating or mitigating factors, but nothing in the statute suggests that subsection (2) provides the only permissible basis for departing. Here, the state argues, the trial
court found no mitigating factors militating in favor of a
downward departure; rather, the reason for the departure
was that the presumptive sentence is unconstitutional as
applied. Therefore, the state argues, the trial court was permitted to impose any sentence short of life that the constitution permits.
The state’s conclusion does not follow from its premise. ORS 137.719(1) provides for only one sentence—the presumptive sentence of life without the possibility of parole.
ORS 137.719(2) provides a mechanism for imposing a sentence other than the presumptive sentence when the court
finds substantial and compelling reasons to do so. Nothing
in either subsection (1) or (2) suggests that the unconstitutionality of a presumptive life sentence in the case of a particular defendant is not a “substantial and compelling reason” to depart, as that phrase is used in subsection (2), and
we agree with the trial court that it is.3 Moreover, nothing
in either subsection suggests that the legislature intended
to authorize the trial court to deviate from the presumptive
sentence without using the mechanism provided in subsection (2) when the reason for departure is the unconstitutionality of the presumptive sentence in a particular case. The
3
Indeed, the list of aggravating and mitigating departure factors set out in
OAR 213-008-0002 is expressly “nonexclusive.” OAR 213-008-0002(1).
488 State v. Davidson
state notes that the authority to impose a shorter sentence
if the constitution requires inheres in the concept of “presumptive sentence.” We agree, but the statute clearly provides the mechanism for doing so in ORS 137.719(2). There
is simply no support for the argument that ORS 137.719(1),
and not ORS 137.719(2), applies in this situation.
We turn to the state’s other arguments, which both
revolve around the proper interpretation of ORS 137.719(2),
which permits a sentence other than the presumptive sentence. As is our practice, in interpreting state statutes, we
use the familiar methodology set out in State v. Gaines, 346
Or 160, 171-72,
206 P3d 1042 (2009) to determine the legislature’s intent. We examine the text and context of the
statute, giving weight to any proffered legislative history
as appropriate.
Id. If the legislature’s intent still remains
unclear, we then turn to cannons of construction.
Id. For
convenience, we repeat the text of ORS 137.719(2):
“The court may impose a sentence other than the presumptive sentence provided by subsection (1) of this section
if the court imposes a departure sentence authorized by the
rules of the Oregon Criminal Justice Commission based
upon findings of substantial and compelling reasons.”
At the outset we observe that neither the term “presumptive sentence” nor the term “departure” is defined in the
statutes. The guidelines rules define the term “presumptive
sentence,” as “the sentence provided in a grid block for an
offender classified in that grid block by the combined effect
of the crime seriousness ranking of the current crime of
conviction and the offender’s criminal history or a sentence
designated as a presumptive sentence by statute.” OAR
213-003-0001(16). The term “presumptive sentence” in ORS
137.719(2) expressly refers to the sentence of life without the
possibility of parole provided in ORS 137.719(1). Thus, today,
the statutory presumptive sentence of life without the possibility of parole also is a “presumptive sentence” for purposes
of the guidelines rules. However, in 2001, when ORS 137.719
was enacted, the definition of “presumptive sentence” in the
guidelines rules did not refer to the statutory presumptive
sentence set out in ORS 137.719. OAR 213-003-0001(16)
(2001) provided:
Cite as 369 Or 480 (2022) 489
“ ‘Presumptive sentence’ means the sentence provided
in a grid block for an offender classified in that grid block
by the combined effect of the crime seriousness ranking of
the current crime of conviction and the offender’s criminal history or the sentence otherwise established in ORS
137.717.”
In 2001, the felony sentencing guidelines defined (and continue to define today) a “departure” sentence simply as “a
sentence … which is inconsistent with the presumptive
sentence for an offender.” OAR 213-003-0001(5). Therefore,
in 2001, the definition of “departure” in the rules referred
only to departures from grid block presumptive sentences
and statutory presumptive sentences under ORS 137.717.
As noted, ORS 137.719(2) permits the court to impose
“a departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons.” We agree with the state
that, given that, under the guidelines rules at the time that
the statute was enacted, the definition of “departure” in the
rules referred only to departures from grid block presumptive sentences, the legislature had to have intended that
the “departure” permitted in subsection (2) was a departure
from the presumptive sentence established in subsection (1),
and not a departure from the grid block sentence under the
guidelines.
In other words, at the time ORS 137.719 was enacted,
the terms “presumptive sentence” and “departure” as used
in the ORS 137.719 had different meanings than the identical terms as used in the felony sentencing guidelines rules.
That difference factors strongly in our understanding of the
legislature’s intent in enacting ORS 137.719(2).
Any departure sentence imposed under ORS
137.719(2) must be “authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons.” We already have stated
that we agree with the trial court that this court’s conclusion that the presumptive sentence is unconstitutional as
applied to defendant’s crimes is a substantial and compelling
reason to impose a departure sentence. Therefore, we are
left to determine what is meant by the phrase, “departure
490 State v. Davidson
sentence authorized by the rules of the Oregon Criminal
Justice Commission.”
We agree with the Court of Appeals that, by its plain
wording, that phrase provides that, to be valid, a departure
sentence must conform to the requirements of the “rules of
the Oregon Criminal Justice Commission.” Davidson II, 307
Or App at 485. As we have noted, the parties agree that that
phrase refers to the felony sentencing guidelines.
Nothing in ORS 137.719(2) expressly suggests that
some, but not all, of the felony sentencing guidelines rules
apply to a sentence under that subsection. In addition to
establishing presumptive sentences, the guidelines permit
a court to depart from the presumptive sentence if it finds
substantial and compelling reasons to do so. OAR 213-008-
0001. The departure rules contemplate both upward and
downward departures, OAR 213-008-0002 (setting out both
aggravating and mitigating factors), and they place limits
on the maximum sentences that may be imposed as upward
departures from the presumptive sentence. OAR 213-008-
0003(2) provides that
“[a] durational departure from a presumptive prison term
shall not total more than double the maximum duration of
the presumptive prison term. In no case may the sentence
exceed the statutory maximum indeterminate sentence
described in ORS 161.605.”
ORS 161.605, in turn, provides that the maximum term of
incarceration for Class C felonies, like defendant’s convictions for public indecency, is five years.
Moreover, those rules govern the imposition of terms
of post-prison supervision. In general, the duration of post-prison supervision is determined by the crime seriousness
category of the most serious crime of conviction. OAR 213-
005-0002(2). Departures on the duration of post-prison
supervision are not allowed. OAR 213-005-0002(1).
In requiring a departure sentence to be “authorized
by the rules of the Oregon Criminal Justice Commission,”
then, the plain text of ORS 137.719(2) suggests that any
sentence imposed under subsection (2) must conform to
all the felony sentencing guidelines rules, including those
Cite as 369 Or 480 (2022) 491
that establish a grid block sentence and those that place
maximum limits on sentences and post-prison supervision
imposed under the guidelines.
The state acknowledges that that is a plausible
interpretation of the statute, but it argues that there is
another plausible interpretation. The state asserts that the
words “departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon substantial and compelling reasons” more likely means only that
the departure must be authorized by the rules of the Oregon
Criminal Justice Commission that require findings of substantial and compelling reasons. And, the state asserts,
there are only two such felony sentencing guidelines rules:
ORS 213-008-0001, which requires imposition of the presumptive sentence “unless the judge finds substantial and
compelling reasons to impose a departure,” and OAR 213-
008-0002, which provides a “nonexclusive list of mitigating
and aggravating factors [that] may be considered in determining whether substantial and compelling reasons for a
departure exist.” Thus, the state explains, in providing for
a “departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon substantial and
compelling reasons,” the legislature intended to permit a
trial court to impose any sentence short of life without the
possibility of parole, so long as it complies with those two
rules and finds substantial and compelling reasons for the
departure.
The state contends that that interpretation makes
sense, because, under the guidelines, a court must impose
the presumptive sentence—in this case, life without the
possibility of parole—unless it finds substantial and compelling reasons to depart. Therefore, according to the state,
making such findings is “the fundamental prerequisite” for
imposing a departure sentence, and the phrase “a departure
sentence authorized by the rules of the Oregon Criminal
Justice Commission based upon findings of substantial and
compelling reasons” can plausibly be read to require only
that a downward departure adhere to the “core guidelines
rules” that the departure be supported by substantial and
compelling reasons. Under that interpretation, the state
asserts, the statute does not require compliance with any of
492 State v. Davidson
the felony sentencing guidelines rules limiting the duration
of a sentence, so long as the court makes findings on the
record of substantial and compelling reasons for the sentence imposed.
The state’s interpretation does not bear scrutiny.
For convenience, we repeat subsection (2) here:
“The court may impose a sentence other than the presumptive sentence provided by subsection (1) of this section
if the court imposes a departure sentence authorized by the
rules of the Oregon Criminal Justice Commission based
upon findings of substantial and compelling reasons.”
ORS 137.719(2). The phrase “departure sentence,” in context,
is a reference to the antecedent phrase, “a sentence other
than the presumptive sentence.” In that light, the phrase,
“a departure sentence authorized by the rules of the Oregon
Criminal Justice Commission” can best be understood as
providing simply that a sentence other than the presumptive sentence must conform, generally, to “the rules.” Rather
than providing that only the two felony sentencing guidelines rules pertaining to findings of substantial and compelling reasons apply to departures under that subsection, the
passage is better understood to suggests that the sentence
itself must conform generally to “the rules of the Oregon
Criminal Justice Commission.” And, indeed, the legislature
easily could have referenced the two rules the state points
to, or expressly stated that any departure sentence is permissible so long as the court finds substantial and compelling reasons to depart, if that is what it had intended.
And finally, although we can agree that findings
of substantial and compelling reasons to depart are, in the
state’s words, a “fundamental prerequisite” for a departure,
the fact that such findings are essential to the decision to
depart does not suggest that none of the other “rules of the
Oregon Criminal Justice Commission” applies once the court
has made those findings. Indeed, the very use of the phrase
“authorized by the rules” suggests the contrary. “Authorize”
means, among other things, to “permit by or as if by some
recognized or proper authority.” Webster’s Third New Int’l
Dictionary 146 (unabridged ed 2002). That suggests that
any sentence other than the presumptive sentence of life
Cite as 369 Or 480 (2022) 493
without the possibility of parole must be permitted by the
felony sentencing guidelines rules—all of them and not just
some of them.
Nonetheless, the state asserts that context supports
its interpretation. Specifically, the state points to two statutes, ORS 137.717 and ORS 137.712, in support of its position. As we will explain, neither statute assists the state.
ORS 137.717 provides for increased presumptive
sentences for certain repeat property offenders. See State v.
Klein, 352 Or 302, 309,
283 P3d 350 (2012) (a statute’s context includes “related statutes”). ORS 137.717 was enacted a
few years before the legislature enacted ORS 137.719, and,
like ORS 137.719, it provides for a presumptive sentence for
certain repeat offenses but gives the trial court discretion
to impose “a departure sentence authorized by the rules of
the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons.” Subsections (1)
through (3) set forth the presumptive sentences for various
property crimes. Subsection (4) provides:
“The court may impose a sentence other than the sentence provided by subsection (1) or (3) of this section if the
court imposes:
“(a) A longer term of incarceration that is otherwise
required or authorized by law; or
“(b) A departure sentence authorized by the rules of
the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons. Unless the law
or the rules of the Oregon Criminal Justice Commission
allow for imposition of a longer sentence, the maximum
departure allowed for a person sentenced under this subsection is double the presumptive sentence provided in subsection (1) or (3) of this section.”
ORS 137.717(4).4
The state argues that, importantly, ORS 137.717(4)
specifies an upper limit on any departure sentence—namely,
4
ORS 137.717 has been amended since its enactment, which we explain
below, but the operative wording in subsection (4)—“departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons”—is the same as that in place in 2001,
when the legislature enacted ORS 137.719. ORS 137.717(3)(b) (2001).
494 State v. Davidson
double the statutory presumptive sentence. It follows, according to the state, that ORS 137.717 provides for a departure
from a statutory presumptive sentence and not a departure
to a guidelines sentence. In other words, the state contends,
the inclusion of that wording—permitting in some circumstances a sentence that deviates from the guidelines—
demonstrates that the legislature did not intend the phrase,
“departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons,” to refer to a departure
from the statutory presumptive sentence to “an ordinary
guidelines sentence.” The state asserts that, instead, the
legislature understood the phrase to refer to any departure
from the statutory presumptive sentence that is justified by
substantial and compelling reasons.
The state notes that ORS 137.719 does not contain
a similar maximum limit on departure sentences, but, it
explains, such a limit is unnecessary in the context of ORS
137.719, because the presumptive sentence for repeated sexual offenses is life without the possibility of parole; only a
downward departure is available. Nonetheless, according to
the state, in using the identical wording in ORS 137.719(2)
as is used in ORS 137.717(4), it can be assumed that the legislature meant the same thing, and that, the state contends,
is that both statutes permit any sentence that is justified by
substantial and compelling reasons and that neither statute
requires a departure to a guidelines sentence.
Again, the state’s conclusion does not follow from
its premise. First, a “departure from a presumptive sentence” under ORS 137.717 is not inherently incompatible
with a “departure to an ordinary guidelines sentence.” ORS
137.717(4) permits departures from the statutory presumptive sentence and, in requiring that those departure sentences be “authorized by the rules of the Oregon Criminal
Justice Commission,” as we have said, the statute can be
read as generally requiring that any departure sentence
conform to the guidelines rules. Neither the fact that ORS
137.717(4) imposes an upper limit on departure sentences
that references the statute and not the guidelines, nor anything else in that subsection or in ORS 137.717, suggests in
any way that only the guidelines rules requiring the court
Cite as 369 Or 480 (2022) 495
to find substantial and compelling reasons to depart apply
to the determination of an appropriate departure sentence.
Indeed, in focusing on the statute’s express upper
limit on departure sentences, the state ignores that the
legislature amended ORS 137.717 to clarify that, in providing for a “departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon findings
of substantial and compelling reasons,” it intended to permit
downward departures, presumably to a grid block sentence
if that was appropriate. The legislature viewed that clarification as necessary after the 1999 Court of Appeals decision
in State v. Bagley, 158 Or App 589,
976 P2d 75 (1999).
In Bagley, the defendant had been convicted of
unauthorized use of a vehicle and was subject to a 13-month
prison sentence under ORS 137.717(1)(b) (1997), due to his
prior convictions. That statute provided that “the court
shall sentence the person to a term of at least 13 months of
incarceration” if the person had a certain criminal history.
The sentencing court imposed an 18-month sentence under
ORS 137.717(3)(b) (1997) after finding the existence of one
aggravating factor. ORS 137.717(3) (1997) provided:
“The court may impose a sentence other than the sentence provided by subsection (1) of this section if the court
imposes:
“(a) A longer term of incarceration that is otherwise
required or authorized by law; or
“(b) A departure sentence authorized by the rules of
the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons.”
In imposing the defendant’s sentences, the trial court interpreted that statute in the same way that the state advocates today: that is, the trial court concluded that it was
not required to consult the felony sentencing guidelines in
departing from the statutory presumptive sentence and that
it could impose any constitutional sentence longer than the
presumptive guidelines sentence.
The defendant appealed, arguing that “a departure
sentence authorized by the rules of the Oregon Criminal
Justice Commission” meant a sentence under the guidelines.
496 State v. Davidson
Because ORS 137.717(1)(b) (1997) required the court to
impose a sentence of “at least 13 months of incarceration,”
the parties and the court presumed that the departure
provisions in ORS 137.717(3) (1997) were available only if
the court were imposing a longer sentence than provided
in ORS 137.717(1)(b) (1997)—in other words, the parties
and the court effectively viewed the sentences identified in
the statute as mandatory minimum sentences and not as
presumptive sentences. With that understanding in mind,
the defendant argued that, under applicable guidelines
rules, the trial court was permitted to sentence him to an
18-month term of incarceration only if it had found two
aggravating factors. OAR 213-008-0005(3) (“Any sentence
inconsistent with the provisions of this rule shall constitute
an additional departure and shall require substantial and
compelling reasons independent of the reasons given for the
dispositional departure.”).
The Court of Appeals agreed with the defendant. It
stated that the phrase “authorized by the rules of the Oregon
Criminal Justice Commission” “simply refers the court to
the sentencing guidelines already in existence, with its own
complete set of rules and interpretations.” Bagley, 158 Or
App at 595. The court held that a sentencing court imposing
a sentence under ORS 137.717(3)(b) (1997) must “revert to
the guidelines if they allow a sentence longer than that prescribed by subsection (1)” and that the 18-month sentence
that the trial court imposed was unlawful in this particular
case, because it did not comply with the felony sentencing
guidelines rules that required the court to find two separate
aggravating factors.
Id. at 595-96.
Within weeks of the Court of Appeals deciding
Bagley, the House Judiciary Committee noted that the Court
of Appeals’ interpretation of ORS 137.717 (1997) was inconsistent with some committee members’ views of how that
statute should operate. Specifically, those committee members believed that the legislature had intended that the statute would establish presumptive sentences and not mandatory minimum sentences, and, thus, that it would allow for
both upward and downward departures. House Committee
on Judiciary, Criminal Legislative Assembly, Mar 2, 1999,
Tape 62, Side A (comments of Legislative Counsel Lemman
Cite as 369 Or 480 (2022) 497
confirming to Chairman Mannix that ORS 137.717 (1999)
“was not a mandatory minimum sentence of 13-19 months”
and that “[t]he legislature specifically allowed both upward
and downward departures”). Mannix asked Lemman to
“offer language to reestablish that legislative intent,” and
Lemman agreed to do so.
Id.
Ultimately, ORS 137.717 (1997) was amended in
1999 to clarify that the sentences set out in paragraph (1)(b)
were statutory presumptive sentences. It also added a second sentence to ORS 137.717(3)(b) (1997): “Unless the law or
the rules of the Oregon Criminal Justice Commission allow
for imposition of a longer sentence, the maximum departure
allowed for a person sentenced under this subsection is double the presumptive sentence provided in subsection (1) of
this section.” That is, after the 1999 amendment, the maximum departure sentence for repeat property crimes was
twice the statutory presumptive sentence (and not twice
the guidelines presumptive sentence) unless the guidelines
themselves or another statute allowed for a longer sentence.
In other words, the effect of the amendment was to require
that departure sentences conform to the requirements of
the felony sentencing guidelines, except that, in certain circumstances, a sentence longer than that authorized by the
guidelines would be permissible.5 The statute did not preclude the sentencing court from reverting to the guidelines
grid block when departing downward.
ORS 137.717 and its history show that the most
plausible interpretation of the phrase “departure sentence
authorized by the rules of the Oregon Criminal Justice
Commission” is that the legislature intended for the
5
That provision was necessary, because, at the time, the guidelines rules
defined the term “presumptive sentence” as a presumptive grid block sentence,
and, thus, the guidelines rules would not otherwise permit a sentence longer than
twice the grid block presumptive sentence. After the legislature enacted the 1999
amendments to ORS 137.717, the Oregon Criminal Justice Commission amended
the definition of “presumptive sentence” to include the sentence provided in ORS
137.717. OAR 213-003-0001(16) (defining “presumptive sentence” to mean grid
block sentence or “the sentence otherwise established in ORS 137.717”). Notably,
the legislature enacted ORS 137.719 only two years later, but the commission
did not change the definition of “presumptive sentence” to include presumptive
sentences under ORS 137.719. And, in any case, it almost goes without saying
that any change in the rules after the enactment of a statute has no effect on the
proper interpretation of the statute itself.
498 State v. Davidson
starting point for a downward departure sentence under
ORS 137.717(4) to be the grid block presumptive sentence
for the particular offense, with any departures from that
starting point conforming to all the other guidelines rules,
including any upper limits that the rules may require,
unless a statute specifically provides otherwise.
The state also points to ORS 137.712 as supporting context, but that statute does not help the state either.
That statute relates to ORS 137.700 and ORS 137.707, which
impose mandatory minimum sentences (not presumptive
sentences) for various enumerated offenses. ORS 137.712
provides exceptions to those mandatory minimums for
some offenses, permitting downward departures in certain
circumstances:
“[T]he court may impose a sentence according to the rules of
the Oregon Criminal Justice Commission that is less than
the minimum sentence that otherwise may be required
by ORS 137.700 or 137.707 if the court, on the record at
sentencing, makes the findings set forth in subsection (2)
of this section [(setting out specific findings required for
the departure)] and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice
Commission justifies the lesser sentence.”
ORS 137.712(1). In other words, the legislature authorized
a sentencing court to impose a guidelines sentence—“a sentence according to the rules of the Oregon Criminal Justice
Commission”—if a substantial and compelling reason justifies the departure and the court makes certain additional
findings.
The state asserts that that provision sets out a
“binary choice”: The court must either impose the mandatory minimum sentence or else it must impose “an ordinary
guidelines sentence according to the guidelines rules.” The
state then argues that that demonstrates that, if the legislature had wanted to establish that a guidelines sentence
is the only alternative to the presumptive sentence, it knew
how to say as much. In contrast to that “binary choice,”
the state concludes, ORS 137.719(2) provides more flexible
authority to impose a departure from the presumptive sentence as long as it makes the requisite findings.
Cite as 369 Or 480 (2022) 499
The difference in wording between ORS 137.712
and ORS 137.719 does not suggest a “binary choice” in one
instance but not in the other. ORS 137.712(1) permits the
court to impose a downward departure from the mandatory
minimum sentence—a sentence “less than the minimum”
sentence—“according to the rules of the Oregon Criminal
Justice Commission.” The state acknowledges that the
departure permitted in ORS 137.712(1) is a departure to
an “ordinary guidelines sentence.” The operative wording in ORS 137.712(1) is almost identical to the wording in
ORS 137.719(2). ORS 137.712(1) differs only in providing
expressly for only downward departures and in providing
that any departure sentence be “according to the rules of
the Oregon Criminal Justice Commission” in ORS 137.712,
rather than “authorized by” the rules, as is used in ORS
137.719. (Emphases added.) The state does not explain why
those minor differences in wording are significant and
require a different interpretation of ORS 137.719, and we
are not persuaded that they do.
We turn to the state’s remaining argument, that
the upward departure maximums in OAR 213-008-0003(2)
do not apply to downward departures from a statutory presumptive sentence. OAR 213-008-0003(2) provides:
“A durational departure from a presumptive prison
term shall not total more than double the maximum duration of the presumptive prison term. In no case may the
sentence exceed the statutory maximum indeterminate
sentence described in ORS 161.605.”
The state argues that nothing in that rule places any
constraint on downward departures. Moreover, the state
argues, the first sentence can have no meaningful application in this case, because defendant’s presumptive prison
term is life without the possibility of parole, and the second
sentence cannot apply either, because it employs a definite
article—the sentence—and therefore must refer to the departure sentence discussed in the first sentence. From there,
the state asserts that the rule’s text shows that the legislature intended it only to establish an upper limit on upward
departures and it thus would have no bearing on downward
departures from statutory presumptive sentences. As we
500 State v. Davidson
shall explain, for reasons already given, the state’s argument is unavailing.
As the state notes, because the legislature approved
the sentencing guidelines, their interpretation requires discerning the legislature’s intent, as with a statute. State v.
Dulfu, 363 Or 647, 656,
426 P3d 641 (2018). Thus, when we
interpret a sentencing guidelines rule, we apply the methodology for interpreting statutes set out in Gaines.
First, we observe that OAR 213-008-0003(2) concerns “durational departures,” which can be upward or
downward. Although the rule provides limits on upward
departures, nothing in the text of the rule precludes its
application to a downward departure under ORS 137.719(2).
Second, we observe that the wording of OAR 213-
008-0003(2) today is identical to the wording of that rule
in 2001. Then, as now, the phrase “durational departure”
was defined as “a sentence which is inconsistent with the
presumptive sentence as to a term of incarceration, term
of supervised probation or number of sanction units which
may be imposed as a condition of probation.” OAR 213-003-
0001(8) (2001). As we have already pointed out, in 2001,
when the legislature enacted ORS 137.719, the felony sentencing guidelines rules defined “presumptive sentence” as
a “sentence provided in a grid block for an offender … or
the sentence otherwise established in ORS 137.717.” OAR
213-003-0001(16) (2001). Therefore, in 2001, for purposes
of ORS 137.719, the limits set out in OAR 213-008-0003(2)
applied to upward departures from the presumptive grid
block sentence. It follows that, when the legislature enacted
ORS 137.719 in 2001, it would have understood that the limits on departures set out in OAR 213-008-0003(2) applied
to departures from a grid block sentence and not to departures from the presumptive sentence provided for in ORS
137.719(1).
That understanding of OAR 213-008-0003(2) is
consistent with our conclusion that the legislature intended
that departure sentences under ORS 137.719(2), must conform to the felony sentencing guidelines, under which the
sentencing grid block is the starting point for determining
an appropriate sentence.
Cite as 369 Or 480 (2022) 501
Finally, the state acknowledges that there is no helpful legislature history, but it argues that canons of construction support its interpretation of the statute. Specifically,
the state argues that requiring a sentencing court to use
the grid block presumptive sentence as a starting point for
determining an appropriate sentence under ORS 137.719
cannot be what the legislature intended, because that would
be an “absurd result.” See Pete’s Mountain Homeowners v.
Ore. Water Resources, 236 Or App 507, 522,
238 P3d 395
(2010) (“In the face of competing and not wholly implausible
constructions of a statute, when one construction would lead
to an absurd result and the other would not, we generally
favor the latter, under the assumption that the legislature
would not intend an absurd or impossible result.”). The state
argues that interpreting ORS 137.719(2) to require reversion
to a guidelines presumptive sentence as a starting point for
resentencing would be absurd or unreasonable, because the
legislature clearly intended to impose an extremely severe
punishment on repeat sexual offenders and applying all the
guidelines rules would result in a “categorically different,”
much shorter sentence.
We disagree that the difference in outcomes is
generally so stark as to be absurd. As this court noted in
Davidson I, in concluding that a sentence of life without the
possibility of parole is constitutionally disproportionate to
defendant’s offenses, most of the offenses that are punishable under ORS 137.719 are significantly more serious, and
would be subject to significantly lengthier terms of imprisonment under the guidelines, than the guidelines sentence
for defendant’s crimes:
“[U]nlike felony public indecency, most of the other felony
sex crimes that may result in the imposition of a true-life
sentence under ORS 137.719 involve nonconsensual sexual contact or sexual exploitation of child victims. A considerable number of those felonies (including first- and
second-degree rape, first-degree sexual abuse, unlawful
sexual penetration, sodomy, and kidnapping) carry mandatory minimum sentences of at least 70 months imprisonment. ORS 137.700(2). The remaining felonies are ranked
under the Oregon Sentencing Guidelines between categories 5 and 10, with the majority being in the higher
ranges. Presumptive sentences in those ranges can vary
502 State v. Davidson
from between probation and 60 months’ imprisonment for
offenders with no criminal history, to between 15 and 130
months’ imprisonment for offenders with extensive criminal histories.”
360 Or at 388 (footnote omitted). The stark difference
between the maximum guidelines sentence for defendant’s
crimes and the statutory presumptive sentence of life without the possibility of parole is precisely why this court concluded that the statutory presumptive sentence was unconstitutional. That does not make the imposition of a guidelines
sentence absurd in this case.
To summarize, we are unconvinced by the state’s
argument that, under ORS 137.719, a sentencing court
has authority to impose any sentence it deems appropriate, short of life without the possibility of parole, when it
finds substantial and compelling reasons to depart from the
statutory presumptive sentence. Based on our examination
of the text and context of that statute, we conclude that,
in ORS 137.719(2), the words “departure sentence” in the
phrase “departure sentence authorized by the rules of the
Oregon Criminal Justice Commission” refers to a departure
from the presumptive sentence of life without the possibility
of parole set out in ORS 137.719(1), but that the nonspecific
reference to “the rules” in that phrase is to all of the felony sentencing guidelines rules, including the sentencing
grid block and the rules placing limits on departures from
grid block sentences. And that is so because, when the legislature enacted ORS 137.719 in 2001, it would have understood that, when those rules used the phrase “presumptive
sentence,” that phrase referred to a grid block presumptive sentence and not to the statutory presumptive sentence set out in ORS 137.719(1), and, thus, the legislature
had to have intended that sentencing courts use the felony
sentencing guidelines grid block and departure rules and
limitations in determining an appropriate departure sentence. For those reasons, we conclude that the trial court
was required to impose a sentence authorized by the felony
sentencing guidelines, and it erred in failing to do so. On
remand, therefore, the trial court must impose a sentence
using the guidelines grid block as a starting point and
departing from there based on findings of substantial and
Cite as 369 Or 480 (2022) 503
compelling reasons, as permitted under the felony sentencing
guidelines rules.6
The decision of the Court of Appeals is affirmed. The
case is remanded to the circuit court for further proceedings.
6
Any term of post-prison supervision that the trial court imposes also must
conform to the requirements of the felony sentencing guidelines rules.
