113 Or. App. 12 830 P.2d 601

Argued and submitted March 30,

convictions affirmed; remanded for resentencing May 13,

reconsideration denied July 1,

petition for review denied August 25, 1992 (314 Or 176)

STATE OF OREGON, Appellant, v. GLENN H. LUCAS, Respondent.

(91C-20165; CA A71394)

830 P2d 601

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Robert J. Thorbeck, Salem, argued the cause and filed the brief for respondent.

*13Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Durham, Judge.

JOSEPH, C. J.

*14JOSEPH, C. J.

The state appeals the sentences imposed after defendant pleaded guilty to sodomy in the first degree, ORS 163.405, and sexual abuse in the first degree. ORS 163.425. Defendant’s grid block for the sodomy conviction is 101, with a presumptive sentence of 58 to 60 months in prison. His grid block on the sexual abuse conviction is 81, with a presumptive sentence of 16 to 18 months in prison. The court sentenced him to 60 months in prison on the sodomy conviction and 18 months in prison on the sexual abuse conviction, to be served consecutively. It then suspended execution of the sentences and placed defendant on five years probation.

The state is correct that the court was without authority to sentence defendant to prison and then suspend execution of the sentence. For a felony committed after November 1,1989,1 the sentencing guidelines require execution of either a prison sentence or a sentence of probation. ORS 137.010(1); ORS 137.520; see Commentary, Oregon Sentencing Guidelines Implementation Manual 93 (1989). If the court’s intention was to impose a dispositional departure, it had to comply with the guidelines’ requirements. See OAR 253-05-009; OAR 253-05-008, see also OAR 253-05-006.2

*15Because the question is likely to arise on remand, we address the state’s argument that the court erred in considering defendant’s lack of any criminal history as a mitigating factor. But see n 2, supra. OAR 253-08-002(l)(a)(H) provides that a court may consider as a mitigating factor that

“[t]he offender’s criminal history indicates that the offender lived conviction-free within the community for a significant period of time preceding his or her current crime of conviction.”

The state argues that the commentary demonstrates that that factor was intended to apply only to a person with previous criminal convictions who had apparently rehabilitated himself. See Commentary, Oregon Sentencing Guidelines Implementation Manual 129 (1989). It contends that the court could not consider the factor here, because defendant’s criminal history is already recognized in the calculation of his grid block.

OAR 253-08-002(l)(a)(H), like the other mitigating factors, is neither exclusive nor mandatory. The rule does not preclude a court from considering that an offender has previously led a crime-free life.3 However, if the court finds that fact to be a substantial and compelling reason to support a departure, it must explain why that fact is so exceptional that imposition of the presumptive sentence, which is based in part on the criminal history, would not accomplish the guidelines’ purposes. State v. Wilson, supra n 2.

Convictions affirmed; remanded for resentencing.

State v. Lucas
113 Or. App. 12 830 P.2d 601

Case Details

Name
State v. Lucas
Decision Date
May 13, 1992
Citations

113 Or. App. 12

830 P.2d 601

Jurisdiction
Oregon

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