71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1283
House Bill 2384
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Changes certain mandatory minimum sentences into presumptive
sentences. Allows departures from presumptive sentences on
specified bases. Eliminates state's right to appeal decision that
defendant has not violated certain conditions of probation.
A BILL FOR AN ACT
Relating to sentencing; amending ORS 137.124, 137.700, 137.707,
138.060, 138.222, 161.610, 420.011 and 420A.203; repealing ORS
137.712 and sections 5, 6, 7 and 7a, chapter 852, Oregon Laws
1997; and providing for criminal sentence reduction that
requires approval by a two-thirds majority.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.700 is amended to read:
137.700. (1) When a { + court sentences a + } person
{ - is - } convicted of one of the offenses listed in
{ + paragraph (a) of this + } subsection
{ - (2)(a) of this section - } and the offense was committed
on or after April 1, 1995, or of one of the offenses listed in
{ + paragraph (b) of this + } subsection { - (2)(b) of this
section - } and the offense was committed on or after October 4,
1997, the { + presumptive sentences are: + } { - court shall
impose, and the person shall serve, at least the entire term of
imprisonment listed in subsection (2) of this section. The person
is not, during the service of the term of imprisonment, eligible
for release on post-prison supervision or any form of temporary
leave from custody. The person is not eligible for any reduction
in, or based on, the minimum sentence for any reason whatsoever
under ORS 421.121 or any other statute. The court may impose a
greater sentence if otherwise permitted by law, but may not
impose a lower sentence than the sentence specified in subsection
(2) of this section. - }
{ - (2) The offenses to which subsection (1) of this section
applies and the applicable mandatory minimum sentences are: - }
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)(A)Murder, as defined in
ORS 163.115..300 months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.09120 months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS
163.115.......90 months
(D) Manslaughter in the
first degree, as defined
in ORS 163.11120 months
(E) Manslaughter in the second
degree, as defined in
ORS 163.125...75 months
(F) Assault in the first
degree, as defined in
ORS 163.185...90 months
(G) Assault in the second
degree, as defined in
ORS 163.175...70 months
(H) Kidnapping in the first
degree, as defined
in ORS 163.23590 months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225...70 months
(J) Rape in the first degree,
as defined in
ORS 163.375..100 months
(K) Rape in the second degree,
as defined in
ORS 163.365...75 months
(L) Sodomy in the first degree,
as defined in
ORS 163.405..100 months
(M) Sodomy in the second degree,
as defined in
ORS 163.395...75 months
(N) Unlawful sexual penetration in
the first degree, as defined
in ORS 163.41100 months
(O) Unlawful sexual penetration in
the second degree, as defined
in ORS 163.40875 months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427...75 months
(Q) Robbery in the first degree,
as defined in ORS
164.415.......90 months
(R) Robbery in the second degree,
as defined in
ORS 164.405...70 months
(b)(A)Arson in the first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical injur90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670...70 months
(C) Compelling prostitution,
as defined in
ORS 167.017...70 months
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
{ + (2) 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. + }
SECTION 2. ORS 137.707 is amended to read:
137.707. (1)(a) Notwithstanding any other provision of law,
when a person charged with aggravated murder, as defined in ORS
163.095, or an offense listed in subsection { - (4)(a) - }
{ + (2)(a) + } of this section is 15, 16 or 17 years of age at
the time the offense is committed, and the offense is committed
on or after April 1, 1995, or when a person charged with an
offense listed in subsection { - (4)(b) - } { + (2)(b) + } of
this section is 15, 16 or 17 years of age at the time the offense
is committed, and the offense is committed on or after October 4,
1997, the person shall be prosecuted as an adult in criminal
court.
(b) A district attorney, the Attorney General or a juvenile
department counselor may not file in juvenile court a petition
alleging that a person has committed an act that, if committed by
an adult, would constitute aggravated murder or an offense listed
in subsection { - (4) - } { + (2) + } of this section if the
person was 15, 16 or 17 years of age at the time the act was
committed.
(2) When { + a court sentences + } a person charged under this
section { - is - } { + and + } convicted of an offense listed
in { + this + } subsection { + , the presumptive sentences
are: + } { - (4) of this section, the court shall impose at
least the presumptive term of imprisonment provided for the
offense in subsection (4) of this section. The court may impose a
greater presumptive term if otherwise permitted by law, but may
not impose a lesser term. The person is not, during the service
of the term of imprisonment, eligible for release on post-prison
supervision or any form of temporary leave from custody. The
person is not eligible for any reduction in, or based on, the
minimum sentence for any reason under ORS 421.121 or any other
provision of law. ORS 138.012, 163.105 and 163.150 apply to
sentencing a person prosecuted under this section and convicted
of aggravated murder under ORS 163.095 except that a person who
was under 18 years of age at the time the offense was committed
is not subject to a sentence of death. - }
{ - (3) The court shall commit the person to the legal and
physical custody of the Department of Corrections. - }
{ - (4) The offenses to which this section applies and the
presumptive sentences are: - }
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)(AMurder, as defined in
ORS 163.115.300 months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.0120 months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS
163.115......90 months
(D) Manslaughter in the
first degree, as defined
in ORS 163.1120 months
(E) Manslaughter in the
second degree, as defined
in ORS 163.1275 months
(F) Assault in the
first degree, as defined
in ORS 163.1890 months
(G) Assault in the
second degree, as
defined in
ORS 163.175..70 months
(H) Kidnapping in the first
degree, as defined in
ORS 163.235..90 months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225..70 months
(J) Rape in the first degree,
as defined in ORS
163.375.....100 months
(K) Rape in the second
degree, as defined in
ORS 163.365..75 months
(L) Sodomy in the first
degree, as defined in
ORS 163.405.100 months
(M) Sodomy in the second
degree, as defined in
ORS 163.395..75 months
(N) Unlawful sexual
penetration in the first
degree, as defined
in ORS 163.4100 months
(O) Unlawful sexual
penetration in the
second degree, as
defined in OR751months
(P) Sexual abuse in the
first degree, as
defined in
ORS 163.427..75 months
(Q) Robbery in the first
degree, as defined in
ORS 164.415..90 months
(R) Robbery in the second
degree, as defined in
ORS 164.405..70 months
(b)(AArson in the first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical inju90.months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670..70 months
(C) Compelling prostitution,
as defined in
ORS 167.017..70 months
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + (3) The court may impose a sentence other than the
sentence provided by subsection (2) 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.
(4) ORS 138.012, 163.105 and 163.150 apply to sentencing a
person prosecuted under this section and convicted of aggravated
murder under ORS 163.095 except that a person who was under 18
years of age at the time the offense was committed is not subject
to a sentence of death.
(5) The court shall commit the person to the legal and physical
custody of the Department of Corrections. + }
{ - (5) - } { + (6) + } If a person charged with an offense
under this section is found guilty of a lesser included offense
and the lesser included offense is:
(a) An offense listed in subsection { - (4) - } { + (2) + }
of this section, the court shall sentence the person as provided
in
{ - subsection (2) - } { + subsections (2) and (3) + } of
this section.
(b) Not an offense listed in subsection { - (4) - } { +
(2) + } of this section:
(A) But constitutes an offense for which waiver is authorized
under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain
jurisdiction or to transfer the case to juvenile court for
disposition. In determining whether to retain jurisdiction, the
court shall consider the criteria for waiver in ORS 419C.349. If
the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does
not retain jurisdiction, the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under
ORS 419C.349, the court may not sentence the person. The court
shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
{ - (6) - } { + (7) + } When a person is charged under this
section, other offenses based on the same act or transaction
shall be charged as separate counts in the same accusatory
instrument and consolidated for trial, whether or not the other
offenses are aggravated murder or offenses listed in subsection
{ - (4) - } { + (2) + } of this section. If it appears, upon
motion, that the state or the person charged is prejudiced by the
joinder and consolidation of offenses, the court may order an
election or separate trials of counts or provide whatever other
relief justice requires.
{ - (7)(a) - } { + (8)(a) + } If a person charged and tried
as provided in subsection { - (6) - } { + (7) + } of this
section is found guilty of aggravated murder or an offense listed
in subsection { - (4) - } { + (2) + } of this section and one
or more other offenses, the court shall impose the sentence for
aggravated murder or the offense listed in subsection
{ - (4) - } { + (2) + } of this section as provided in
{ - subsection (2) - } { + subsections (2) and (3) + } of this
section and shall impose sentences for the other offenses as
otherwise provided by law.
(b) If a person charged and tried as provided in subsection
{ - (6) - } { + (7) + } of this section is not found guilty
of aggravated murder or an offense listed in subsection
{ - (4) - } { + (2) + } of this section, but is found guilty
of one of the other charges that constitutes an offense for which
waiver is authorized under ORS 419C.349, the court, upon motion
of the district attorney, shall hold a hearing to determine
whether to retain jurisdiction or to transfer the case to
juvenile court for disposition. In determining whether to retain
jurisdiction, the court shall consider the criteria for waiver in
ORS 419C.349. If the court retains jurisdiction, the court shall
sentence the person as an adult under sentencing guidelines. If
the court does not retain jurisdiction, the court shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(C) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
SECTION 3. ORS 137.124 is amended to read:
137.124. (1) If the court imposes a sentence upon conviction of
a felony that includes a term of incarceration that exceeds 12
months:
(a) The court shall not designate the correctional facility in
which the defendant is to be confined but shall commit the
defendant to the legal and physical custody of the Department of
Corrections; and
(b) If the judgment provides that the term of incarceration be
served consecutively to a term of incarceration of 12 months or
less that was imposed in a previous proceeding by a court of this
state upon conviction of a felony, the defendant shall serve any
remaining part of the previously imposed term of incarceration in
the legal and physical custody of the Department of Corrections.
(2)(a) If the court imposes a sentence upon conviction of a
felony that includes a term of incarceration that is 12 months or
less, the court shall commit the defendant to the legal and
physical custody of the supervisory authority of the county in
which the crime of conviction occurred.
(b) Notwithstanding paragraph (a) of this subsection, when the
court imposes a sentence upon conviction of a felony that
includes a term of incarceration that is 12 months or less, the
court shall commit the defendant to the legal and physical
custody of the Department of Corrections if the court orders that
the term of incarceration be served consecutively to a term of
incarceration that exceeds 12 months that was imposed in a
previous proceeding or in the same proceeding by a court of this
state upon conviction of a felony.
(3) After assuming custody of the convicted person the
Department of Corrections may transfer inmates from one
correctional facility to another such facility for the purposes
of diagnosis and study, rehabilitation and treatment, as best
seems to fit the needs of the inmate and for the protection and
welfare of the community and the inmate.
(4) If the court imposes a sentence of imprisonment upon
conviction of a misdemeanor, it shall commit the defendant to the
custody of the supervisory authority of the county in which the
crime of conviction occurred.
(5)(a) When a person under 18 years of age at the time of
committing the offense and under 20 years of age at the time of
sentencing is committed to the Department of Corrections under
ORS 137.707, the Department of Corrections shall transfer the
physical custody of the person to the Oregon Youth Authority as
provided in ORS 420.011 if:
(A) The person will complete the sentence imposed before the
person attains 25 years of age; or
(B) The Department of Corrections and the Oregon Youth
Authority determine that, because of the person's age,
immaturity, mental or emotional condition or risk of physical
harm to the person, the person should not be incarcerated
initially in a Department of Corrections institution.
(b) A person placed in the custody of the Oregon Youth
Authority under this subsection shall be returned to the physical
custody of the Department of Corrections whenever the Director of
the Oregon Youth Authority, after consultation with the
Department of Corrections, determines that the conditions or
circumstances that warranted the transfer of custody under this
subsection are no longer present.
(6)(a) When a person under 18 years of age at the time of
committing the offense and under 20 years of age at the time of
sentencing is committed to the legal and physical custody of the
Department of Corrections or the supervisory authority of a
county following waiver under ORS 419C.349, 419C.352, 419C.364 or
419C.370 or sentencing under ORS 137.707 { - (5)(b)(A) or
(7)(b) or 137.712 - } { + (6)(b)(A) or (8)(b) + }, the
Department of Corrections or the supervisory authority of a
county shall transfer the person to the physical custody of the
Oregon Youth Authority for placement as provided in ORS 420.011
(3). The terms and conditions of the person's incarceration and
custody are governed by ORS 420A.200 to 420A.206.
(b) When a person under 16 years of age is waived under ORS
419C.349, 419C.352, 419C.364 or 419C.370 and subsequently is
sentenced to a term of imprisonment in the county jail, the
sheriff shall transfer the person to a youth correction facility
for physical custody as provided in ORS 420.011 (3).
(7) If the Director of the Oregon Youth Authority concurs in
the decision, the Department of Corrections or the supervisory
authority of a county shall transfer the physical custody of a
person committed to the Department of Corrections or the
supervisory authority of the county under subsection (1) or (2)
of this section to the Oregon Youth Authority as provided in ORS
420.011 (2) if:
(a) The person was at least 18 years of age but under 20 years
of age at the time of committing the felony for which the person
is being sentenced to a term of incarceration;
(b) The person is under 20 years of age at the time of
commitment to the Department of Corrections or the supervisory
authority of the county;
(c) The person has not been committed previously to the legal
and physical custody of the Department of Corrections or the
supervisory authority of a county;
(d) The person has not been convicted and sentenced to a term
of incarceration for the commission of a felony in any other
state;
(e) The person will complete the term of incarceration imposed
before the person attains 25 years of age;
(f) The person is likely in the foreseeable future to benefit
from the rehabilitative and treatment programs administered by
the Oregon Youth Authority;
(g) The person does not pose a substantial danger to Oregon
Youth Authority staff or persons in the custody of the Oregon
Youth Authority; and
(h) At the time of the proposed transfer, no more than 50
persons are in the physical custody of the Oregon Youth Authority
under this subsection.
(8) Notwithstanding the provisions of subsections (5)(a)(A) or
(7) of this section, the department or the supervisory authority
of a county may not transfer the physical custody of the person
under subsection (5)(a)(A) or (7) of this section if the Director
of the Oregon Youth Authority, after consultation with the
Department of Corrections or the supervisory authority of a
county, determines that, because of the person's age, mental or
emotional condition or risk of physical harm to other persons,
the person should not be incarcerated in a youth correction
facility.
SECTION 4. ORS 138.060 is amended to read:
138.060. The state may take an appeal from the circuit court to
the Court of Appeals from:
(1) An order made prior to trial dismissing or setting aside
the accusatory instrument;
(2) An order arresting the judgment;
(3) An order made prior to trial suppressing evidence;
(4) An order made prior to trial for the return or restoration
of things seized;
(5) A judgment of conviction based on the sentence as provided
in ORS 138.222;
{ - (6) An order in a probation revocation hearing finding
that a defendant who was sentenced to probation under ORS 137.712
has not violated a condition of probation by committing a new
crime; - }
{ - (7) - } { + (6) + } An order made after a guilty
finding dismissing or setting aside the accusatory instrument;
{ - (8) - } { + (7) + } An order granting a new trial; or
{ - (9) - } { + (8) + } An order dismissing an accusatory
instrument under ORS 136.130.
SECTION 5. ORS 138.222 is amended to read:
138.222. (1) Notwithstanding the provisions of ORS 138.040 and
138.050, a sentence imposed for a judgment of conviction entered
for a felony committed on or after November 1, 1989, may be
reviewed only as provided by this section.
(2) Except as otherwise provided in subsection (4)(c) of this
section, on appeal from a judgment of conviction entered for a
felony committed on or after November 1, 1989, the appellate
court shall not review:
(a) Any sentence that is within the presumptive sentence
prescribed by the rules of the Oregon Criminal Justice
Commission.
(b) A sentence of probation when the rules of the Oregon
Criminal Justice Commission prescribe a presumptive sentence of
imprisonment but allow a sentence of probation without departure.
(c) A sentence of imprisonment when the rules of the Oregon
Criminal Justice Commission prescribe a presumptive sentence of
imprisonment but allow a sentence of probation without departure.
(d) Any sentence resulting from a stipulated sentencing
agreement between the state and the defendant which the
sentencing court approves on the record.
(e) Except as authorized in subsections (3) and (4) of this
section, any other issue related to sentencing.
(3) In any appeal from a judgment of conviction imposing a
sentence that departs from the presumptive sentence prescribed by
the rules of the Oregon Criminal Justice Commission, sentence
review shall be limited to whether the sentencing court's
findings of fact and reasons justifying a departure from the
sentence prescribed by the rules of the Oregon Criminal Justice
Commission:
(a) Are supported by the evidence in the record; and
(b) Constitute substantial and compelling reasons for
departure.
(4) In any appeal, the appellate court may review a claim that:
(a) The sentencing court failed to comply with requirements of
law in imposing or failing to impose a sentence;
(b) The sentencing court erred in ranking the crime seriousness
classification of the current crime or in determining the
appropriate classification of a prior conviction or juvenile
adjudication for criminal history purposes; or
(c) The sentencing court erred in failing to impose a
{ - minimum - } { + presumptive + } sentence that is
prescribed by ORS 137.700 or 137.707.
(5) The appellate court may reverse or affirm the sentence. If
the appellate court concludes that the trial court's factual
findings are not supported by evidence in the record or do not
establish substantial and compelling reasons for a departure, it
shall remand the case to the trial court for resentencing. If the
appellate court determines that the sentencing court, in imposing
a sentence in the case, committed an error that requires
resentencing, the appellate court shall remand the entire case
for resentencing. The sentencing court may impose a new sentence
for any conviction in the remanded case.
(6) The appellate court shall issue a written opinion whenever
the judgment of the sentencing court is reversed and may issue a
written opinion in any other case when the appellate court
believes that a written opinion will provide guidance to
sentencing judges and others in implementing the sentencing
guidelines adopted by the Oregon Criminal Justice Commission
provided that the appellate courts may provide by rule for
summary disposition of cases arising under this section when no
substantial question is presented by the appeal.
(7) Either the state or the defendant may appeal a judgment of
conviction based on the sentence for a felony committed on or
after November 1, 1989, to the Court of Appeals subject to the
limitations of chapter 790, Oregon Laws 1989.
SECTION 6. ORS 161.610 is amended to read:
161.610. (1) As used in this section, 'firearm' means a weapon
which is designed to expel a projectile by the action of black
powder or smokeless powder.
(2) The use or threatened use of a firearm, whether operable or
inoperable, by a defendant during the commission of a felony may
be pleaded in the accusatory instrument and proved at trial as an
element in aggravation of the crime as provided in this section.
When a crime is so pleaded, the aggravated nature of the crime
may be indicated by adding the words 'with a firearm' to the
title of the offense. The unaggravated crime shall be considered
a lesser included offense.
(3) Notwithstanding the provisions of ORS 161.605 or 137.010
(3) and except as otherwise provided in subsection (6) of this
section, if a defendant is convicted of a felony having as an
element the defendant's use or threatened use of a firearm during
the commission of the crime, the court shall impose at least the
minimum term of imprisonment as provided in subsection (4) of
this section. Except as provided in ORS 144.122 and 144.126 and
subsection (5) of this section, in no case shall any person
punishable under this section become eligible for work release,
parole, temporary leave or terminal leave until the minimum term
of imprisonment is served, less a period of time equivalent to
any reduction of imprisonment granted for good time served or
time credits earned under ORS 421.121, nor shall the execution of
the sentence imposed upon such person be suspended by the court.
(4) The minimum terms of imprisonment for felonies having as an
element the defendant's use or threatened use of a firearm in the
commission of the crime shall be as follows:
(a) Except as provided in subsection (5) of this section, upon
the first conviction for such felony, five years, except that if
the firearm is a machine gun, short-barreled rifle,
short-barreled shotgun or is equipped with a firearms silencer,
the term of imprisonment shall be 10 years.
(b) Upon conviction for such felony committed after punishment
pursuant to paragraph (a) of this subsection, 10 years, except
that if the firearm is a machine gun, short-barreled rifle,
short-barreled shotgun or is equipped with a firearms silencer,
the term of imprisonment shall be 20 years.
(c) Upon conviction for such felony committed after
imprisonment pursuant to paragraph (b) of this subsection, 30
years.
(5) If it is the first time that the defendant is subject to
punishment under this section, rather than impose the sentence
otherwise required by subsection (4)(a) of this section, the
court may:
(a) For felonies committed prior to November 1, 1989, suspend
the execution of the sentence or impose a lesser term of
imprisonment, when the court expressly finds mitigating
circumstances justifying such lesser sentence and sets forth
those circumstances in its statement on sentencing; or
(b) For felonies committed on or after November 1, 1989, impose
a lesser sentence in accordance with the rules of the Oregon
Criminal Justice Commission.
(6) When a defendant who is convicted of a felony having as an
element the defendant's use or threatened use of a firearm during
the commission of the crime is a person who was waived from
juvenile court under ORS 137.707 { - (5)(b)(A) - } { +
(6)(b)(A) + }, 419C.349, 419C.352, 419C.364 or 419C.370, the
court is not required to impose a minimum term of imprisonment
under this section.
SECTION 7. ORS 420.011 is amended to read:
420.011. (1) Except as provided in subsections (2) and (3) of
this section, admissions to the youth correction facilities are
limited to youth offenders less than 19 years of age, found by
the juvenile court to have committed an act that if committed by
an adult would constitute aggravated murder, murder, a felony or
a Class A misdemeanor and placed in the legal custody of the
Oregon Youth Authority. A youth offender admitted to a youth
correction facility may not be transferred by administrative
process to any penal or correctional institution.
(2)(a) In addition to the persons placed in the legal custody
of the youth authority under ORS 419C.478 (1) or 419C.481, and
with the concurrence of the Director of the Oregon Youth
Authority or the director's designee, persons who are committed
to the Department of Corrections under ORS 137.124 and meet the
requirements of ORS 137.124 (5) or (7) may be temporarily
assigned to a youth correction facility as provided by ORS
137.124 (5) or (7). A person assigned on such a temporary basis
remains within the legal custody of the Department of Corrections
and such reassignment is subject to termination by the Director
of the Oregon Youth Authority by referring the person back to the
Department of Corrections as provided in paragraph (b) of this
subsection.
(b) After a person is transferred to the physical custody of
the youth authority under ORS 137.124 (5) or (7), the Director of
the Oregon Youth Authority may refer the person back to the
Department of Corrections for physical custody and placement if
the director, after consulting with the Department of
Corrections, determines that the person:
(A) Poses a substantial danger to youth authority staff or
persons in the custody of the youth authority; or
(B) Is not likely, in the foreseeable future, to benefit from
the rehabilitation and treatment programs administered by the
youth authority and is appropriate for placement in a Department
of Corrections institution.
(3) Any person under 18 years of age at the time of committing
the crime and under 20 years of age at the time of sentencing and
commitment who, after waiver under ORS 419C.349, 419C.352,
419C.364 or 419C.370 or sentencing under ORS 137.707
{ - (5)(b)(A) or (7)(b) or 137.712 - } { + (6)(b)(A) or
(8)(b) + }, is sentenced to a term of imprisonment in the custody
of the Department of Corrections, and any person under 16 years
of age who after waiver under ORS 419C.349, 419C.352, 419C.364 or
419C.370 or sentencing under ORS 137.707 { - (5)(b)(A) or
(7)(b) or 137.712 - } { + (6)(b)(A) or (8)(b) + } is sentenced
to a term of imprisonment in the county jail, shall be
temporarily assigned to a youth correction facility by the
Department of Corrections, or by the sheriff to whose custody the
person has been committed, pursuant to ORS 137.124 (6). The
director shall designate the appropriate youth correction
facility or schools for such assignment. A person assigned to a
youth correction facility under ORS 137.124 (6) and this
subsection remains within the legal custody of the Department of
Corrections or sheriff to whose custody the person was committed.
The assignment of such a person to the youth correction facility
is subject, when the person is 16 years of age or older, to
termination by the director by referring the person back to the
Department of Corrections or the sheriff to serve the balance of
the person's sentence. Assignment to a youth correction facility
pursuant to ORS 137.124 (6) and this subsection, if not
terminated earlier by the director, shall terminate upon the
person's attaining the age specified in ORS 420A.010 (5) setting
the age limits for which the Oregon Youth Authority may retain
legal and physical custody of the person, and the person shall be
referred to the Department of Corrections or the sheriff having
legal custody of the person to serve the balance of the person's
sentence.
(4) Whenever a person committed to the custody of the
Department of Corrections is temporarily assigned to a youth
correction facility pursuant to this section, the youth authority
shall have authority to provide such programs and treatment for
such person, and to adopt rules relating to conditions of
confinement at the youth correction facility, as the youth
authority determines are appropriate. However, the person shall
remain subject to laws and rules of the State Board of Parole and
Post-Prison Supervision relating to parole.
SECTION 8. ORS 420A.203 is amended to read:
420A.203. (1)(a) This section and ORS 420A.206 apply only to
persons who were under 18 years of age at the time of the
commission of the offense for which the persons were sentenced to
a term of imprisonment, who committed the offense on or after
June 30, 1995, and who were:
(A) Sentenced to a term of imprisonment of at least 24 months
following waiver under ORS 419C.349, 419C.352, 419C.364 or
419C.370; or
(B) Sentenced to a term of imprisonment of at least 24 months
under ORS 137.707 { - (5)(b)(A) or (7)(b) - } { + (6)(b)(A)
or (8)(b) + }.
(b) When a person described in paragraph (a) of this subsection
has served one-half of the sentence imposed, the sentencing court
shall determine what further commitment or disposition is
appropriate as provided in this section. As used in this
subsection and subsection (2) of this section, 'sentence imposed'
means the total period of mandatory incarceration imposed for all
convictions resulting from a single prosecution or criminal
proceeding not including any reduction in the sentence under ORS
421.121 or any other statute.
(2)(a) No more than 120 days and not less than 60 days before
the date on which a person has served one-half of the sentence
imposed, the Oregon Youth Authority or the Department of
Corrections, whichever has physical custody of the person, shall
file in the sentencing court a notice and request that the court
set a time and place for the hearing required under this section.
The youth authority or department shall serve the person with a
copy of the notice and request for hearing on or before the date
of filing.
(b) Upon receiving the notice and request for a hearing under
paragraph (a) of this subsection, the sentencing court shall
schedule a hearing for a date not more than 30 days after the
date on which the person will have served one-half of the
sentence imposed or such later date as is agreed upon by the
parties.
(c) The court shall notify the following of the time and place
of the hearing:
(A) The person and the person's parents;
(B) The records supervisor of the correctional institution in
which the person is incarcerated; and
(C) The district attorney who prosecuted the case.
(d) The court shall make reasonable efforts to notify the
following of the time and place of the hearing:
(A) The victim and the victim's parents or legal guardian; and
(B) Any other person who has filed a written request with the
court to be notified of any hearing concerning the transfer,
discharge or release of the person.
(3) In a hearing under this section:
(a) The person and the state are parties to the proceeding.
(b) The person has the right to appear with counsel. If the
person requests that the court appoint counsel and the court
determines that the person meets the eligibility standards of ORS
135.050, the court shall order that counsel be appointed.
(c) The district attorney represents the state.
(d) The court shall determine admissibility of evidence as if
the hearing were a sentencing proceeding.
(e) The court may consider, when relevant, written reports of
the Oregon Youth Authority, the Department of Corrections and
qualified experts, in addition to the testimony of
witnesses. Within a reasonable time before the hearing, as
determined by the court, the person must be given the opportunity
to examine all reports and other documents concerning the person
that the state, the Oregon Youth Authority or the Department of
Corrections intends to submit for consideration by the court at
the hearing.
(f) Except as otherwise provided by law or by order of the
court based on good cause, the person must be given access to the
records maintained in the person's case by the Oregon Youth
Authority and the Department of Corrections.
(g) The person may examine all of the witnesses called by the
state, may subpoena and call witnesses to testify on the person's
behalf and may present evidence and argument. The court may
permit witnesses to appear by telephone or other two-way
electronic communication device.
(h) The hearing must be recorded.
(i) The hearing and the record of the hearing are open to the
public.
(j) The question to be decided is which of the dispositions
provided in subsection (4) of this section should be ordered in
the case.
(k) The person has the burden of proving by clear and
convincing evidence that the person has been rehabilitated and
reformed, and if conditionally released, the person would not be
a threat to the safety of the victim, the victim's family or the
community and that the person would comply with the release
conditions.
(4)(a) At the conclusion of the hearing and after considering
and making findings regarding each of the factors in paragraph
(b) of this subsection, the court shall order one of the
following dispositions:
(A) Order that the person serve the entire remainder of the
sentence of imprisonment imposed, taking into account any
reduction in the sentence under ORS 421.121 or any other statute,
with the person's physical custody determined under ORS 137.124,
420.011 and 420A.200.
(B) Order that the person be conditionally released under ORS
420A.206 at such time as the court may order, if the court finds
that the person:
(i) Has been rehabilitated and reformed;
(ii) Is not a threat to the safety of the victim, the victim's
family or the community; and
(iii) Will comply with the conditions of release.
(b) In making the determination under this section, the court
shall consider:
(A) The experiences and character of the person before and
after commitment to the Oregon Youth Authority or the Department
of Corrections;
(B) The person's juvenile and criminal records;
(C) The person's mental, emotional and physical health;
(D) The gravity of the loss, damage or injury caused or
attempted, during or as part of the criminal act for which the
person was convicted and sentenced;
(E) The manner in which the person committed the criminal act
for which the person was convicted and sentenced;
(F) The person's efforts, participation and progress in
rehabilitation programs since the person's conviction;
(G) The results of any mental health or substance abuse
treatment;
(H) Whether the person demonstrates accountability and
responsibility for past and future conduct;
(I) Whether the person has made and will continue to make
restitution to the victim and the community;
(J) Whether the person will comply with and benefit from all
conditions that will be imposed if the person is conditionally
released;
(K) The safety of the victim, the victim's family and the
community;
(L) The recommendations of the district attorney, the Oregon
Youth Authority and the Department of Corrections; and
(M) Any other relevant factors or circumstances raised by the
state, the Oregon Youth Authority, the Department of Corrections
or the person.
(5) The court shall provide copies of its disposition order
under subsection (4) of this section to the parties, to the
records supervisor of the correctional institution in which the
person is incarcerated and to the manager of the
institution-based records office of the Department of
Corrections.
(6) The person or the state may appeal an order entered under
this section. On appeal, the appellate court's review is limited
to claims that:
(a) The disposition is not authorized under this section;
(b) The court failed to comply with the requirements of this
section in imposing the disposition; or
(c) The findings of the court are not supported by substantial
evidence in the record.
SECTION 9. { + ORS 137.712 and sections 5, 6, 7 and 7a,
chapter 852, Oregon Laws 1997, are repealed. + }
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