72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
HA to B-Eng. SB 308
 
LC 1534/SB 308-B10
 
                       HOUSE AMENDMENTS TO
                   B-ENGROSSED SENATE BILL 308
 
            By COMMITTEE ON RULES AND PUBLIC AFFAIRS
 
                            August 25
 
  On page 1 of the printed B-engrossed bill, line 2, after the
second semicolon delete the rest of the line and insert 'amending
ORS 131.125, 135.815, 137.712, 137.719 and 411.990; and providing
for criminal sentence reduction that requires approval by a
two-thirds majority.'.
  On page 4, after line 22, insert:
  '  { +  SECTION 5. + } ORS 137.712 is amended to read:
  ' 137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when
a person is convicted of manslaughter in the second degree as
defined in ORS 163.125, assault in the second degree as defined
in ORS 163.175 (1)(b), kidnapping in the second degree as defined
in ORS 163.225, rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
ORS 163.408, sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A) or robbery in the second degree as defined in
ORS 164.405, the 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
and finds that a substantial and compelling reason under the
rules of the Oregon Criminal Justice Commission justifies the
lesser sentence.  When the court imposes a sentence under this
subsection, the person is eligible for a reduction in the
sentence as provided in ORS 421.121 and any other statute.
  ' (b) In order to make a dispositional departure under this
section, the court must make the following additional findings on
the record:
  ' (A) There exists a substantial and compelling reason not
relied upon in paragraph (a) of this subsection;
  ' (B) A sentence of probation will be more effective than a
prison term in reducing the risk of offender recidivism; and
  ' (C) A sentence of probation will better serve to protect
society.
  ' (2) A conviction is subject to subsection (1) of this section
only if the sentencing court finds on the record by a
preponderance of the evidence:
  ' (a) If the conviction is for manslaughter in the second
degree:
  ' (A) That the defendant is the mother or father of the victim;
  ' (B) That the death of the victim was the result of an injury
or illness that was not caused by the defendant;
  ' (C) That the defendant treated the injury or illness solely
by spiritual treatment in accordance with the religious beliefs
or practices of the defendant and based on a good faith belief
that spiritual treatment would bring about the victim's recovery
from the injury or illness;
  ' (D) That no other person previously under the defendant's
care has died or sustained significant physical injury as a
result of or despite the use of spiritual treatment, regardless
of whether the spiritual treatment was used alone or in
conjunction with medical care; and
  ' (E) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section or for
criminal mistreatment in the second degree.
  ' (b) If the conviction is for assault in the second degree:
  ' (A) That the victim was not physically injured by means of a
deadly weapon;
  ' (B) That the victim did not suffer a significant physical
injury; and
  ' (C) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  ' (c) If the conviction is for kidnapping in the second degree:
  ' (A) That the victim was at least 12 years of age at the time
the crime was committed; and
  ' (B) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  ' (d) If the conviction is for robbery in the second degree:
  ' (A) That the victim did not suffer a significant physical
injury;
  ' (B) That, if the defendant represented by words or conduct
that the defendant was armed with a dangerous weapon, the
representation did not reasonably put the victim in fear of
imminent significant physical injury;
  ' (C) That, if the defendant represented by words or conduct
that the defendant was armed with a deadly weapon, the
representation did not reasonably put the victim in fear of
imminent physical injury; and
  ' (D) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  ' (e) If the conviction is for rape in the second degree,
sodomy in the second degree or sexual abuse in the first degree:
  ' (A) That the victim was at least 12 years of age, but under
14 years of age, at the time of the offense;
  ' (B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
  ' (C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
  '  { - (D) That the defendant was no more than five years older
than the victim at the time of the offense; - }
  '  { - (E) - }  { +  (D) + } That the offense did not involve
sexual contact with any minor other than the victim; and
  '  { - (F) - }  { +  (E) + } That the victim's lack of consent
was due solely to incapacity to consent by reason of being under
18 years of age at the time of the offense.
  ' (f) If the conviction is for unlawful sexual penetration in
the second degree:
  ' (A) That the victim was 12 years of age or older at the time
of the offense;
  ' (B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
  ' (C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
  '  { - (D) That the defendant was no more than five years older
than the victim at the time of the offense; - }
  '  { - (E) - }  { +  (D) + } That the offense did not involve
sexual contact with any minor other than the victim;
  '  { - (F) - }  { +  (E) + } That the victim's lack of consent
was due solely to incapacity to consent by reason of being under
18 years of age at the time of the offense; and
 
  '  { - (G) - }  { +  (F) + } That the object used to commit the
unlawful sexual penetration was the hand or any part thereof of
the defendant.
  ' (3) In making the findings required by subsections (1) and
(2) of this section, the court may consider any evidence
presented at trial and may receive and consider any additional
relevant information offered by either party at sentencing.
  ' (4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B),
(d)(D), (e)(B) and (f)(B) of this section refer are:
  ' (a) A crime listed in ORS 137.700 (2) or 137.707 (4);
  ' (b) Escape in the first degree, as defined in ORS 162.165;
  ' (c) Aggravated murder, as defined in ORS 163.095;
  ' (d) Criminally negligent homicide, as defined in ORS 163.145;
  ' (e) Assault in the third degree, as defined in ORS 163.165;
  ' (f) Criminal mistreatment in the first degree, as defined in
ORS 163.205 (1)(b)(A);
  ' (g) Rape in the third degree, as defined in ORS 163.355;
  ' (h) Sodomy in the third degree, as defined in ORS 163.385;
  ' (i) Sexual abuse in the second degree, as defined in ORS
163.425;
  ' (j) Stalking, as defined in ORS 163.732;
  ' (k) Burglary in the first degree, as defined in ORS 164.225,
when it is classified as a person felony under the rules of the
Oregon Criminal Justice Commission;
  ' (L) Arson in the first degree, as defined in ORS 164.325;
  ' (m) Robbery in the third degree, as defined in ORS 164.395;
  ' (n) Intimidation in the first degree, as defined in ORS
166.165;
  ' (o) Promoting prostitution, as defined in ORS 167.012; and
  ' (p) An attempt or solicitation to commit any Class A or B
felony listed in paragraphs (a) to (L) of this subsection.
  ' (5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced
to probation under this section violates a condition of probation
by committing a new crime, the court shall revoke the probation
and impose the presumptive sentence of imprisonment under the
rules of the Oregon Criminal Justice Commission.
  ' (6) As used in this section:
  ' (a) 'Conviction' includes, but is not limited to:
  ' (A) A juvenile court adjudication finding a person within the
court's jurisdiction under ORS 419C.005, if the person was at
least 15 years of age at the time the person committed the
offense that brought the person within the jurisdiction of the
juvenile court.
  ' (B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in
subsection (4) of this section.
  ' (b) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime provided that the
prior conviction is based on a crime committed in a separate
criminal episode. 'Previous conviction' does not include a
conviction for a Class C felony, including an attempt or
solicitation to commit a Class B felony, or a misdemeanor, unless
the conviction was entered within the 10-year period immediately
preceding the date on which the current crime was committed.
  ' (c) 'Significant physical injury' means a physical injury
that:
  ' (A) Creates a risk of death that is not a remote risk;
  ' (B) Causes a serious and temporary disfigurement;
  ' (C) Causes a protracted disfigurement; or
  ' (D) Causes a prolonged impairment of health or the function
of any bodily organ.
  '  { +  SECTION 6. + }  { + (1) This section applies to
prosecutions for rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
 
ORS 163.408 or sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A) if:
  ' (a) The offense was committed on or after April 1, 1995, but
before the effective date of this 2003 Act; and
  ' (b) A sentence has been imposed before the effective date of
this 2003 Act.
  ' (2) Only upon joint written consent of the sentenced
defendant and the state, as represented by the district attorney
of the county of conviction, the court of conviction may
entertain, in accordance with ORS 137.712, a petition for a
resentencing hearing. The petition must allege facts sufficient
to establish a basis under ORS 137.712 for imposition of a
sentence less than the minimum sentence. The district attorney
may file a response either in support of or in opposition to the
petition.
  ' (3) When a petition is filed under subsection (2) of this
section, the sentencing court shall determine, based on the
defendant's petition and the response, if any, filed by the
district attorney, whether the defendant is eligible under ORS
137.712 for a sentence less than the minimum sentence and whether
a lesser sentence may be appropriate. If the court determines
that the defendant is eligible and that a lesser sentence may be
appropriate, the court may order a resentencing hearing,
otherwise the court shall enter an order denying the defendant's
petition.
  ' (4) If the court orders a resentencing hearing, the court
shall determine at the hearing, in accordance with ORS 137.712,
whether imposition of a lesser sentence is warranted. If the
court determines that a lesser sentence is warranted, it shall
state on the record the substantial and compelling reasons in
support of the lesser sentence, vacate the judgment, impose the
lesser sentence and enter an amended judgment. If the court
determines that a lesser sentence is not warranted, it shall
enter an order denying the defendant's petition. + }
  '  { +  SECTION 7. + }  { + (1) This section applies to
prosecutions for rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
ORS 163.408 or sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A) if:
  ' (a) The offense was committed on or after April 1, 1995, but
before the effective date of this 2003 Act; and
  ' (b) A sentence has not been imposed before the effective date
of this 2003 Act.
  ' (2) Only upon joint written consent of the convicted
defendant and the state, the court in which the prosecution of an
offense described in subsection (1) of this section is pending
may entertain a motion requesting that the defendant be sentenced
under ORS 137.712. The district attorney may file a response
either in support of or in opposition to the motion.
  ' (3) When a motion is filed under subsection (2) of this
section, the court shall determine whether the defendant is
eligible under ORS 137.712 for a sentence less than the minimum
sentence and whether a lesser sentence may be appropriate. If the
court determines that the defendant is eligible and that a lesser
sentence may be appropriate, the court may impose sentence as
provided in ORS 137.712. Otherwise the court shall enter an order
denying the motion. + }
  '  { +  SECTION 8. + }  { + The sentencing court retains
authority, irrespective of any notice of appeal after entry of
judgment of conviction, to modify its judgment and sentence to
reflect the results of a resentencing hearing ordered under
section 6 of this 2003 Act. If a sentencing court enters an
amended judgment under section 6 of this 2003 Act, the court
shall immediately forward a copy of the amended judgment to the
appellate court. + }
  '  { +  SECTION 9. + }  { + If any court holds that the
requirement of joint written consent by the state and defendant
required for the court to entertain a petition for resentencing
or a motion for alternate sentencing under section 6 or 7 of this
2003 Act is invalid, it is the intent of the Legislative Assembly
that the joint written consent requirement is nonseverable from
the other portions of sections 6, 7 and 8 of this 2003 Act and
sections 6, 7 and 8 of this 2003 Act shall be entirely
invalidated. + }
  '  { +  SECTION 10. + } ORS 137.719 is amended to read:
  ' 137.719. (1) { + (a) Except as otherwise provided in
paragraph (b) of this subsection, + } 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.
  '  { +  (b) The presumptive sentence for a sex crime that is a
Class A felony is life imprisonment without the possibility of
release or parole if the defendant:
  ' (A) Has a prior conviction for a sex crime that is a Class A
felony; and
  ' (B) Has served the sentence of imprisonment that was imposed
as a result of the prior conviction. + }
  ' (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.
  ' (3) For purposes of this section:
  ' (a) Sentences for two or more convictions that are imposed in
the same sentencing proceeding are considered to be one
sentence { + . + }   { - ; and - }
  ' (b) A prior sentence includes:
  ' (A) Sentences imposed before, on or after July 31, 2001; and
  ' (B) Sentences imposed by any other state or federal court for
comparable offenses.
  '  { +  (c) A prior conviction includes:
  ' (A) Convictions occurring before, on or after the effective
date of this 2003 Act; and
  ' (B) Convictions entered in any other state or federal court
for a comparable offense. + }
  ' (4) As used in this section, 'sex crime' has the meaning
given that term in ORS 181.594.
  '  { +  SECTION 11. + }  { + (1) A person commits the crime of
unlawful operation of an audiovisual recording device if the
person:
  ' (a) Knowingly operates an audiovisual recording device in a
facility where a motion picture is being exhibited; and
  ' (b) Has not obtained the consent of the owner or lessee of
the facility and the licensor of the motion picture.
  ' (2)(a) Except as otherwise provided in paragraph (b) of this
subsection, unlawful operation of an audiovisual recording device
is a Class A misdemeanor.
  ' (b) Unlawful operation of an audiovisual recording device is
a Class C felony if the person has a previous conviction for
unlawful operation of an audiovisual recording device.
  ' (3) Subsection (1) of this section does not apply to a police
officer in the discharge of official duties.
  ' (4) If an owner or lessee of a facility or an employee of the
owner or lessee has probable cause to believe that a person has
violated subsection (1) of this section, the owner, lessee or
employee may detain the person in a reasonable manner and for a
reasonable time while waiting for a police officer to arrive. If
the owner, lessee or employee, having probable cause to believe
that a person has violated subsection (1) of this section,
detains a person in regard thereto, and the person brings a civil
or criminal action against the owner, lessee or employee based
upon the detention, the probable cause is a defense to the
action, if the detention was done in a reasonable manner and for
a reasonable time.
  ' (5) As used in this section:
  ' (a) 'Audiovisual recording device' means a device that is
capable of recording or transmitting a copy of a motion picture
or any part of a motion picture.
  ' (b) 'Police officer' has the meaning given that term in ORS
181.610.
  ' (c) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime, provided that
the prior conviction is based on a crime committed in a separate
criminal episode. + } ' .
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