Chapter 16
AN ACT
SB 258
Relating to sentencing; amending ORS 40.015, 136.280, 137.765, 137.767,
161.725 and 161.735 and sections 7 and 21, chapter 463, Oregon Laws 2005; and
repealing section 20, chapter 463, Oregon Laws 2005.
Be It Enacted by the People of
the State of
SECTION 1. Section 20, chapter 463,
SECTION 2. ORS 40.015, as amended by section 13, chapter
463, Oregon Laws 2005, and section 25, chapter 843, Oregon Laws 2005, is
amended to read:
40.015. (1) The
(a) A hearing or
mediation before a magistrate of the Oregon Tax Court as provided by ORS
305.501;
(b) The small claims
department of a circuit court as provided by ORS 46.415; and
(c) The small claims
department of a justice court as provided by ORS 55.080.
(2) The Oregon Evidence
Code applies generally to civil actions, suits and proceedings, criminal
actions and proceedings and to contempt proceedings except those in which the
court may act summarily.
(3) ORS 40.225 to 40.295
relating to privileges apply at all stages of all
actions, suits and proceedings.
(4) ORS 40.010 to 40.210
and 40.310 to 40.585 do not apply in the following situations:
(a) The determination of
questions of fact preliminary to admissibility of evidence when the issue is to
be determined by the court under ORS 40.030.
(b) Proceedings before
grand juries, except as required by ORS 132.320.
(c) Proceedings for
extradition, except as required by ORS 133.743 to 133.857.
(d) Sentencing
proceedings, except proceedings under ORS 138.012 and 163.150, [or] as required by ORS 137.090 or
proceedings under sections 2 to 7, chapter 463,
(e) Proceedings to
revoke probation, except as required by ORS 137.090.
(f) Issuance of warrants
of arrest, bench warrants or search warrants.
(g) Proceedings under
ORS chapter 135 relating to conditional release, security release, release on
personal recognizance, or preliminary hearings, subject to ORS 135.173.
(h) Proceedings to
determine proper disposition of a child in accordance with ORS 419B.325 (2) and
419C.400 (4).
(i) Proceedings under
ORS 813.210, 813.215, 813.220, 813.230, 813.250 and 813.255 to determine
whether a driving while under the influence of intoxicants diversion agreement
should be allowed or terminated.
SECTION 3. Section 7, chapter 463, Oregon Laws 2005, is
amended to read:
Sec.
7. (1) When an enhancement fact is tried to a jury, any question
relating to the enhancement fact shall be submitted to the jury.
(2) The state has the
burden of proving an enhancement fact beyond a reasonable doubt.
(3) An enhancement fact
that is tried to a jury is not proven unless:
(a) The number of jurors
who find that the state has met its burden of proof with regard to the
enhancement fact is equal to or greater than the number of jurors that was
required to find the defendant guilty of the crime; and
(b) Of the jurors who
find that the state has met its burden of proof, at least the minimum number of
jurors required by this subsection to prove an enhancement fact are also jurors
who found the defendant guilty of the crime or alternate jurors as provided
by section 4 (5), chapter 463, Oregon Laws 2005.
(4) An enhancement fact
that is tried to the court is not proven unless the court finds that the state
has met its burden of proof with regard to the enhancement fact.
(5) A finding relating
to an enhancement fact made by a jury during the trial or sentencing phase of a
criminal proceeding may not be reexamined by the court. Notwithstanding the
findings made by a jury relating to an enhancement fact, the court is not
required to impose an enhanced sentence.
SECTION 4. ORS 161.725, as amended by section 14, chapter
463, Oregon Laws 2005, is amended to read:
161.725. (1) Subject to
the provisions of ORS 161.737, the maximum term of an indeterminate sentence of
imprisonment for a dangerous offender is 30 years, if [the court finds that] because of the dangerousness of the defendant
an extended period of confined correctional treatment or custody is required
for the protection of the public and [if
it further finds, as provided in ORS 161.735, that] one or more of the
following grounds exist:
(a) The defendant is
being sentenced for a Class A felony[, and the court finds that] and
the defendant is suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or safety of another.
(b) The defendant is
being sentenced for a felony that seriously endangered the life or safety of
another, the defendant has been previously convicted of a felony not related to
the instant crime as a single criminal episode and [the court finds that] the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that seriously
endanger the life or safety of another.
(c) The defendant is
being sentenced for a felony that seriously endangered the life or safety of
another, the defendant has previously engaged in unlawful conduct not related
to the instant crime as a single criminal episode that seriously endangered the
life or safety of another and [the court
finds that] the defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the life or
safety of another.
[(2) Unless the parties stipulate otherwise, the state has the burden of
proving beyond a reasonable doubt that the felonies or unlawful conduct
referred to in subsection (1)(b) and (c) of this
section seriously endangered the life and safety of another.]
[(3)] (2) As used in this section, “previously
convicted of a felony” means:
(a)
Previous conviction of a felony in a court of this state;
(b) Previous conviction
in a court of the United States, other than a court-martial, of an offense
which at the time of conviction of the offense was and at the time of
conviction of the instant crime is punishable under the laws of the United
States by death or by imprisonment in a penitentiary, prison or similar institution
for a term of one year or more; or
(c) Previous conviction
by a general court-martial of the United States or in a court of any other
state or territory of the United States, or of the Commonwealth of Puerto Rico,
of an offense which at the time of conviction of the offense was punishable by
death or by imprisonment in a penitentiary, prison or similar institution for a
term of one year or more and which offense also at the time of conviction of
the instant crime would have been a felony if committed in this state.
[(4)] (3) As used in this section, “previous
conviction of a felony” does not include:
(a) An offense committed
when the defendant was less than 16 years of age;
(b) A conviction
rendered after the commission of the instant crime;
(c) A conviction that is
the defendant’s most recent conviction described in subsection [(3)] (2) of this section, and the
defendant was finally and unconditionally discharged from all resulting
imprisonment, probation or parole more than seven years before the commission
of the instant crime; or
(d) A conviction that
was by court-martial of an offense denounced only by military law and triable
only by court-martial.
[(5)] (4) As used in this section, “conviction” means an
adjudication of guilt upon a plea, verdict or finding in a criminal proceeding
in a court of competent jurisdiction, but does not include an adjudication
which has been expunged by pardon, reversed, set aside or otherwise rendered
nugatory.
SECTION 5. ORS 161.735, as amended by section 15, chapter
463, Oregon Laws 2005, is amended to read:
161.735. (1) Upon motion
of the district attorney, and if, in the opinion of the court, there is reason
to believe that the defendant falls within ORS 161.725, the court shall order a
presentence investigation and an examination by a psychiatrist or psychologist.
The court may appoint one or more qualified psychiatrists or psychologists to
examine the defendant in the local correctional facility.
(2) All costs connected
with the examination shall be paid by the state.
(3) The examination
performed pursuant to this section shall be completed within 30 days, subject
to additional extensions not exceeding 30 days on order of the court. Each
psychiatrist and psychologist appointed to examine a defendant under this
section shall file with the court a written report of findings and conclusions,
including an evaluation of whether the defendant is suffering from a severe
personality disorder indicating a propensity toward criminal activity.
(4) No statement made by
a defendant under this section or ORS 137.124 or 423.090 shall be used against
the defendant in any civil proceeding or in any other criminal proceeding.
(5) Upon receipt of the
examination and presentence reports the court shall set a time for a presentence
hearing, unless the district attorney and the defendant waive the hearing. At
the presentence hearing the district attorney and the defendant may question
any psychiatrist or psychologist who examined the defendant pursuant to this
section.
(6) If, after
considering [the presentence report, the
examination reports and] the evidence in the case or in the presentence
hearing, the jury or, if the defendant waives the right to a jury trial,
the court finds that the defendant comes within ORS 161.725, the court may
sentence the defendant as a dangerous offender.
(7) In determining
whether a defendant has been previously convicted of a felony for purposes of
ORS 161.725, the court shall consider as prima facie evidence of the previous
conviction:
(a) A copy of the
judicial record of the conviction which copy is authenticated under ORS 40.510;
(b) A copy of the
fingerprints of the subject of that conviction which copy is authenticated
under ORS 40.510; and
(c) Testimony that the
fingerprints of the subject of that conviction are those of the defendant.
(8) Subsection (7) of
this section does not prohibit proof of the previous conviction by any other
procedure.
(9) The facts
required to be found to sentence a defendant as a dangerous offender under this
section are enhancement facts, as defined in section 1, chapter 463, Oregon
Laws 2005, and sections 2 to 7, chapter 463, Oregon Laws 2005, apply to making
determinations of those facts.
SECTION 6. ORS 137.765, as amended by section 16, chapter
463, Oregon Laws 2005, is amended to read:
137.765. (1) As used in this section:
(a) “History of sexual
assault” means that a person has engaged in unlawful sexual conduct that:
(A) Was not committed as
part of the same criminal episode as the crime for which the person is
currently being sentenced; and
(B) Seriously endangered
the life or safety of another person or involved a victim under
12 years of age.
(b) “Sexually violent
dangerous offender” means a person who has psychopathic personality features,
sexually deviant arousal patterns or interests and a history of sexual assault
and [who the court finds] presents a
substantial probability of committing a crime listed in subsection (3) of this
section.
(2) Notwithstanding ORS
161.605, when a person is convicted of a crime listed in subsection (3) of this
section, in addition to any sentence of imprisonment required by law, a court
shall impose a period of post-prison supervision that extends for the life of
the person if:
(a) The person was 18
years of age or older at the time the person committed the crime; and
(b) The [court finds that the] person is a
sexually violent dangerous offender.
(3) The crimes to which
subsection (2) of this section applies are:
(a) Rape in the first
degree and sodomy in the first degree if the victim was:
(A) Subjected to
forcible compulsion by the person;
(B) Under 12 years of
age; or
(C) Incapable of consent
by reason of mental defect, mental incapacitation or physical helplessness;
(b) Unlawful sexual
penetration in the first degree; and
(c) An attempt to commit
a crime listed in paragraph (a) or (b) of this subsection.
SECTION 7. ORS 137.767, as amended by section 17, chapter
463, Oregon Laws 2005, is amended to read:
137.767. (1)(a) A court shall order a presentence investigation and an
examination of the defendant by a psychiatrist or psychologist upon motion of
the district attorney if:
(A) The defendant is
convicted of a crime listed in ORS 137.765 (3); and
(B) In the opinion of
the court, there is reason to believe that the defendant is a sexually violent
dangerous offender as defined in ORS 137.765.
(b) The court may
appoint one or more qualified psychiatrists or psychologists to examine the
defendant in the local correctional facility.
(2) The state shall pay
all costs connected with an examination under this section.
(3) The examination
performed pursuant to this section must be completed within 30 days if the
defendant is in custody or within 60 days if the defendant is not in custody.
The court may order extensions not exceeding 30 days. Each psychiatrist or
psychologist appointed to examine a defendant under this section shall file
with the court a written report of findings and conclusions, including an
evaluation of whether the defendant is predisposed to commit a crime listed in
ORS 137.765 (3) because the defendant has:
(a) Psychopathic
personality features; and
(b) Sexually deviant
arousal patterns or interests.
(4) No statement made by
a defendant under this section may be used against the defendant in any civil
proceeding or in any other criminal proceeding.
(5) Upon receipt of the
examination and presentence reports the court shall set a time for a sentence
hearing. At the sentence hearing the district attorney and the defendant may
question any psychiatrist or psychologist who examined the defendant pursuant
to this section.
(6) If, after
considering [the presentence report, the
examination reports and] the evidence in the case or in the sentence
hearing, the jury or, if the defendant waives the right to a jury trial,
the court finds that the defendant is a sexually violent dangerous offender,
the court shall sentence the defendant as provided in ORS 137.765.
[(7) Unless the parties stipulate otherwise, the state has the burden of
proving beyond a reasonable doubt that the person is a sexually violent
dangerous offender.]
(7) The fact that a
person is a sexually violent dangerous offender is an enhancement fact, as
defined in section 1, chapter 463, Oregon Laws 2005, and sections 2 to 7,
chapter 463, Oregon Laws 2005, apply to making a determination of the fact.
SECTION 8. ORS 136.280, as amended by section 19, chapter
463, Oregon Laws 2005, is amended to read:
136.280. If, before the
final submission of the case, any juror dies or is unable to perform the duty
because of illness or other cause which the court deems sufficient, the juror
shall be dismissed from the case. Except as provided by ORS
163.150, the court shall cause to be drawn the name of an alternate juror, who
shall then become a member of the jury as though the alternate juror had been
selected as one of the original jurors. Except as provided in section
4 (5), chapter 463,
SECTION 9. Section 21, chapter 463, Oregon Laws 2005, is
amended to read:
Sec.
21. Sections 1 to 7, chapter 463, Oregon Laws 2005, [of this 2005 Act] and the amendments to
ORS 40.015, 136.280, 137.765, 137.767, 161.725 and 161.735 by sections 8 to 12
and 18, chapter 463, Oregon Laws 2005, [of this 2005 Act] apply to:
(1) A criminal action
commencing on or after [the effective
date of this 2005 Act and before January 2, 2008] July 7, 2005;
(2) A criminal action
commencing prior to [the effective date
of this 2005 Act] July 7, 2005, in which a sentence has not been
imposed prior to [the effective date of
this 2005 Act] July 7, 2005; and
(3) A case that has been
remanded to a trial court that will result in resentencing for which a new
sentence has not been imposed prior to [the
effective date of this 2005 Act] July 7, 2005.
Approved by the Governor March 29, 2007
Filed in the office of Secretary of State March 29, 2007
Effective date January 1, 2008
__________