Chapter 163 Oregon Laws 1999

Session Law

AN ACT

HB 2327

Relating to crime; creating new provisions; and amending ORS 135.055, 144.103, 144.107 and 161.735.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (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 2. When a person has been sentenced as a sexually violent dangerous offender under section 1 of this 1999 Act, the maximum period of local custody to which the State Board of Parole and Post-Prison Supervision or the local supervisory authority may sanction the offender for any violation of post-prison supervision is 180 days. Notwithstanding ORS 161.605, the sanction may be imposed repeatedly during the term of the post-prison supervision for subsequent post-prison supervision violations. However, the board or local supervisory authority may impose only a single sanction for all violations known to the board or local supervisory authority as of the date that the sanction is imposed.

SECTION 3. (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 section 1 (3) of this 1999 Act; 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 section 1 of this 1999 Act.

(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 section 1 (3) of this 1999 Act 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 on the sentence hearing, the court finds that the defendant is a sexually violent dangerous offender, the court shall sentence the defendant as provided in section 1 of this 1999 Act.

(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.

SECTION 4. (1) When a defendant is examined under section 3 of this 1999 Act, the defendant may retain a psychiatrist, psychologist or other expert to perform an examination on the defendant's behalf. A psychiatrist, psychologist or other expert retained by the defendant must be provided reasonable access to:

(a) The defendant for the purpose of the examination; and

(b) All relevant medical and psychological records and reports.

(2) If the defendant is indigent, the defendant may request approval and preauthorization of the payment of the expenses of a psychiatrist, psychologist or other expert as provided in ORS 135.055 (3).

SECTION 5. ORS 144.103 is amended to read:

144.103. Except as otherwise provided in section 1 of this 1999 Act, any person sentenced to a term of imprisonment for violating or attempting to violate ORS 163.375, 163.405, 163.408, 163.411, 163.425 or 163.427 shall serve a term of post-prison supervision that shall continue until the term of the post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation. Any costs incurred as a result of this section shall be paid by increased post-prison supervision fees under ORS 423.570.

SECTION 6. ORS 144.107 is amended to read:

144.107. (1) The State Board of Parole and Post-Prison Supervision and the Department of Corrections, in consultation with local supervisory authorities, shall jointly adopt rules under this section to establish sanctions and procedures to impose sanctions for a violation of the conditions of post-prison supervision for a person serving a term of post-prison supervision subject to subsections (2) and (3) of this section.

(2) The rules adopted under subsection (1) of this section apply only to a person serving a term of post-prison supervision for a felony committed on or after July 14, 1997.

(3) In addition to the limitation under subsection (2) of this section, the rules adopted under subsection (1) of this section apply only to a person serving a term of post-prison supervision:

(a) That follows the completion of a sentence to a term of imprisonment that exceeds 12 months;

(b) That is imposed for a felony that is classified as crime category 8, 9, 10 or 11 of the sentencing guidelines grid of the Oregon Criminal Justice Commission;

(d) That is imposed as part of a sentence as a dangerous offender under ORS 161.725 and 161.737; or

(e) That is subject to ORS 144.103.

(4) The board shall adopt rules under subsection (1) of this section that include, but need not be limited to, a sanction under ORS 144.108 of imprisonment in a correctional facility for a period that may exceed 12 months. The rules adopted by the board may not allow the imposition of more than 24 months of imprisonment as a sanction without a subsequent hearing to determine whether additional imprisonment is appropriate. A subsequent hearing must follow the same procedures as those used in an initial hearing under ORS 144.108.

(5) The rules adopted under subsection (1) of this section must provide that the total time served in Department of Corrections institutions by an offender who is sanctioned under the rules, including the time served on the initial sentence and all periods of incarceration served as sanctions in Department of Corrections institutions, may not exceed the greater of:

(a) The length of incarceration plus the length of post-prison supervision imposed by the court unless the offender was sentenced under section 1 of this 1999 Act; [or]

(b) A maximum term of imprisonment imposed by the court; or

(c) If the offender was sentenced under section 1 of this 1999 Act, the length of the maximum statutory indeterminate sentence for the crime of conviction.

(6) As used in this section, "Department of Corrections institutions" has the same meaning given that term in ORS 421.005.

SECTION 7. (1) No sooner than 10 years after a person sentenced under section 1 of this 1999 Act is released to post-prison supervision, the person may petition the sentencing court for a resentencing hearing requesting that the judgment be modified to terminate post-prison supervision. The district attorney of the county must be named and served as a respondent in the petition. The district attorney may file a response either in support of or in opposition to the petition.

(2) Upon filing the petition, the court may order an examination as provided in section 3 of this 1999 Act. If the court orders an examination and the petitioner is indigent, the court may appoint counsel for the petitioner, as provided in ORS 135.050, if the court determines that there are substantial or complex issues involved and the petitioner appears incapable of self-representation.

(3) The court shall review the petition and may hold a hearing on the petition. However, if the state opposes the petition, the court shall hold a hearing on the petition. In determining whether to amend the judgment, the court shall consider:

(a) The nature of the crime for which the petitioner was sentenced to lifetime post-prison supervision;

(b) The degree of violence involved in the crime;

(c) The age of the victim;

(d) The petitioner's prior history of sexual assault;

(e) Whether the petitioner continues to have psychopathic personality features or sexually deviant arousal patterns or interests;

(f) Other criminal and relevant noncriminal behavior of the petitioner before and after conviction;

(g) The period of time during which the petitioner has not reoffended;

(h) Whether the petitioner has successfully completed a court-approved sex offender treatment program; and

(i) Any other relevant factors.

(4) If the court finds by clear and convincing evidence that the petitioner does not present a substantial probability of committing a crime listed in section 1 (3) of this 1999 Act, the court shall amend the judgment and impose a lesser sentence.

(5) The sentencing court retains authority to modify its judgment and sentence to reflect the results of a resentencing hearing ordered under this section.

(6) Not less than five years after the denial of a petition under this section, a person sentenced under section 1 of this 1999 Act may petition again for a resentencing hearing under subsections (1) to (5) of this section.

SECTION 8. ORS 135.055 is amended to read:

135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050, if other than counsel provided pursuant to ORS 151.010 or 151.460, shall, upon certification by the court, be paid fair compensation for representation in the case:

(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in a proceeding in a circuit court.

(2) Except for counsel appointed pursuant to contracts or counsel employed by the Public Defender, compensation payable to appointed counsel under subsection (1) of this section:

(a) In a proceeding in a county or justice court shall not be less than $30 per hour.

(b) In a proceeding in a circuit court shall be subject to the applicable compensation established under ORS 151.430 (5).

(3)(a) [The person for whom counsel has been appointed] A person determined to be eligible for appointed counsel is entitled to necessary and reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon written request, which shall not be disclosed to the district attorney prior to conclusion of the case, secure approval and preauthorization of payment of such expenses as are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to travel, telephone calls, photocopying or other reproduction of documents, necessary costs associated with obtaining the attendance of witnesses for the defense, expert witness fees and fees for interpreters and assistive communication devices necessary for the purpose of communication between appointed counsel and a client or witness in the case.

(b) In a county or justice court, the request shall be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit which sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure which may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.

(c) In a circuit court, the request shall be in the form and contain the information that is required by policies of the State Court Administrator.

(d) Entitlement under this subsection to payment for expenses is subject to policies and procedures established by the State Court Administrator, including, but not limited to, cost guidelines and standards established under ORS 151.430. Entitlement to payment of extraordinary expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the State Court Administrator, if the case is in circuit court, except as otherwise provided in the policies and procedures established by the State Court Administrator. The presiding judge or trial judge has ultimate authority for approval of expenses under this paragraph. Approved and authorized expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(4) Upon completion of all services by the counsel appointed pursuant to ORS 135.045 or 135.050, the counsel shall submit to the court a statement of all reasonable fees and expenses of investigation, preparation, presentation and representation paid or incurred, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.

(5) The total fees and expenses payable under this section shall be subject to the review of the presiding judge for the judicial district. The presiding judge shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid:

(a) By the county, in respect to a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(6)(a) The presiding judge shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

(b) With any certification by the court of fees or expenses that the State Court Administrator is to pay for counsel or other costs of indigent representation under ORS 33.015 to 33.155, 135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450, 151.460, 151.505, 161.346, 161.365, 161.665, 163.105, 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.255 and 426.307, the court shall include any information identified and requested by the State Court Administrator as needed for audit, statistical or any other purpose pertinent to insure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

(c) The presiding judge may authorize the clerk of the court to make the certification required under this section in some or all cases where the amount for payment meets the policies and procedures established by the State Court Administrator under ORS 151.430 (5) and (6). The authorization must be in writing and must specify the types of cases to which the authorization applies.

SECTION 9. ORS 161.735 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 [county in which the defendant was convicted] 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 on the presentence hearing, 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

(8) Subsection (7) of this section does not prohibit proof of the previous conviction by any other procedure.

SECTION 10. The Oregon Criminal Justice Commission shall adopt amendments to sentencing guidelines rules consistent with sections 1, 2, 3 and 7 of this 1999 Act. The amendments take effect on the date specified by the commission.

Approved by the Governor May 3, 1999

Filed in the office of Secretary of State May 3, 1999

Effective date October 23, 1999

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