Considerations in determining aggravation or mitigation
Source:
Section 137.090 — Considerations in determining aggravation or mitigation, https://www.oregonlegislature.gov/bills_laws/ors/ors137.html.
Notes of Decisions
Unsworn statements may be received by the trial court in considering sentence. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied
Hearsay is admissible in the sentencing procedure at least in so far as it may be included in a presentence report. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied
The defendant does not have the right to take testimony controverting information contained in the presentence report. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)
Prior juvenile violations and criminal convictions obtained in proceedings where defendant was not represented by counsel, or was not advised of his right to counsel or did not intelligently waive his right to counsel are subject to collateral attack when listed in presentence report. State v. Flores, 13 Or App 556, 511 P2d 414 (1973)
A trial court’s refusal to consider a presentence report before the imposition of sentence does not constitute a denial of the defendant’s right to effective counsel. State v. Watson, 26 Or App 59, 551 P2d 1314 (1976)
Under this section, state was required to present by witnesses in open court derogatory information contained in its sentencing summary. State v. Collins, 43 Or App 265, 602 P2d 1081 (1980)
This section makes hearsay rules of evidence applicable to testimony of witnesses in sentencing hearing about circumstances that are put forward to justify aggravation of punishment where testimony implicates defendant in criminal activity for which he has never been charged or tried. State v. Deck, 84 Or App 725, 735 P2d 637 (1987)
Inclusion of persistent involvement history in determining criminal history score does not preclude court from using same history as basis for imposing upward departure sentence. State v. Kennedy, 113 Or App 134, 831 P2d 712 (1992); State v. Westcott, 139 Or App 374, 912 P2d 400 (1996), Sup Ct review denied
Court may consider incidents occurring subsequent to tried offense as evidence of persistent involvement in criminal activity. State v. Ceballos, 162 Or App 477, 986 P2d 680 (1999), Sup Ct review denied
Where prior juvenile adjudication is offered for sentence enhancement purposes, existence of adjudication must either be proved to trier of fact or be admitted by defendant for sentencing purposes following informed and knowing waiver. State v. Harris, 339 Or 157, 118 P3d 236 (2005)
Sentence enhancing factors are material elements of offense that state is required to prove beyond reasonable doubt. State v. Upton, 339 Or 673, 125 P3d 713 (2005)
Requirement that miscellaneous evidence relevant to aggravation or mitigation be “trustworthy and reliable” does not make Oregon Evidence Code applicable to adjudicatory phase of revocation proceeding. State v. Hammond, 218 Or App 574, 180 P3d 137 (2008)
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