Judgment and Execution

ORS 137.707
Mandatory minimum sentences for certain juvenile offenders waived to adult court

  • lesser included offenses
  • return to juvenile court

(1)

When a person waived under ORS 419C.349 (Grounds for waiving youth to adult court) (1)(a) is convicted of an offense listed in subsection (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 the minimum sentence for any reason under ORS 421.121 (Reduction in term of incarceration) or any other provision of law. The person is eligible for a hearing and conditional release under ORS 420A.203 (Eligibility for second look) and 420A.206 (Conditional release).

(2)

ORS 138.052 (Appeal from judgment of conviction and sentence of death), 163.105 (Sentencing options for aggravated murder) and 163.150 (Sentencing for aggravated murder) apply to sentencing a person prosecuted under this section and convicted of aggravated murder under ORS 163.095 (“Aggravated murder” defined) 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 or life imprisonment without the possibility of release or parole.

(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:

(a)

(A) Murder in the second
degree, as defined in
ORS 163.115 (Murder in the second degree). 300 months

(B)

Murder in the first
degree, as defined
in ORS 163.107 (Murder in the first degree). 360 months

(C)

Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095 (“Aggravated murder” defined). 120 months

(D)

Attempt or conspiracy
to commit murder
in any degree. 90 months

(E)

Manslaughter in the
first degree, as defined
in ORS 163.118 (Manslaughter in the first degree). 120 months

(F)

Manslaughter in the
second degree, as defined
in ORS 163.125 (Manslaughter in the second degree). 75 months

(G)

Assault in the first
degree, as defined
in ORS 163.185 (Assault in the first degree). 90 months

(H)

Assault in the second
degree, as defined
in ORS 163.175 (Assault in the second degree). 70 months

(I)

Kidnapping in the first
degree, as defined in
ORS 163.235 (Kidnapping in the first degree). 90 months

(J)

Kidnapping in the second
degree, as defined in
ORS 163.225 (Kidnapping in the second degree). 70 months

(K)

Rape in the first degree,
as defined in ORS 163.375 (Rape in the first degree). 100 months

(L)

Rape in the second
degree, as defined in
ORS 163.365 (Rape in the second degree). 75 months

(M)

Sodomy in the first
degree, as defined in
ORS 163.405 (Sodomy in the first degree). 100 months

(N)

Sodomy in the second
degree, as defined in
ORS 163.395 (Sodomy in the second degree). 75 months

(O)

Unlawful sexual
penetration in the first
degree, as defined
in ORS 163.411 (Unlawful sexual penetration in the first degree). 100 months

(P)

Unlawful sexual
penetration in the
second degree, as
defined in ORS 163.408 (Unlawful sexual penetration in the second degree). 75 months

(Q)

Sexual abuse in the first
degree, as defined in
ORS 163.427 (Sexual abuse in the first degree). 75 months

(R)

Robbery in the first
degree, as defined in
ORS 164.415 (Robbery in the first degree). 90 months

(S)

Robbery in the second
degree, as defined in
ORS 164.405 (Robbery in the second degree). 70 months

(b)

(A) Arson in the first degree,
as defined in ORS 164.325 (Arson in the first degree),
when the offense represented
a threat of serious
physical injury. 90 months

(B)

Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670 (Using child in display of sexually explicit conduct). 70 months

(C)

Compelling prostitution,
as defined in ORS 167.017 (Compelling prostitution)

(1)

(a), (b) or (d). 70 months

(c)

Aggravated vehicular
homicide, as defined in
ORS 163.149 (Aggravated vehicular homicide). 240 months

(5)

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) of this section, the court shall sentence the person as provided in subsections (1) and (2) of this section.

(b)

Not an offense listed in subsection (4) of this section:

(A)

But constitutes an offense for which waiver is authorized under ORS 419C.349 (Grounds for waiving youth to adult court) (1)(b), 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 (Grounds for waiving youth to adult court). 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;
(iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 (Case transferred to juvenile court after verdict in criminal court) and 419C.411 (Disposition order); and

(iv)

Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255 (Maintenance).

(B)

And is not an offense for which waiver is authorized under ORS 419C.349 (Grounds for waiving youth to adult court) (1)(b), 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;
(iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 (Case transferred to juvenile court after verdict in criminal court) and 419C.411 (Disposition order); and

(iv)

Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255 (Maintenance).

(6)

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) 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) If a person charged and tried as provided in subsection (6) of this section is found guilty of aggravated murder or an offense listed in subsection (4) 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) of this section as provided in subsections (1) and (2) 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) of this section is not found guilty of aggravated murder or an offense listed in subsection (4) 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 (Grounds for waiving youth to adult court) (1)(b), 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 (Grounds for waiving youth to adult court). 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;

(C)

Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 (Case transferred to juvenile court after verdict in criminal court) and 419C.411 (Disposition order); and

(D)

Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255 (Maintenance). [1995 c.422 §49; 1995 c.421 §4; 1997 c.852 §3; 1999 c.1055 §12; 2007 c.867 §6; 2011 c.334 §2; 2019 c.634 §5; 2019 c.635 §11]
Note: See second note under 137.700 (Offenses requiring imposition of mandatory minimum sentences).

Notes of Decisions

Mandatory minimum sentence of 75 months for sexual abuse committed by minor with no previous record was not unconstitutionally disproportionate punishment. State v. Rhodes, 149 Or App 118, 941 P2d 1072 (1997), Sup Ct review denied

Where defendant over age 18 is tried for offense committed while juvenile, conviction on lesser included offense does not result in transfer of matter to juvenile court for disposition. State v. Pike, 177 Or App 151, 33 P3d 374 (2001), Sup Ct review denied

For purposes of calculating age of person at time of offense, person is considered to have attained higher age at midnight commencing person's birthday. Coley v. Morrow, 183 Or App 426, 52 P3d 1090 (2002), Sup Ct review denied

Law Review Citations

82 OLR 1 (2003); 52 WLR 61 (2015)

§§ 137.700 to 137.707

Notes of Decisions

Mandatory sentences for violent crimes do not violate Oregon Constitution Article III, section 1 (separation of powers); pre-1996 version of Article I, section 15 (no vindictive justice); or Article I, section 16 (cruel and unusual punishment). State ex rel Caleb v. Beesley, 326 Or 83, 949 P2d 724 (1997)

Sentencing disparity between crimes bearing mandatory minimum sentence and other crimes in same block of sentencing guidelines grid does not violate proportionality requirement of section 16, Article I of Oregon Constitution. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

Mandatory minimum sentencing scheme does not violate guarantee under United States Constitution concerning cruel and unusual punishment, right to allocution or right to counsel. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

Source

Last accessed
Jun. 26, 2021

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