General Provisions

ORS 161.725
Standards for sentencing of dangerous offenders


(1)

Subject to the provisions of ORS 161.737 (Sentence imposed on dangerous offender as departure from sentencing guidelines), the maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if 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 one or more of the following grounds exist:

(a)

The defendant is being sentenced for a Class A felony 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 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 defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.

(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.

(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 (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.

(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. [1971 c.743 §85; 1989 c.790 §75; 1993 c.334 §5; 2005 c.463 §§9,14; 2007 c.16 §4]

Notes of Decisions

Under Former Similar Statutes (Ors 137.111 to 137.115)

Procedures for sentencing did not amount to a denial of equal protection because they were different from the mental commitment procedures. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

In General

Since this section does not require proof beyond reasonable doubt of dangerous offender status, evidence that defendant entertained sexual fantasies of rape, and that he had prior convictions for forcible sex offenses, was sufficient to show that he was "suffering from severe personality disorder indicating propensity toward criminal activity." State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

This section does not conflict with ORS 426.675 because it provides for magnified sentence of incarceration for dangerous offender as means of preventing individual from inflicting future harm, while ORS 426.675 authorizes treatment program for sexually dangerous person during incarceration. State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

Legislative intent of this section was not that first offender receive enhanced penalty because accomplice had previously been convicted. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

It was proper for trial court to apply this section to extend maximum period of commitment of defendant to jurisdiction of Psychiatric Security Review Board. State v. Carrol, 54 Or App 445, 635 P2d 17 (1981), Sup Ct review denied

Whether felony for which defendant is being sentenced seriously endangered the life or safety of another is determined by actual circumstances, not elements defining felony. State v. Allen, 68 Or App 5, 680 P2d 997 (1984), Sup Ct review denied

Argument by defendant that trial court lacked authority to impose minimum sentence after sentencing him as dangerous offender under this section was without merit. State v. Downs, 69 Or App 556, 686 P2d 1041 (1984)

Where sentence imposed under this section is for felony conviction, ORS 144.110 allows imposition of minimum term of imprisonment. State v. Turner, 296 Or 451, 676 P2d 873 (1984)

Whether defendant is suffering from "severe personality disorder indicating a propensity toward criminal activity" is determination to be made by court upon consideration of psychiatric report, presentence report and evidence in case or that presented at presentence hearing. State v. Huntley, 302 Or 418, 730 P2d 418 (1986)

Although trial court is required to order psychiatric examination of defendant under ORS 161.735 (1), court is not bound by conclusions of any psychotherapist but is required by statute to make its own findings as to whether defendant is suffering from severe personality disorder with propensity toward criminal activity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

While court must consider psychiatric report, statute does not require that psychiatrist make finding of dangerousness or severe personality disorder. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Trice, 146 Or App 15, 933 P2d 345 (1997)

Language of this section requiring that court find defendant is suffering from severe personality disorder indicating a propensity toward criminal activity means a finding that defendant is suffering from a severe mental or emotional disorder indicating propensity toward continuing dangerous criminal activity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

Where court found that defendant was dangerous offender under standards of this section, fact that defendant was also psychotic did not render statute inapplicable. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

If person is only psychotic and does not also suffer from severe personality disorder accompanied by propensity to commit future criminal acts, fact that psychotic offender might be dangerous would not bring him within this statute. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

Minimum sentence under ORS 161.725 for person suffering severe personality disorder is not cruel and unusual punishment of person for suffering disorder, but reflects legislative recognition that having disorder makes person more likely to commit dangerous crimes and less amenable to rehabilitation. State v. Caughey, 89 Or App 605, 750 P2d 511 (1988), Sup Ct review denied

This section does not authorize penalty in addition to that imposed for underlying offense, it only authorizes enhanced sentence in lieu of that otherwise authorized for particular crime. State v. Burr, 90 Or App 338, 752 P2d 330 (1988)

For purpose of imposition of dangerous offender sanctions, this section relates to nature of crime for which defendant is sentenced and not to nature of defendant's involvement. State v. Mastne/Passer, 91 Or App 31, 754 P2d 4 (1988), Sup Ct review denied

Where court considered "report" under ORS 161.735 that defendant was uncooperative and that psychiatric analysis could not be made and observed defendant and heard evidence, including description of defendant's conduct during criminal episode, there was sufficient evidence to support finding that defendant is dangerous offender under this section. State v. Pryor, 96 Or App 181, 772 P2d 431 (1989), Sup Ct review denied

After finding defendant is dangerous offender under this section and ORS 161.735, sentencing court may not sentence defendant to determinate term under ORS 137.635. State v. Reese, 114 Or App 557, 836 P2d 737 (1992)

Where trial court found defendant was dangerous offender suffering from severe personality disorder indicating propensity towards criminal activity, and dangerousness of defendant required extended incarceration for protection of public, these findings taken together are sufficient to support conclusion defendant is dangerous offender. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Where 30-year dangerous offender sentence exceeded prescribed statutory maximum sentence, imposition of dangerous offender sentence based on finding of fact by court violated defendant's federal constitutional right to have fact proved to jury beyond reasonable doubt. State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), Sup Ct review denied

Waiver of right to jury trial on underlying charge is not waiver of right to have jury determine whether defendant is dangerous offender for sentencing purposes. State v. Williams, 197 Or App 21, 104 P3d 1151 (2005)

Completed Citations

O'Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied

§§ 161.705 to 161.735

Notes of Decisions

By enacting this section, the legislature intended to authorize a compromise of all Class C felonies which could be punished "as a misdemeanor." State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

Imposition of one-year jail term upon conviction of criminal activity in drugs was within maximum sentence authorized for crime, was imposed after defendant had violated probation, and did not shock the conscience. State v. Davis, 31 Or App 439, 570 P2d 683 (1977), Sup Ct review denied

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021