Submitted February 8, 2013
Lane County Circuit Court. 200923972B. Debra K. Vogt, Judge.
Erin Galli and Chilton & Galli, LLC, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[261 Or.App. 31] WOLLHEIM, J.
As part of a stipulated plea agreement defendant pleaded guilty to second-degree burglary, ORS 164.215, a Class C felony. The court imposed a downward departure sentence, from the presumptive sentence of 24 months in prison, as required by ORS 137.717, to a sentence of 36 months' probation, subject to conditions. Defendant violated his probation by committing the offense of driving while suspended. The trial court revoked defendant's probation and imposed a sentence of 24 months in prison, and also denied defendant's eligibility for early release or alternative incarceration programs (AIP) under ORS 137.750. On appeal, defendant does not challenge the revocation of his probation or the imposition of the 24-month prison sentence. He asserts only that the evidence does not support the trial court's finding that there were substantial and compelling reasons for denying defendant's eligibility for sentence modification programs. Because we conclude that the court did not err, we affirm.
The significant facts are largely undisputed. Defendant admitted the probation violation at a probation revocation hearing. The state requested that defendant receive a sentence of 24 months in prison, with one year of post-prison supervision, explaining that that the 24-month prison sentence was justified by defendant's lengthy criminal history. Defendant's counsel requested a sentence of 18 months in prison, explaining that the lesser sentence was warranted because defendant had not had any " dirty UAs" while on probation.
The court agreed with the state that the purposes of probation were not being served and revoked defendant's probation. The court also agreed with the state's sentencing recommendation:
" THE COURT: I will sentence you to 24 months with the Department of Corrections, with 12 months post-prison supervision.
" Your criminal history is so lengthy, sir, that anyone would think twice about giving you a break at this point. It's rare that when I look at them they go the full page and [261 Or.App. 32] then on to the second page. And that's what I'm looking at--
" THE DEFENDANT: Yeah, but a child molester gets 13 months and I get 24 months. That makes no sense. ...