Submitted: May 29, 2014.
Marion County Circuit Court. 13C40176. Dale Penn, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[264 Or.App. 212] LAGESEN, J.
The issue on this appeal is whether the trial court erred when it determined defendant's eligibility for alternative incarceration programs (AIPs) and early release under ORS 421.508(4) under the statutory framework that governed that determination for offenses committed before January 1, 2009. We conclude that the trial court erred by applying the former statutory framework rather than the current statutory framework, but affirm because defendant was " actively instrumental" in bringing about that error and therefore invited it.
Defendant was convicted of multiple offenses, including first-degree burglary as charged in Count 1 of the indictment. At sentencing, defendant requested that the trial court determine that she was eligible for AIPs. The state argued that the court should deny AIP eligibility for " substantial and compelling reasons," namely, defendant's " persistent involvement in * * * past sanctions."  Defendant, [264 Or.App. 213] in response, asserted that " it's our position that there are not essential and compelling reasons to deny AIP for good time[.]" The trial court denied AIP eligibility with respect to Count 1. The court explained:
" And I would find that on count 1, because there are multiple victims, I would order that there be 936 program[s], but I find substantial and compelling reason[s] to order that AIP would not be appropriate on count 1. All right. As a separate criminal episode and separate victims."
On appeal, defendant assigns error to the trial court's denial of AIP eligibility with respect to Count 1. She argues that the trial court applied the wrong legal framework to determine her eligibility for AIPs when it used the " substantial-and-compelling-reasons" test under ORS 137.750(1), and that
the trial court instead should have applied the criteria in ORS 137.751(1) to assess ...