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State v. Watkins-McKenzie

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent
v.
ANGELA MALOWE WATKINS-McKENZIE, Defendant-Appellant.

          Submitted June 21, 2016

         Multnomah County Circuit Court 14CR05521; A158912, Cheryl A. Albrecht, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant, who was convicted of five counts of first degree aggravated theft, ORS 164.057, and sentenced under ORS 137.717, the repeat property offender sentencing statute, seeks review of her sentence. She contends that the trial court erroneously understood the scope of its authority under ORS 137.717 in two ways: (1) in concluding that ORS 137.717 precluded the court from imposing downward departure sentences on other convictions once it had imposed one downward departure sentence in the same case; and (2) in concluding that it lacked discretion to elect the particular count on which it downwardly departed.

         Held: (1) A sentence is "previously received" for purposes of ORS 137.717 (6) (b) if it is imposed on a conviction that qualifies as a "previous conviction" for purposes of the same statute. (2) In the absence of a previous disqualifying downward departure sentence, a trial court has the discretion whether to downwardly depart at all and to do so for any eligible conviction.

         Remanded for resentencing; otherwise affirmed. [286 Or.App. 570]

          LAGESEN, J.

         Defendant, who was convicted of five counts of first-degree aggravated theft, ORS 164.057, and sentenced under ORS 137.717, the repeat property offender sentencing statute, seeks review of her sentence. She contends that the trial court erroneously understood the scope of its authority under ORS 137.717 in two ways: (1) in concluding that ORS 137.717 precluded the court from imposing downward departure sentences on other convictions once it had imposed one downward departure sentence in the same case; and (2) in concluding that it lacked discretion to elect the particular count on which it downwardly departed. We review the trial court's interpretation and application of ORS 137.717 for legal error and conclude that, although the trial court correctly determined that it lacked the authority to downwardly depart more than once, it erred when it determined that it lacked discretion to elect the count on which it downwardly departed. We therefore remand for resentencing but otherwise affirm.

         The relevant facts are procedural and not disputed. Defendant, who had no prior criminal convictions before this case, pleaded guilty to five counts of first-degree aggravated theft for several thefts from her employer that she committed over the course of a year and a half. On Count 1, the trial court sentenced defendant under the sentencing guidelines to probation, with an upward durational departure to 60 months. That conviction, in turn, triggered the application of ORS 137.717 for the purpose of sentencing defendant on the remaining counts. For each conviction to which it applies, that statute requires a sentencing court to impose the longer of the presumptive guidelines sentence and the presumptive statutory sentence. ORS l37.7l7(1)(a). The statute permits a sentencing court to impose a downward departure sentence, but only if the offender "has not previously received a downward departure from a presumptive sentence for a crime listed in subsection (1) of this section." ORS l37.7l7(6)(b). The court applied the statute to sentence defendant on Count 2, determining that the presumptive sentence under ORS 137.717 was longer than the presumptive sentence under the sentencing guidelines. It therefore sentenced defendant under ORS 137.717, downwardly departing dispositionally [286 Or.App. 571] to impose a term of probation, but upwardly departing durationally to extend that probationary term to 60 months. With respect to the remaining counts, the court sentenced defendant to the following terms of incarceration provided for in ORS 137.717 after determining that those terms of incarceration were longer than the presumptive sentences under the guidelines:

• Count 3: 26 months' imprisonment.
• Count 4: 28 months' imprisonment.
• Count 5: 30 months' ...

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