State v. Bennett
249 Or. App. 379
Or. Ct. App.2012Background
- Bennett escaped from South Fork Forest Camp and was at large when he committed burglary.
- He was apprehended soon after the burglary and pleaded guilty to burglary in August 2008.
- Approximately a year later, in July 2009, he pleaded guilty to second-degree escape.
- At sentencing on the escape conviction, his presumptive sentence under grid block 6-A was 25–30 months.
- The court imposed an upward departure of 50 months plus 12 months’ post-prison supervision based on burglary while on escape status.
- On appeal, Bennett challenged the use of post-offense conduct to justify the departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May post-offense conduct support departure reasons? | Bennett: post-offense burglary cannot support departure. | State: rules permit consideration of post-offense conduct. | Yes; post-offense conduct can justify departure. |
| Does the enumerated list in OAR 213-008-0002(1) prohibit post-offense conduct? | Bennett: list is exclusive to precludes post-offense factors. | State: list is nonexclusive and does not prohibit post-offense conduct. | Court rejected prohibition; post-offense conduct allowed. |
| Does cooperation or persistent-involvement language authorize post-offense consideration? | Bennett: post-offense cooperation is not relevant to current crime. | State: enumerated factors include cooperation and persistent involvement referencing post-offense conduct. | Yes; factors expressly contemplate post-offense conduct. |
Key Cases Cited
- State v. Ceballos, 162 Or.App. 477 (1999) (permits consideration of post-offense similar offenses for persistent involvement)
- State v. Reeves, 134 Or.App. 38 (1995) (supports considering post-offense conduct for persistent involvement)
- State v. Agee, 223 Or.App. 729 (2008) (explains requirements for explaining departure reasons)
- State v. Kurtz, 350 Or. 65 (2011) (ejusdem generis to confine interpretation of general terms)