State v. CERVANTES-AVILA
242 Or. App. 122
Or. Ct. App.2011Background
- Defendant was convicted of rape in the first degree with a firearm, sodomy in the first degree with a firearm, and unlawful use of a weapon.
- He received two consecutive 100-month terms under Ballot Measure 11 for Counts 1 and 2, plus a 60-month gun-minimum term under ORS 161.610 for Count 3.
- The court imposed the gun-minimum term consecutively to the Measure 11 sentences, resulting in a total term of 260 months.
- Defendant argues this total violates the 200% rule in OAR 213-012-0020(2).
- OAR 213-012-0020(2) generally caps consecutive sentences by the 200%/400% framework for presumptive or dispositional departures.
- The State contends that Measure 11 sentences are mandatory and not subject to the 200% rule, while the gun minimum remains a mandatory term under ORS 161.610.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 60-month gun minimum violates the 200% rule when imposed with Measure 11 sentences | State contends gun minimum is mandatory and not subject to 200% rule | Cervantes-Avila argues the gun minimum is subject to 200% rule and violates it when added to Measure 11 | No; gun minimum is mandatory and permissible to run consecutively to Measure 11. |
Key Cases Cited
- State v. Langdon, 151 Or.App. 640, 646, 950 P.2d 410 (1997) (Measure 11 sentences not subject to 200/400% limitation; dispositional departure rule does not apply to statutorily mandated sentences)
- State v. Langdon, 330 Or. 72, 999 P.2d 1127 (2000) (affirmation of Langdon framework)
- State v. Johnson, 125 Or.App. 655, 658, 866 P.2d 1245 (1994) (gun minimum sentence is a mandatory term)