State v. Hicks
249 Or. App. 196
Or. Ct. App.2012Background
- Hicks was convicted by guilty pleas to second-degree burglary and first-degree criminal mischief.
- The sentencing statute ORS 137.717(1)(b) (2009) prescribed a presumptive sentence of 13 months for each offense.
- The trial court imposed 26-month departures on each count and ordered the sentences served consecutively for a total of 52 months.
- Hicks argued that the consecutive sentences should be controlled by the Oregon Sentencing Guidelines shift-to-I rule, producing a shorter total term.
- The State argued the 13-month presumptive is statutorily mandated and not within the shift-to-I rule; the court rejected Hicks’ argument.
- The court relied on pre- and post-1999 amendments to ORS 137.717 and related cases to conclude the 13-month sentence is statutorily mandated and not subject to the shift-to-I rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether shift-to-I applies to consecutive presumptive sentences under ORS 137.717(1)(b). | Hicks | Hicks | Shift-to-I does not apply |
| Whether the 13-month presumptive sentence in ORS 137.717(1)(b) (2009) is statutorily mandated and outside guidelines. | Hicks | Hicks | Yes; it is statutorily mandated |
| Whether amendments to ORS 137.717(1)(b) in 1999 affect the applicability of shift-to-I. | Hicks | Hicks | Amendments did not bring it within shift-to-I; outcomes align with Young |
Key Cases Cited
- State v. Young, 183 Or.App. 400 (2002) (consecutive sentences and shift-to-I analysis for presumptive sentences)
- State v. Langdon, 151 Or.App. 640 (1997) (shift-to-I excludes statutorily mandated sentences from guideline rules)
- State v. Bagley, 158 Or.App. 589 (1999) (137.717 should not be read as amending guidelines to create new presumptives)
- Cervantes-Avila, 242 Or.App. 122 (2011) (Gun Minimum statute's mandated sentences outside guidelines remain outside shift-to-I analysis)