Dеfendant was convicted of, among other offenses, rape in the first degree with a firеarm (Count 1), ORS 163.375; sodomy in the first degree with a firearm (Count 2), ORS 163.405; and unlawful use of a weapon (Count 3), ORS 166.220. Defеndant was sentenced to two consecutive terms of 100 months’ imprisonment on Counts 1 and 2 under ORS 137.700 (Bаllot Measure 11), and to 60 months’ imprisonment on Count 3 under the “gun minimum” statute, ORS 161.610. Defendant appeals, arguing that the trial court erred by imposing the 60-month gun minimum sentence consecutively to the Measure 11 sentences, because doing so resulted in a total incarcerative term of 260 months, in violation of the 200 percent rule codified at OAR 213-012-0020(2). We affirm.
OAR 213-012-0020 establishes the “200 pеrcent rule”; it provides, in part:
“(1) When the sentencing judge imposes multiple sentences consecutively, the consecutive sentences shall consist of an incarceration term and a supervision term.
“(2)(a) Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:
“(A) The presumptive incarceration term or the prison term defined in OAR 213-008-0005(1) imposed pursuant to a dispositional departure for the primary offense, as defined in OAR 213-003-0001(17); and
“(B) Up to the maximum incarceration term indicated in the Criminal History I Column for each additional offense imposed consecutively.
“(b) The total incarceration term of the cоnsecutive sentences, including the incarceration term for the primary offense, shall not exceed twice the maximum presumptive incarceration term or the prisоn term defined in OAR 213-008-0005(1) imposed pursuant to a dispositional departure of the primary sentеnce except by departure as provided by OAR 213-008-0007.”
As we explained in
State v. Langdon,
Defendant does not dispute that his Measure 11 sentences are controlled by Langdon; rather, he argues that, because a “gun minimum” sentence is not a statutorily mandated sentence, it is subject to the 200 percent rule, and the trial court erred by imposing such a sentence consecutively to the Measure 11 sentences. The “gun minimum” sentence is set out in ORS 161.610, which provides, in part:
“(3) Notwithstanding the provisions of ORS 161.605 or 137.010 (3) and except as otherwise provided in subsection (6) of this section, if a defendant is convicted of a felony having аs an element the defendant’s use or threatened use of a firearm during the commission оf the crime, the court shall impose at least the minimum term of imprisonment as provided in subsection (4) of this section. * * *
“(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:
“(a) Except as provided in subsection (5) of this section, upon the first convictiоn for such felony, five years
“(5) If it is the first time that the defendant is subject to punishment under this section, rаther than impose the sentence otherwise required by subsection (4)(a) of this section, thе court may:
“(b) For felonies committed on or after November 1, 1989, impose a lesser sеntence in accordance with the rules of the Oregon Criminal Justice Commission.”
*126 Defendant argues that, because his conviction for unlawful use of a weapon was the “first time that [he was] subject to punishment under” ORS 161.610, the trial court had discretion to impose a lesser sеntence than the mandatory 60 months’ imprisonment term required by ORS 161.610(4)(a). It follows, defendant reasоns, that his “gun minimum” sentence was not a “mandatory minimum” sentence and, thus, is subject to the 200 percent rule of OAR 213-012-0020(2). We disagree.
In
State v. Johnson,
Affirmed.