Defendant appeals from a judgment in which the sentencing court imposed a cluster of special conditions of probation commonly referred to as a “sex offender package.” Defendant contends that, in imposing those special conditions, the court erred in making a factual determination that had to be submitted to a jury under Blakely v. Washington,
Defendant was charged with two counts of sexual abuse in the first degree, ORS 163.427, and one count of harassment, ORS 166.065(4), for “touching [the victim’s] upper inner thigh, a sexual or intimate part of [the victim].” He pleaded guilty to the harassment charge, a Class A misdemeanor, and the state dismissed the other charges. At sentencing, the court suspended the imposition of an incarcera-tive sentence and placed defendant on 24 months’ probation. In addition, the court determined that defendant had acted with a sexual purpose in committing the offense and imposed the sex offender package as a special condition of probation.
Defendant appeals, arguing that the sentencing court violated his Sixth Amendment right to a jury trial when it imposed the sex offender package. Defendant’s argument has two premises. First, he asserts that, because he was not convicted of a sex crime, the sentencing court could not impose the sex offender package without finding as fact that defendant acted with a “sexual purpose” in committing the offense. Second, he argues that, under Blakely and Apprendi, the factual finding that he acted with a sexual purpose had to be made by a jury and proved beyond a reasonable doubt. It follows, defendant contends, that the sentencing court erred in making that factual determination itself. Because defendant’s major premise is flawed, his argument fails.
Here, defendant was not convicted of a sex offense, nor did he have any previous convictions for a sex offense. Therefore, the sentencing court could impose the sex offender package only as a special condition of probation — that is, only
At the outset, we note that defendant’s major premise is a narrow one. He does not assert that the criterion that ORS 137.540(2) expressly establishes — that is, that any special condition of probation be reasonably related to his crime of conviction or his particular needs for public protection or reformation — must be determined by a jury. Nor does he assert that the record in this case was insufficient to satisfy that criterion. Instead, he argues that our holding in State v. Mack,
At issue in Mack was whether the evidentiary record was sufficient to support the imposition of a sex offender probation package where the defendant was not convicted of a sex offense. We held that, although the court had discretion to impose special conditions of probation, the record must support the imposition of any such conditions. Id. at 427-28. We further held that, because the defendant was not convicted of a sex offense, “there must be some evidence from which a reasonable inference arises that [the defendant] acted with a sexual purpose.” Id. at 429. We also stated:
*5 “Thus, the trial court had to find that defendant acted with a sexual purpose before it could impose a sex offender package as a condition of probation in this case. Otherwise, the imposition of the sex offender package as a condition of probation would not be reasonably related to the crimes of conviction.”
Id.
Contrary to defendant’s understanding, Mack does not require, as a foundation for imposing a sex offender probation package as a special condition of probation, a particularized finding of fact that the defendant acted with a sexual purpose. To be sure, where the state asserts that the sex offender package is reasonably related to the defendant’s crime or conviction, “there must be some evidence in the trial record from which one could reasonably infer that the defendant acted with a sexual purpose.” State v. Phillips,
This court and the Supreme Court have interpreted the statute in a straightforward way. We have said that, in making the statutory determination, it is “not necessary * * * for the court to list the reasons why it found the special condition appropriate.” Estey,
“An appellate court can test conditions of probation for compliance with [the legislative] standard only if the sentencing court makes a record. Such a record need not be exhaustive, and often the facts brought out in the criminal trial will themselves be an adequate record to show that the conditions of probation are appropriate.”
Thus, when properly understood, our statement and, indeed, our holding in Mack, refer to the need for evidence of a reasonable relationship between a sex offender probation package and the purpose underlying the defendant’s offense. Mack does not undercut the longstanding holdings of Estey and Martin that the evidentiary record, not particular findings of fact, must support the imposition of special conditions of probation. In short, there is nothing in the text of ORS 137.540(2) or the case law construing it that requires particularized factual findings to justify the imposition of any special condition of probation, including a sex offender package for a defendant convicted of a nonsex offense.
It follows that Apprendi and Blakely do not assist defendant in this case. The principles enunciated in those cases apply only to circumstances in which the sentencing court’s authority to order a particular sentence “depends on finding [additional facts not decided by the jury].” Blakely,
Affirmed.
Notes
ORS 137.540(2) provides, in part, that, “[i]n addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both * * *.”
See also State v. Bourrie,
In Mack, we cited both Estey and Martin with approval, albeit with respect to different points of law. Mack,
The fact that the sentencing court actually made such a finding does not alter our analysis.