Donald A. Bennett was an Oregon Department of Corrections (ODOC) prisoner when he escaped from the South Fork Forest Camp, a minimum-security facility. After absconding, Bennett committed a burglary and was re-arrested.
He pleaded guilty to burglary in August 2008 and to second-degree escape in July 2009. When Bennett was sentenced on the escape conviction, the court found that the presumptive sentence was 25-30 months but imposed a 50-month upward departure sentence based on the aggravating factor that he had committed a burglary while on escape status.
Bennett argued on appeal that the sentencing court erred in considering "conduct that occurs after the crime of conviction in determining whether there are substantial and compelling reasons to depart."
The Court of Appeals disagreed, finding that Bennett's argument was "not supported by the text of [OAR 213-008-0002(1)] or the relevant caselaw." Noting that the list of mitigating and aggravating sentencing factors is a non-exclusive list, the appellate court observed that it had previously held in State v. Ceballos, 162 Or.App 477, 986 P.2d 680 (Or. App. 1999) that the sentencing court may consider, as a departure factor, similar offenses committed after the current offense for which a sentence is being imposed.
"Necessarily then, the list of factors in OAR 213-008-0002(1) cannot be read to prohibit consideration of a defendant's post-offense conduct," the Court of Appeals held. Therefore, the sentencing court "did not err in relying on defendant's burglary conviction in support of the departure sentence." See: State v. Bennett, 249 Or.App 379, 277 P.3d 586 (Or.App. 2012), review denied.
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Related legal case
State v. Bennett
|Cite||249 Or.App 379, 277 P.3d 586 (Or.App. 2012), review denied|
|Level||State Court of Appeals|