State v. Allen

40 Citing cases

  1. State v. Allen

    A117220 (Control) and A117851 (Cases Consolidated) (Or. Ct. App. Nov. 16, 2005)

    Appeal from Circuit Court, Washington County. Suzanne M. Upton, Judge. On respondent's petition for reconsideration filed April 20, 2005, response to respondent's petition for reconsideration filed August 3, 2005, and reply to response to petition for reconsideration filed September 8, 2005. Opinion filed March 16, 2005. 198 Or App 392, 108 P3d 651 (2005). Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, for petition and reply.

  2. State v. Allen

    202 Or. App. 565 (Or. Ct. App. 2005)   Cited 38 times
    In Allen, we discussed "the use of a departure sentence based on the defendant's supervision status under the rationale that the commission of a new crime demonstrated that supervision had not deterred the defendant."

    The state petitions for reconsideration of our decision in State v. Allen, 198 Or App 392, 108 P3d 651 (2005), in which we vacated the sentences of two of defendant's three drug offense convictions and remanded for resentencing. Defendant asserted that the imposition of a departure sentence on two of those convictions based on a judicial finding that he was on supervision at the time of the crime violated the Sixth Amendment as interpreted in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004).

  3. State v. Lennon

    225 Or. App. 318 (Or. Ct. App. 2009)   Cited 5 times

    As explained below, the court erred in doing so, and we exercise our discretion to correct that error. In State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), rev den, 342 Or 46 (2006), we held that an upward departure sentence based on a defendant's supervisory status "requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent" and that, where the defendant did not admit those further facts, he "was entitled to have a jury determine whether those inferences were appropriate to draw by a standard of proof beyond a reasonable doubt." As we explained in State v. Burns, 213 Or App 38, 47, 159 P3d 1208 (2007), rev dismissed as improvidently allowed, 345 Or 302 (2008), "In Allen, we concluded that whether a defendant was on parole at the time of an offense, whether the defendant's character is malevolent, and whether parole failed to serve as an effective deterrent are factual issues and, as such, are subject to the Sixth Amendment."

  4. State v. Burns

    159 P.3d 1208 (Or. Ct. App. 2007)   Cited 8 times
    In Burns, the defendant argued that the indictment was inadequate because it did not allege that he knew that there were injuries resulting from the accident, or even that he knew such injuries were likely.

    Defendant contends that, under Blakely and Apprendi, the court was not permitted to impose the departure sentence on the basis of its own findings, in the absence of jury findings or an admission from defendant himself. The state responds that, in fact, defendant admitted to the fact that he was on post-prison supervision at the time of the offense, so the imposition of the departure sentence did not run afoul of Blakely or Apprendi. Defendant acknowledges that he admitted the bare fact that he was on supervision at the time of the offense, but he insists that, consistently with our decision in State v. Allen, 198 Or App 392, 395-96, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), disposition withdrawn, 207 Or App 295, 140 P3d 1135, rev den, 342 Or 46 (2006), that is insufficient to avoid the requirements of Blakely and Apprendi. According to defendant, Allen demonstrated that a departure sentence imposed on the basis of a defendant's supervisory status requires more than just the fact of supervisory status; it also requires a finding of fact as to defendant's "malevolent quality" and that supervision failed to act as a deterrent. We agree with defendant.

  5. State v. Lennon

    348 Or. 148 (Or. 2010)   Cited 10 times
    In State v. Lennon, 348 Or. 148, 157, 229 P.3d 589 (2010), the Supreme Court addressed the "failure to deter" departure factor, and it expressly rejected our conclusion (based on Allen) that a "malevolent quality" finding was required.

    There also must be evidence that is sufficient to allow a factfinder to draw an inference about `the malevolent quality of the offender,' and the failure of probation to serve as an effective deterrent."Id. at 323 (quoting State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), disposition withdrawn, 207 Or App 295, 140 P3d 1135, rev den, 342 Or 46 (2006)) (emphasis added). The Court of Appeals thus held that "a finding that a defendant has not been deterred by prior probations or incarcerations depends on inferences about the defendant's personal characteristics and circumstances that are subject to the jury trial right[.

  6. State v. Pratt

    238 Or. App. 1 (Or. Ct. App. 2010)   Cited 2 times

    Because we considered it to be dispositive, we confined our analysis in Pratt II to the departure factor of defendant's probation status at the time he committed his current offenses. Relying on our opinion in State v. Allen, 198 Or. App 392, 396, 108 P.3d 651, adh'd to as clarified on recons, 202 Or. App 565, 123 P.3d 331 (2005), rev den, 342 Or. 46 (2006), we explained that an upward departure sentence based on a defendant's supervisory status "require[d] further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent." We concluded that, on the record before us, we could not say that there was "no legitimate debate" that a trier of fact would have drawn that inference.

  7. State v. Williams

    238 Or. App. 9 (Or. Ct. App. 2010)   Cited 2 times

    In reaching that conclusion, we relied on a line of cases from this court establishing that a determination that a defendant has failed to be deterred "`requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent.'" Williams II, 225 Or. App. at 330 (quoting State v. Allen, 198 Or. App. 392, 396, 108 P.3d 651, adh'd to as clarified on recons, 202 Or. App. 565, 123 P.3d 331 (2005), rev den, 342 Or 46 (2006)). Following that analysis, we concluded that the evidence the state had presented, "although significant, was not so overwhelming as to eliminate all legitimate debate as to whether defendant was undeterred by prior sanctions."

  8. State v. Winn

    208 P.3d 524 (Or. Ct. App. 2009)   Cited 1 times

    " On this record, we conclude that there is no legitimate debate that the jury would have drawn the inference required by Bray — defendant had two prior convictions for assault and was convicted in this case of four counts of assault. With regard to the second departure factor, defendant's post-prison supervision status at the time he committed his current offenses, as we explained in State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant's supervisory status "requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent." Here, defendant — while on probation — repeatedly punched his female domestic partner in the face and back, strangled her with a rope, and told her (as recited by the prosecutor at sentencing and not contested by defendant), "I am going to kill you. I'm not afraid to go to jail for the rest of my life, because I would rather see you dead.

  9. State v. Fanning

    208 P.3d 530 (Or. Ct. App. 2009)

    See Ramirez, 343 Or at 513 (setting out "legitimate debate" standard for exercise of discretion to review unpreserved challenges to departure sentences based on judicial findings of fact). With regard to the durational departure factor — defendant's post-prison supervision status at the time he committed his current offenses — as we explained in State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), rev den, 342 Or 46 (2006), an upward departure sentence based on a defendant's supervisory status "requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent." Here, as the trial court noted, defendant was on post-prison supervision for a prior conviction for a very similar offense — invasion of privacy committed by observing women in restrooms — when he committed his current crimes.

  10. State v. Williams

    228 Or. App. 254 (Or. Ct. App. 2009)   Cited 2 times

    In the state's view, our failure to consider defendant's uncharged misconduct constituted a deviation from our prior case law construing that departure factor, and a misinterpretation of the Supreme Court's opinion in Bray. The state also argues that we erred in adhering to our opinion in State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), rev den, 342 Or 46 (2006), where we explained that an upward departure sentence based on a defendant's supervisory status "requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent." Neither of the state's arguments is well taken.