EDMONDS, J.
Defendant appeals from the 1,394-month sentence imposed on resentencing on his murder conviction. ORS 138.050. We affirm the conviction and remand for vacation of the sentence and for resentencing.
Defendant was 16 years old on August 13, 1991, when he attempted to rape a woman and then murdered her. After the state filed a motion to remand the case from juvenile court to circuit court, defendant did not contest the remand and agreed to plead guilty to murder, burglary and attempted rape.
Defendant was remanded and pleaded guilty. He received, in part, a sentence of life imprisonment on the murder conviction under ORS 163.115(3)(a). Defendant appealed that sentence. We held that under ORS 138.222(2)(d) and
State v. Adams,
315 Or 359, 847 P2d 397 (1993), we could not review his claimed errors on direct appeal. State
v. Davilla,
121 Or App 583, 586, 855 P2d 1160,
adhered to on recons
124 Or App 87, 89, 860 P2d 894 (1993),
rev den
318 Or 351 (1994).
Defendant then sought post-conviction relief, and the post-conviction relief court granted partial relief, vacating the life imprisonment sentence based on
State v. Morgan,
316 Or 553, 856 P2d 612 (1993). Defendant appealed the denial of his other claims for relief, and we affirmed without opinion.
Davilla v. Zenon,
147 Or App 241, 932 P2d 1217,
rev den
325 Or 403 (1997). At resentencing before the trial court, defendant moved to be returned to juvenile court and to be allowed to rescind his guilty plea. The trial court denied those motions and sentenced defendant to a departure sentence under the guidelines of 1,394 months (approximately 116 years) incarceration on the murder conviction. Defendant appeals that sentence.
Defendant makes the following assignments of error: first, that imposing a sentence under the sentencing
guidelines violates statutory protections for juveniles; second, that his sentence is unconstitutionally disproportionate under Article I, section 16, of the Oregon Constitution; third, that his sentence is cruel and unusual punishment under Article I, section 15, of the Oregon Constitution; fourth, that there were not substantial. and compelling reasons for a departure sentence under the guidelines; and, fifth, that the court failed to apply the 200 percent rule limiting departure sentences. Finally, in his sixth assignment of error, defendant argues that the resentencing court erred in not allowing the withdrawal of the remand order from juvenile court and his plea of guilty to murder.
Defendant’s sixth assignment of error incorporates issues that defendant has previously raised on post-conviction relief and that have been decided against him, as does his argument that the trial court erred by imposing consecutive sentences.
Davilla v. Zenon,
147 Or App at 241. Moreover, having pled guilty, defendant’s appeal is limited to challenges to his sentence. ORS 138.050.
We turn to the issue of whether defendant’s sentence for murder exceeds the maximum allowable by law. ORS 138.050(l)(a).
Defendant argues that ORS 161.620 provides statutory protections for juveniles that make sentencing under either ORS 163.115(3) (1989) or the guidelines unlawful.
In 1991, when defendant committed his crimes, ORS 161.620 (1989) provided:
“Notwithstanding any other provision of law, a sentence imposed upon any person remanded from the juvenile court under ORS 419.533 shall not include any sentence of death or life imprisonment without the possibility of release or
parole nor imposition of any mandatory minimum sentence except that a mandatory minimum sentence under ORS 163.105 (l)(c) shall be imposed where the person was 17 years of age at the time of the offense.”
Oregon Laws 1989, chapter 720, provided for a sentence of life imprisonment without the possibility of release or parole for adult defendants while simultaneously amending ORS 161.620 to ensure that remanded juveniles did not receive “true life” sentences. We conclude from the plain language of the statutes that the legislature intended that remanded juveniles not be sentenced to imprisonment for the duration of their lives without having the possibility of release. A departure sentence of 116 years is in practical effect imprisonment for life without the possibility of release or parole. Therefore, we conclude that defendant’s sentence is in violation of ORS 161.620 and that this matter must be remanded for resentencing.
In that regard, defendant argues that there is no statutory authority under which the trial court could impose a lawful sentence for his conviction of murder. He concludes that he must be remanded to juvenile court for purposes of disposition. We agree with him that ORS 163.115(3) is not available as authority to the court for sentencing in this case. ORS 163.115(3) (1989) provides:
“(a) A person convicted of murder shall be punished by imprisonment for life.
“(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 10 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.
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EDMONDS, J.
Defendant appeals from the 1,394-month sentence imposed on resentencing on his murder conviction. ORS 138.050. We affirm the conviction and remand for vacation of the sentence and for resentencing.
Defendant was 16 years old on August 13, 1991, when he attempted to rape a woman and then murdered her. After the state filed a motion to remand the case from juvenile court to circuit court, defendant did not contest the remand and agreed to plead guilty to murder, burglary and attempted rape.
Defendant was remanded and pleaded guilty. He received, in part, a sentence of life imprisonment on the murder conviction under ORS 163.115(3)(a). Defendant appealed that sentence. We held that under ORS 138.222(2)(d) and
State v. Adams,
315 Or 359, 847 P2d 397 (1993), we could not review his claimed errors on direct appeal. State
v. Davilla,
121 Or App 583, 586, 855 P2d 1160,
adhered to on recons
124 Or App 87, 89, 860 P2d 894 (1993),
rev den
318 Or 351 (1994).
Defendant then sought post-conviction relief, and the post-conviction relief court granted partial relief, vacating the life imprisonment sentence based on
State v. Morgan,
316 Or 553, 856 P2d 612 (1993). Defendant appealed the denial of his other claims for relief, and we affirmed without opinion.
Davilla v. Zenon,
147 Or App 241, 932 P2d 1217,
rev den
325 Or 403 (1997). At resentencing before the trial court, defendant moved to be returned to juvenile court and to be allowed to rescind his guilty plea. The trial court denied those motions and sentenced defendant to a departure sentence under the guidelines of 1,394 months (approximately 116 years) incarceration on the murder conviction. Defendant appeals that sentence.
Defendant makes the following assignments of error: first, that imposing a sentence under the sentencing
guidelines violates statutory protections for juveniles; second, that his sentence is unconstitutionally disproportionate under Article I, section 16, of the Oregon Constitution; third, that his sentence is cruel and unusual punishment under Article I, section 15, of the Oregon Constitution; fourth, that there were not substantial. and compelling reasons for a departure sentence under the guidelines; and, fifth, that the court failed to apply the 200 percent rule limiting departure sentences. Finally, in his sixth assignment of error, defendant argues that the resentencing court erred in not allowing the withdrawal of the remand order from juvenile court and his plea of guilty to murder.
Defendant’s sixth assignment of error incorporates issues that defendant has previously raised on post-conviction relief and that have been decided against him, as does his argument that the trial court erred by imposing consecutive sentences.
Davilla v. Zenon,
147 Or App at 241. Moreover, having pled guilty, defendant’s appeal is limited to challenges to his sentence. ORS 138.050.
We turn to the issue of whether defendant’s sentence for murder exceeds the maximum allowable by law. ORS 138.050(l)(a).
Defendant argues that ORS 161.620 provides statutory protections for juveniles that make sentencing under either ORS 163.115(3) (1989) or the guidelines unlawful.
In 1991, when defendant committed his crimes, ORS 161.620 (1989) provided:
“Notwithstanding any other provision of law, a sentence imposed upon any person remanded from the juvenile court under ORS 419.533 shall not include any sentence of death or life imprisonment without the possibility of release or
parole nor imposition of any mandatory minimum sentence except that a mandatory minimum sentence under ORS 163.105 (l)(c) shall be imposed where the person was 17 years of age at the time of the offense.”
Oregon Laws 1989, chapter 720, provided for a sentence of life imprisonment without the possibility of release or parole for adult defendants while simultaneously amending ORS 161.620 to ensure that remanded juveniles did not receive “true life” sentences. We conclude from the plain language of the statutes that the legislature intended that remanded juveniles not be sentenced to imprisonment for the duration of their lives without having the possibility of release. A departure sentence of 116 years is in practical effect imprisonment for life without the possibility of release or parole. Therefore, we conclude that defendant’s sentence is in violation of ORS 161.620 and that this matter must be remanded for resentencing.
In that regard, defendant argues that there is no statutory authority under which the trial court could impose a lawful sentence for his conviction of murder. He concludes that he must be remanded to juvenile court for purposes of disposition. We agree with him that ORS 163.115(3) is not available as authority to the court for sentencing in this case. ORS 163.115(3) (1989) provides:
“(a) A person convicted of murder shall be punished by imprisonment for life.
“(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 10 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.
“(c) When a defendant is convicted of murder under this section, the court, in addition to the minimum required by paragraph (b) of this subsection, may order that the defendant shall be confined for a minimum term of up to an additional 15 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”
In 1992, the Supreme Court examined ORS 161.620 and the legislature’s intent in order to interpret the phrase
“mandatory minimum sentence” in the statute.
State v. Jones,
315 Or 225, 844 P2d 188 (1992). The issue in
Jones
was whether that phrase is limited to statutorily mandated minimum sentences or whether it also includes minimum sentences imposed in the discretion of the sentencing court. The court concluded that:
“The purpose of ORS 161.620 is to give trial judges flexibility in sentencing most remanded juveniles. The reading that is most consistent with that purpose is that a ‘minimum sentence’ is ‘mandatory’ if it gives the sentencing judge no flexibility, but requires the judge statutorily to impose a specified minimum sentence. That reading is straightforward, it gives meaning to all words in ORS 161.620, and it comports with the overall purpose of the statute.”
Jones,
315 Or at 230.
As a result, the court concluded that the trial court erred in imposing a 25-year mandated, minimum sentence under ORS 163.115(3)(b)'and (c) on a remanded juvenile convicted of minder and robbery.
Id.
at 231-32. A year later, the Supreme Court held that as a result of legislative changes in 1989, a person convicted of murder could no longer be given an indeterminate sentence for life under ORS 163.115(3)(a).
Morgan,
316 Or at 560. The statute and the guidelines permit the imposition of a determinate sentence for murder with the availability of post-prison supervision for life. Under the 1989 statutes, the combined holdings in
Jones
and
Morgan
mean that a juvenile remanded to adult court cannot receive a mandatory minimum sentence or an indeterminate sentence for life.
Defendant argues that the sentencing guidelines also cannot be applied to him because, as a “determinate sentencing scheme,” the guidelines equate to mandatory minimum sentences prohibited by ORS 161.620. The state responds that the legislature made no exception for remanded juveniles in the application of the guidelines and that a “determinate sentence” under the guidelines is not a
“mandatory minimum sentence” within the meaning of the statute.
In
Jones,
the court defined a “mandatory minimum sentence” to be not merely a determinate sentence, but one that trial courts are statutorily required to impose.
See also Morgan,
316 Or at 557 (holding that “a determinate sentence” under ORS 137.637 is one that is for a fixed period of time). While a presumptive sentence or a departure sentence under the guidelines imposes a determinative period of incarceration, the court retains some flexibility in determining the length of the sentence by the use of departure factors. The court can make findings that allow an upward or downward departure or can accept a sentencing agreement made between the state and the defendant in light of the presumptive sentence. OAR 253-07-003 through 253-07-005 (1989); OAR 253-08-001 through 253-08-007 (1989). In
Jones,
the court emphasized that ORS 161.620 focuses on whether there are options available to the sentencing court and not on whether the sentence is for a fixed period. 315 Or at 230-31. Those differences illustrate that a determinate sentence under the guidelines is not a “mandatory minimum sentence” within the meaning of ORS 161.620, and accordingly, we reject defendant’s argument that he cannot be sentenced under the guidelines.
On remand, the trial court is to impose sentence under the guidelines.
We note that Article I, section 16, imposes a ceiling on the sentence that the court can impose.
A statutory scheme under which defendant would receive a more severe sentence for murder than he would for aggravated murder violates Article I, section 16.
State v. Shumway,
291 Or 153, 164, 630 P2d 796 (1981). For crimes committed in 1991, three possible penalties for adults convicted of aggravated murder existed: death, life imprisonment without the possibility of release or parole, and life imprisonment with a minimum of 30 years’ confinement. ORS 163.105.
Sentencing for aggravated murder is provided for solely by
ORS 163.105 and is not covered under the guidelines. OAR 253-04-003 (1989). Under ORS 161.620 and ORS 163.105 (1989), a 17 year old convicted of aggravated murder could receive no less a sentence than a life imprisonment sentence with a 20-year minimum. It follows that a 16 year old convicted of murder could receive no greater sentence under Article I, section 16.
See also
OAR 253-08-004 (1989); OAR 253-08-003 (1993); OAR-213-08-003.
In light of our disposition we do not reach defendant’s remaining assignments of error.
Conviction for murder affirmed. Sentence vacated and remanded for resentencing.