BREWER, P. J.
Defendant appeals from his convictions for second-degree burglary, ORS 164.215, and first-degree criminal mischief, ORS 164.365. He raises two assignments of error, the first of which we reject without discussion. In his second assignment of error, defendant challenges the sentences that the trial court imposed under ORS 137.717(1)(b) (2009).
The presumptive sentence for each conviction was 13 months’ imprisonment. The court imposed the maximum durational departure sentence on each conviction — 26 months’ imprisonment — under ORS 137.717(3)(b) (2009), and provided that those sentences be served consecutively, for a total of 52 months’ incarceration. Defendant argues that the court erred by imposing a total of 52 months’ incarceration because his sentence for each offense was a “presumptive sentence” under ORS 137.717(1)(b) (2009), and that, because the court imposed the two sentences consecutively, the court was obliged to apply the “shift-to-I”
rule in the Oregon Sentencing Guidelines that applies to consecutive “presumptive sentences.” The application of that rule, defendant asserts,
would have resulted in a substantially shorter term of incarceration.
We affirm.
Defendant broke into a restaurant and damaged property. For that conduct, he was indicted for second-degree burglary and first-degree criminal mischief; he pleaded guilty to both offenses. At the sentencing hearing, the prosecutor argued that, in light of defendant’s extensive criminal history, which included multiple convictions for burglary, the proper sentence on each count was 13 months’ imprisonment, which is the presumptive sentence prescribed by the repeat property offender statute, ORS 137.717(1)(b) (2009). The prosecutor asked the court to impose upward departure sentences of 26 months’ imprisonment for each conviction, as provided by ORS 137.717(3)(b) (2009), and to impose the sentences consecutively, for a total of 52 months’ imprisonment.
Defendant replied that, because the 13-month sentence was the “presumptive sentence” under ORS 137.717(1)(b) (2009), the “shift-to-I” rule also was applicable to his sentence. Thus, defendant argued, the proper sentence on his conviction for criminal mischief was “10 days under Gridblock 3-1,” if that sentence were imposed consecutively to his conviction for second-degree burglary. The sentencing court rejected defendant’s argument and concluded that the 13-month presumptive sentence under ORS 137.717(l)(b) (2009) applied to both convictions. As noted, the court then imposed the maximum durational departure under ORS 137.717(3)(b) (2009) on each conviction, and it imposed the sentences consecutively for a total of 52 months’ imprisonment. This appeal followed.
Defendant renews his argument on appeal. He reasons that, because the 13-month sentence under ORS 137.717(1)(b) (2009) is designated as a “presumptive sentence,” the administrative rules applicable to presumptive sentences contained in the Oregon Sentencing Guidelines, including the “shift-to-I” rule, apply to sentences under ORS 137.717(1)(b) (2009). Defendant acknowledges that we rejected a similar argument in
State v. Young,
183 Or App 400, 52 P3d 1102 (2002). However, defendant argues that amendments to ORS 137.717(1)(b) in 1999 — in particular, the deletion of the phrase “the court shall sentence” and its replacement with the term “presumptive sentence” — have undercut our holding in
Young.
,
As we explained in
State v. Langdon,
151 Or App 640, 646, 950 P2d 410 (1997),
aff'd,
330 Or 72, 999 P2d 1127 (2000), OAR 213-012-0020(2), the “shift-to-I” rule, “addresses
only
consecutive sentences that involve presumptive or dis-positional departure sentences. Under the sentencing guidelines, a statutorily mandated sentence is neither a presumptive nor a departure sentence.” (Emphasis added.) Thus, if the 13-month sentence in ORS 137.717(1)(b) (2009), albeit described in the statute as a ‘presumptive sentence,’ is nonetheless a ‘statutorily mandated sentence’ for purposes of OAR 213-012-0020, then it is outside the scope of the ‘shift-to-I’ rule.” In arguing that the presumptive sentence prescribed by ORS 137.717(1)(b) (2009) is not a statutorily mandated sentence, defendant relies on the absence of mandatory language such as the term “shall” in ORS 137.717(1)(b) (2009). In defendant’s view, both
Young
and our recent opinion in
State v. Cervantes-Avila,
242 Or App 122, 255 P3d 536,
rev
den,
350 Or 573 (2011), are distinguishable because both cases involved sentences under statutes that contained the term “shall” — that is, ORS 137.717(1)(b) (1997) in
Young
and ORS 161.610 in
Cervantes-Avila.
In
Young,
the defendant was convicted of second-degree burglary and first-degree criminal mischief, among other offenses. 183 Or App at 402. The trial court sentenced the defendant to a 13-month prison term on the burglary conviction under ORS 137.717
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BREWER, P. J.
Defendant appeals from his convictions for second-degree burglary, ORS 164.215, and first-degree criminal mischief, ORS 164.365. He raises two assignments of error, the first of which we reject without discussion. In his second assignment of error, defendant challenges the sentences that the trial court imposed under ORS 137.717(1)(b) (2009).
The presumptive sentence for each conviction was 13 months’ imprisonment. The court imposed the maximum durational departure sentence on each conviction — 26 months’ imprisonment — under ORS 137.717(3)(b) (2009), and provided that those sentences be served consecutively, for a total of 52 months’ incarceration. Defendant argues that the court erred by imposing a total of 52 months’ incarceration because his sentence for each offense was a “presumptive sentence” under ORS 137.717(1)(b) (2009), and that, because the court imposed the two sentences consecutively, the court was obliged to apply the “shift-to-I”
rule in the Oregon Sentencing Guidelines that applies to consecutive “presumptive sentences.” The application of that rule, defendant asserts,
would have resulted in a substantially shorter term of incarceration.
We affirm.
Defendant broke into a restaurant and damaged property. For that conduct, he was indicted for second-degree burglary and first-degree criminal mischief; he pleaded guilty to both offenses. At the sentencing hearing, the prosecutor argued that, in light of defendant’s extensive criminal history, which included multiple convictions for burglary, the proper sentence on each count was 13 months’ imprisonment, which is the presumptive sentence prescribed by the repeat property offender statute, ORS 137.717(1)(b) (2009). The prosecutor asked the court to impose upward departure sentences of 26 months’ imprisonment for each conviction, as provided by ORS 137.717(3)(b) (2009), and to impose the sentences consecutively, for a total of 52 months’ imprisonment.
Defendant replied that, because the 13-month sentence was the “presumptive sentence” under ORS 137.717(1)(b) (2009), the “shift-to-I” rule also was applicable to his sentence. Thus, defendant argued, the proper sentence on his conviction for criminal mischief was “10 days under Gridblock 3-1,” if that sentence were imposed consecutively to his conviction for second-degree burglary. The sentencing court rejected defendant’s argument and concluded that the 13-month presumptive sentence under ORS 137.717(l)(b) (2009) applied to both convictions. As noted, the court then imposed the maximum durational departure under ORS 137.717(3)(b) (2009) on each conviction, and it imposed the sentences consecutively for a total of 52 months’ imprisonment. This appeal followed.
Defendant renews his argument on appeal. He reasons that, because the 13-month sentence under ORS 137.717(1)(b) (2009) is designated as a “presumptive sentence,” the administrative rules applicable to presumptive sentences contained in the Oregon Sentencing Guidelines, including the “shift-to-I” rule, apply to sentences under ORS 137.717(1)(b) (2009). Defendant acknowledges that we rejected a similar argument in
State v. Young,
183 Or App 400, 52 P3d 1102 (2002). However, defendant argues that amendments to ORS 137.717(1)(b) in 1999 — in particular, the deletion of the phrase “the court shall sentence” and its replacement with the term “presumptive sentence” — have undercut our holding in
Young.
,
As we explained in
State v. Langdon,
151 Or App 640, 646, 950 P2d 410 (1997),
aff'd,
330 Or 72, 999 P2d 1127 (2000), OAR 213-012-0020(2), the “shift-to-I” rule, “addresses
only
consecutive sentences that involve presumptive or dis-positional departure sentences. Under the sentencing guidelines, a statutorily mandated sentence is neither a presumptive nor a departure sentence.” (Emphasis added.) Thus, if the 13-month sentence in ORS 137.717(1)(b) (2009), albeit described in the statute as a ‘presumptive sentence,’ is nonetheless a ‘statutorily mandated sentence’ for purposes of OAR 213-012-0020, then it is outside the scope of the ‘shift-to-I’ rule.” In arguing that the presumptive sentence prescribed by ORS 137.717(1)(b) (2009) is not a statutorily mandated sentence, defendant relies on the absence of mandatory language such as the term “shall” in ORS 137.717(1)(b) (2009). In defendant’s view, both
Young
and our recent opinion in
State v. Cervantes-Avila,
242 Or App 122, 255 P3d 536,
rev
den,
350 Or 573 (2011), are distinguishable because both cases involved sentences under statutes that contained the term “shall” — that is, ORS 137.717(1)(b) (1997) in
Young
and ORS 161.610 in
Cervantes-Avila.
In
Young,
the defendant was convicted of second-degree burglary and first-degree criminal mischief, among other offenses. 183 Or App at 402. The trial court sentenced the defendant to a 13-month prison term on the burglary conviction under ORS 137.717 (1997), and it also imposed a 13-month prison term on the defendant’s criminal mischief conviction under ORS 137.717 (1997). The court imposed the sentences consecutively. On appeal, the defendant challenged the imposition of consecutive sentences, arguing that the court should have applied the “shift-to-I” rule in determining the length of the consecutive sentence that it imposed on the criminal mischief conviction.
Id.
In rejecting the defendant’s argument, we noted two salient features of ORS 137.717 (1997). First, we noted the mandatory wording of ORS 137.717(1)(b) (1997) — that is— “the court
shall
sentence the person to a term of at least 13 months of incarceration.”
Id.
at 404 (emphasis in original). Second, we referred to ORS 137.717(3) (1997), which provided:
“The court may impose a sentence other than the sentence provided by subsection (1) of this section if the court imposes:
“(a) A longer term of incarceration that is otherwise required or authorized by law; or
“(b) A departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons.”
ORS 137.717(3) (1997), we reasoned, “makes it clear that the specified sentences [in subsection (1)(b)] are to be imposed
unless
a different sentence is authorized by subsection 3.”
Young,
183 Or App at 405 (emphasis added). Because “no other statute or regulation authorize[d] a longer sentence, and no departure findings were made,” we concluded that the 13-month sentences were required by ORS 137.717(1)(b) (1997).
Id.
As we explained,
“ORS 137.717 (1997) requires the trial court to impose a specified minimum sentence. Accordingly, as was true in
Langdon,
calculation of defendant’s sentence using the guideline rules that defendant asserts are applicable is inconsistent with ORS 137.717 (1997). The 200-percent rule and the shift-to-Column-I rule require that the calculation of defendant’s incarceration term begin with defendant’s
presumptive sentence under the guidelines.
Using a defendant’s presumptive sentence under the guidelines to calculate the defendant’s sentence is in direct conflict with the requirement of ORS 137.717 (1997) that a defendant coming within that statute
shall
be sentenced to the minimum term of incarceration specified in the statute.
“As we held in
State v. Bagley,
158 Or App 589, 595, 976 P2d 75 (1999), ORS 137.717 (1997) should not be read as an amendment of the sentencing guidelines that creates new presumptive sentences. In
Bagley,
we explained that the only circumstance in which the legislature indicated that the guidelines may affect the minimum sentences of ORS 137.717 (1997) is specified in ORS 137.717(3)(b) (1997).
Id.
As discussed above, that subsection allows a sentence other than the one designated in the statute to be imposed only if the court finds substantial and compelling reasons to impose a departure under the guidelines or if a longer sentence is required or authorized by law. Neither of those circumstances is present here.”
Id.
at 406-07 (emphasis in original). Thus, it was not merely the presence of mandatory text in ORS 137.717(l)(b) (1997)
that took the 13-month sentence out of the sweep of OAR 213-012-0020, but also the legislature’s command, in ORS 137.717(3) (1997), that a 13-month sentence be imposed
unless
the court decided to impose a
longer
sentence that was otherwise authorized by law.
Defendant is correct that the legislature deleted the term “shall” from ORS 137.717(1)(b) in amending the statute in 1999.
See
Or Laws 1999, ch 1022 §§ 2, 4, 7 (1999). However, defendant misperceives the effect of that deletion, because the legislature did not alter the portion of ORS 137.717(3) (1997) that we relied on in
Young.
The 2009 version of ORS 137.717(3) that applies to this case is virtually identical to the 1997 version of ORS 137.717(3) that we construed in
Young.
Accordingly, ORS 137.717(3) (2009) required the sentencing court to impose the “presumptive sentence” under ORS 137.717(1)(b) (2009)
unless
the court decided to impose a
longer
sentence that was otherwise authorized by law. Because the 13-month sentence prescribed by ORS 137.717(1)(b) (2009) is a “statutorily mandated” sentence and, thus, is not within the scope of OAR 213-012-0020, the sentencing court did not err in declining to apply the “shift-to-I” rule when it imposed consecutive sentences in this case.
Affirmed.