State v. Hopkins

Court of Appeals of Oregon

State v. Hopkins

829 P.2d 97, 112 Or. App. 458, 1992 Ore. App. LEXIS 823

CourtCourt of Appeals of Oregon

DecidedApril 22, 1992

DocketC 90-05-32815; CA A67431

StatusPublished

This text of 829 P.2d 97 (State v. Hopkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hopkins, 829 P.2d 97, 112 Or. App. 458, 1992 Ore. App. LEXIS 823 (Or. Ct. App. 1992).

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Opinion

WARREN, P. J.

Defendant was convicted by a jury on one count of burglary in the first degree and two counts of assault in the fourth degree. The sentencing court imposed a downward durational departure, and the state appeals. We remand for resentencing.

Defendant, the victim’s former boyfriend, went to a trailer where the victim and her mother were staying. They let him in but, when he became abusive, they ordered him to leave. He refused and assaulted them. On the burglary conviction, defendant is in grid block 9 C, with a presumptive sentence of 56 to 60 months, on the basis of crime seriousness and criminal history. OAR ch 253, App 2. The presentence investigation report recommended a sentence of 60 months on the burglary charge and 6 months on each of the assault charges, all to run consecutively. The court sentenced defendant to 36 months incarceration on the burglary conviction and 6 months on each of the assault convictions, all to run concurrently. We have jurisdiction to review a downward departure under ORS 138.060(5) and ORS 138.222(7).¹

As we held in State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992), our review of a departure sentence under ORS 138.222 is for whether the reasons supporting the departure are substantial and compelling. The record of the sentencing proceeding here consists of a colloquy in which the court noted defendant’s voluntary intoxication, the fact that the incident arose from a domestic dispute and that it was not a common law burglary.

[461]*461The sentencing court gave no explanation why those circumstances were so exceptional that the imposition of the presumptive sentence would not accomplish the purposes of the guidelines. See State v. Wilson, supra, 111 Or App at 151; OAR 253-08-001. Accordingly, we remand for resentencing.

Convictions affirmed; remanded for resentencing.

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WARREN, P. J.

Defendant was convicted by a jury on one count of burglary in the first degree and two counts of assault in the fourth degree. The sentencing court imposed a downward durational departure, and the state appeals. We remand for resentencing.

Defendant, the victim’s former boyfriend, went to a trailer where the victim and her mother were staying. They let him in but, when he became abusive, they ordered him to leave. He refused and assaulted them. On the burglary conviction, defendant is in grid block 9 C, with a presumptive sentence of 56 to 60 months, on the basis of crime seriousness and criminal history. OAR ch 253, App 2. The presentence investigation report recommended a sentence of 60 months on the burglary charge and 6 months on each of the assault charges, all to run consecutively. The court sentenced defendant to 36 months incarceration on the burglary conviction and 6 months on each of the assault convictions, all to run concurrently. We have jurisdiction to review a downward departure under ORS 138.060(5) and ORS 138.222(7).¹

As we held in State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992), our review of a departure sentence under ORS 138.222 is for whether the reasons supporting the departure are substantial and compelling. The record of the sentencing proceeding here consists of a colloquy in which the court noted defendant’s voluntary intoxication, the fact that the incident arose from a domestic dispute and that it was not a common law burglary.

[461]*461The sentencing court gave no explanation why those circumstances were so exceptional that the imposition of the presumptive sentence would not accomplish the purposes of the guidelines. See State v. Wilson, supra, 111 Or App at 151; OAR 253-08-001. Accordingly, we remand for resentencing.

Convictions affirmed; remanded for resentencing.

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829 P.2d 97, 112 Or. App. 458, 1992 Ore. App. LEXIS 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hopkins-orctapp-1992.

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