State v. Gardner-Rolph

No. 1084 December 17, 2025 681

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TREBOR B. GARDNER-ROLPH,

Defendant-Appellant.

Washington County Circuit Court

22CR05611; A181954

Erik M. Buchér, Judge.

Argued and submitted April 3, 2025.

Stacy M. Du Clos, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

Timothy A. Sylwester, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

JACQUOT, J.

Vacated and remanded for resentencing.

Tookey, P. J., dissenting.

682 State v. Gardner-Rolph

Cite as 345 Or App 681 (2025) 683

JACQUOT, J.

Defendant, when he was 13 and 14 years old, com-

mitted sex offenses against his stepsister, who is five years

younger. He pleaded guilty to those offenses after he turned

18, and the plea agreement left sentencing open. During

sentencing, he sought probation rather than incarceration

and argued, among other reasons, that probation was appro-

priate because he was employed at the time of arrest and

had no other involvement with the justice system, despite

having experienced significant trauma and exposure to vio-

lence and adults with substance addictions throughout his

childhood. He was sentenced to five years of incarceration.

As explained in more detail below, he challenges the way the

court imposed the sentences.

Defendant argues that the court was required to

sentence him according to ORS 161.740, which provides cir-

cumstances that a court “shall” consider when imposing a

sentence on “a person who was under 18 years of age at the

time of committing the offense[s,]” and erred by failing to do

so.1 ORS 161.740 was passed as a component of a comprehen-

sive bill reforming the state’s legal approach to juveniles who

have engaged in conduct that would be criminal if committed

by an adult. Staff Measure Summary, Senate Committee on

Judiciary, Senate Bill (SB) 1008 A, Apr 24, 2019. Defendant

argues that the trial court erred in its interpretation of ORS

161.740 and by applying the adult presumptive sentencing

guidelines instead. The state argues that we cannot reach

his arguments as review is precluded under ORS 138.105(8),

which bars judicial review of the length of sentences imposed

under the presumptive sentencing guidelines. In this opin-

ion, after providing pertinent background information, we

address the question of reviewability. Concluding that the

sentencing process used by the court in this instance is

reviewable, we proceed with statutory interpretation of ORS

161.740. We consider the text and context of the statute—

particularly how it relates to provisions of the adult criminal

code and juvenile delinquency code—and the legislative his-

tory. We conclude that defendant should have been sentenced

1

Defendant raises five assignments of error, the first of which is dispositive.

We, therefore, do not consider defendant’s second through fifth assignments of error.

684 State v. Gardner-Rolph

in accordance with ORS 161.740, and we therefore vacate

and remand for resentencing.

I. BACKGROUND

The relevant procedural facts are undisputed.

Defendant was over the age of 18 when he was indicted for

sexual conduct against his stepsister that had happened

years earlier. He pleaded guilty to first-degree sodomy, ORS

163.405 (Count 3), and three counts of first-degree sexual

abuse, ORS 163.427 (Counts 7, 8, and 9). The court dismissed

the remaining charges pursuant to a plea agreement, which

left sentencing open. He was 21 years old at the time of sen-

tencing. The sentencing court sentenced him as an adult in

accordance with ORS 137.669 and the sentencing guidelines

established by the Oregon Criminal Justice Commission

(OCJC), OAR 213-004-0001.

At sentencing, the state asked the court to impose

consecutive presumptive sentences in accordance with ORS

137.669 and OAR 213-004-0001, for a total sentence of 173

months.2 Defendant argued that “[t]he primary criteria an

adult court must consider when sentencing someone who

was under 18 years of age when they committed the offense

is ORS 161.740.”3 Defendant argued that the court should

2

ORS 137.669 provides, in relevant part: “The guidelines adopted under

ORS 137.667, together with any amendments, supplements or repealing provi-

sions, shall control the sentences for all crimes committed after the effective date

of such guidelines.”

3

ORS 161.740 provides:

“(1) A court may not impose a sentence of life imprisonment without the

possibility of release or parole on a person who was under 18 years of age at

the time of committing the offense.

“(2) In determining the appropriate sentence for a person who was under

18 years of age at the time of committing the offense, if the court is provided

information concerning the following circumstances, or any other relevant

circumstance, the court shall consider those circumstances in imposing the

sentence:

“(a) The person’s age, intellectual capacity and impetuousness at the

time of the offense.

“(b) The person’s family and community environment, history of trauma

and prior involvement in the juvenile dependency system at the time of the

offense.

“(c) The person’s ability at the time of the offense to appreciate the risks

and consequences of the conduct constituting the offense.

“(d) The person’s community involvement prior to the offense.

Cite as 345 Or App 681 (2025) 685

impose probation based on the enumerated reasons under

ORS 161.740 including submission of a comprehensive psy-

chosexual evaluation conducted by a licensed psychologist,

as well as factors provided in State v. Rodriguez/Buck, 347

Or 46, 217 P3d 659 (2009). The Department of Community

Corrections (DCC) requested that the court sentence defen-

dant to five years of probation, including imposition of sev-

eral conditions such as sexual offender registration and sub-

stance abuse evaluation and treatment if recommended by

an evaluator. The DCC officer wrote in their extensive report

that defendant “experienced one of the most disturbing child-

hoods I have come across in my twenty-seven years in the

corrections field,” and that throughout his childhood, defen-

dant was not taught anything “much beyond violence” and

was mostly left to fend for himself.

The sentencing court rejected defendant’s argument

that ORS 161.740 controlled and determined that the adult

sentencing guidelines and grid applied to defendant, and

“(e) Any peer or familial pressure to which the person was subjected at

the time of the offense.

“(f) Whether and to what extent an adult was involved in the commission

of the offense.

“(g) The person’s capacity for rehabilitation.

“(h) The person’s school records and special education evaluations.

“(i) Any other mitigating factors or circumstance presented by the

person.

“(3)(a) If the court is provided with a report of a mental health evaluation

of the person, the court shall give the evaluation substantial weight in impos-

ing the sentence if:

“(A) The evaluation was conducted by a psychiatrist or psychologist

whose primary practice involves the treatment of adolescents; and

“(B) The report includes the assessment of the person’s degree of insight,

judgment, self-awareness, emotional regulation and impulse control.

“(b) Paragraph (a) of this subsection does not constitute a requirement

that a person obtain or submit an evaluation for sentencing.

“(4) When sentencing a person who was under 18 years of age at the time

of committing the offense, under no circumstances may the court consider

the age of the person as an aggravating factor.

“(5) When sentencing a person who was under 18 years of age at the time

of committing an offense to a term of imprisonment, the court shall indicate

in the judgment:

“(a) The age of the person at the time of committing the offense; and

“(b) That the person is eligible for a hearing and release under ORS

144.397.”

686 State v. Gardner-Rolph

that mitigating or aggravating factors could be considered

for departure from the presumptive sentences. The sen-

tencing court acknowledged that had defendant received

a risk assessment, treatment or other interventions when

he was a juvenile, his risk of reoffending may have been

exceedingly low, but that “[h]e’s not a juvenile. He was

when [the offenses] happened. He’s not now.” 4 The court

sentenced defendant within the presumptive range of sen-

tences according to the adult sentencing guidelines and

imposed a 60-month sentence on Count 3; 28 months on

Count 7 to be served concurrently; 40 months on Count 8

to be served concurrently; and 45 months on Count 9 to be

served concurrently. The court also imposed 10 years (minus

time served) of post-prison supervision and several sex-

offender-related conditions.

II. REVIEWABILITY

The state argues that ORS 138.105(8) forecloses our

authority to review defendant’s sentence and that we “must

summarily affirm the judgment” as unreviewable under a

line of cases including State ex rel Huddleston v. Sawyer, 324

Or 597, 605-07, 932 P2d 1145, cert den, 522 US 994 (1997).

We disagree.

ORS 138.105 provides, in relevant part:

“(7) Except as otherwise provided in subsections (8)

and (9) of this section, the appellate court has authority to

review any sentence to determine whether the trial court

failed to comply with requirements of law in imposing or

failing to impose a sentence.

“(8) Except as otherwise provided in subsection (9) of

this section, for a sentence imposed on conviction of a felony

committed on or after November 1, 1989:

“(a) The appellate court has no authority to review:

“(A) A sentence that is within the presumptive sen-

tence prescribed by the rules of the [OCJC].”

The state argues that because defendant received

a guideline sentence, that ORS 138.105(8) precludes review

4

It is unclear from the record whether the sentencing court believed that

ORS 161.740 directed consideration of circumstances mitigating or aggravating

the presumptive sentences or whether it believed that ORS 161.740 did not apply

in defendant’s circumstance at all.

Cite as 345 Or App 681 (2025) 687

even when, as here, a defendant argues that the trial court’s

error was to sentence defendant under the guidelines, rather

than a separately applicable statute. Defendant, in contrast,

argues that the plain terms of ORS 138.105(7) provide for

review because it was error for the trial court to apply a grid

block sentence pursuant to the guidelines in contravention

of ORS 161.740.

Although ORS 138.105(8) precludes judicial review

of a challenge to the length of an imposed presumptive sen-

tence, our case law establishes that it does not preclude

review of other challenges. We begin by noting that ORS

138.105(7) and (8) were drawn largely from former ORS

138.222, repealed by Or Laws 2017, ch 529, § 26.5 Provisions

of ORS 138.105 that restate prior statutory provisions are

controlled by prior precedent construing those provisions,

absent indication of an intent to displace prior precedent.

See, e.g., State v. Rusen, 369 Or 677, 692-94, 509 P3d 628

(2022) (discussing role of prior precedent in construing ORS

138.105); State v. Davis-McCoy, 300 Or App 326, 328-30 &

n 2, 454 P3d 48 (2019) (same).

We previously construed the verbatim predecessors

to ORS 138.105(7) and (8)(a)(A), with respect to felony

sentences—to preclude review only of challenges to the

length of a guideline sentence, not challenges implicating

aspects of the sentence apart from its length. State v.

Vargas, 271 Or App 675, 677-78, 352 P3d 743 (2015); State

v. Casiano, 214 Or App 509, 515-16, 166 P3d 599 (2007). In

Vargas, 271 Or App at 678, quoting Casiano, 214 Or App at

515, we explained that former “ORS 138.222(2)(a) addresses

challenges to the length of a sentence that is within the pre-

sumptive range; it does not preclude review of ‘aspects of a

5

As applicable to this case, ORS 138.105(7), which was enacted by Or Laws

2017, ch 529, § 13, was drawn from former ORS 138.222(4)(a) and expanded the

scope of appellate review to apply to appeals from judgments of conviction for

misdemeanors (not just felonies committed after November 1, 1989). Oregon Law

Commission Report, Joint Subcommittee on Public Safety, SB 896, June 5, 2017,

21 & n 20. Similarly, ORS 138.105(8)(a)(A) was “intended to restate the limits on

reviewability of sentences imposed on convictions for felonies * * * subject to the

[OCJC] Sentencing Guidelines” that had previously been set forth in former ORS

138.222(2)(a) through (c). Id. at 21.

When citing former ORS 138.222 in this opinion, for readability and because

none of the amendments to the language of that statute are material to our

analysis in this case, we do not include a year.

688 State v. Gardner-Rolph

presumptive sentence other than the length of the sentence

as imposed.’ ” (Internal brackets omitted.). We determined

that “[b]ecause [the] defendant [was] challeng[ing] the court’s

failure to merge the findings of guilt, not the length of the

concurrent, presumptive sentences,” review was not pre-

cluded. Vargas, 271 Or App at 678.

Defendant’s appeal in this case is similar to those

in Vargas and Casiano. Defendant challenges a ruling by

the court pertaining to the applicability of ORS 161.740. As

was the case with its statutory predecessor, ORS 138.105

(8)(a)(A) does not preclude review of the sentencing chal-

lenge at issue in this case.

The conclusion that defendant’s challenge is review-

able is also supported by State v. Craig, 337 Or App 38, 41,

563 P3d 389 (2024), in which we determined that, although

pursuant to ORS 138.105(5), we have “ ‘no authority to review

the validity of the defendant’s plea of guilty or no contest, or

a conviction based on the defendant’s plea of guilty or no con-

test,’ subject to exceptions not applicable here,” we did have

authority pursuant to ORS 138.105(7) to review a challenge

based on a sentencing court’s purported “ ‘fail[ure] to comply

with requirements of law in imposing or failing to impose

a sentence.’ ” In Craig, we explained that a challenge seek-

ing “the court to comply with the requirements of law for

imposing a sentence on a guilty or no-contest plea is funda-

mentally different from challenging the validity of the plea

or conviction.” 337 Or App at 41. Craig is analogous to this

case because defendant’s challenge is about whether the sen-

tencing court complied with the requirements of law when

imposing the sentence on defendant.

The parties dispute the applicability of State v.

Althouse, 359 Or 668, 375 P3d 475 (2016), in which the

Supreme Court determined a presumptive sentence imposed

pursuant to ORS 137.719 was reviewable. The court deter-

mined that former ORS 138.222 did not bar review in that

case because the imposed sentence was not prescribed by the

OCJC rules, rather it was prescribed by a separate statute,

ORS 137.719. Althouse, 359 Or at 678. Defendant argues

that Althouse supports review of his sentence because,

even though the court imposed a presumptive sentence

Cite as 345 Or App 681 (2025) 689

prescribed by the rules of the OCJC, the court should not

have done so. The state argues that defendant “misses the

point” of Althouse, and that, consistent with Althouse, defen-

dant’s sentence is unreviewable because it was an imposi-

tion of a presumptive sentence prescribed by the rules of the

OCJC. Althouse makes no pronouncement that a challenged

sentence is unreviewable when a presumptive sentence pre-

scribed by the rules of the OCJC is erroneously imposed on

a defendant when a separate statute governs sentencing for

the offenses. For the reasons provided below, we determine

that a presumptive sentence prescribed by the rules of the

OCJC should not have been imposed on defendant, and thus,

Althouse does not bar review.

Arguing for a different conclusion, the state points

to Huddleston, 324 Or at 605-07; State v. Fernandez, 334

Or App 81, 87, 555 P3d 350, rev allowed, 373 Or 121 (2024);

and State v. Guyton, 126 Or App 143, 149, 868 P2d 1335,

rev den, 319 Or 36 (1994), overruled by State v. Hoffmeister,

164 Or App 192, 195-97, 990 P2d 910 (1999).6 With respect

to Huddleston, we have already rejected the state’s proffered

interpretation of that case in Casiano, 214 Or App at 515:

“[N]othing in [Huddleston] indicates that aspects of a pre-

sumptive sentence other than the length of the sentence as

imposed are unreviewable under [former] ORS 138.222(2)(a)

and 138.222(4)(a).”7 (Emphasis in Casiano.) The state’s reli-

ance on Fernandez, 334 Or App at 87, is misplaced because

that case involved a challenge to the length of an imposed sen-

tence. The defendant argued that the imposed sentence was

disproportionately too long. Id. at 82. Because we determine

6

Although the state cites Guyton, in Hoffmeister, 164 Or App at 195-97, we

determined that appellate court review was not precluded when a “defendant

was initially sentenced under grid block 7-I,” and “later received a twenty-one

month sanction that is not within the presumptive sentence prescribed by grid

block 7-I.” We explained that “to the extent that Guyton is inconsistent with our

disposition of [Hoffmeister], Guyton is overruled.” Id. at 196.

7

Relying on Huddleston, the dissent suggests that reviewability may only be

reached in this case if ORS 161.740 is considered to have “ ‘impliedly repealed’ ”

sentencing guidelines for offenders in the same category as defendant, and “that

repeal by implication * * * must be established by ‘plain, unavoidable, and irrec-

oncilable repugnancy.’ ” 345 Or App at 720-21 (Tookey, P. J., dissenting). Our task

is to faithfully engage with what result the legislature intended by its passage

of ORS 161.740. See State v. Gaines, 346 Or 160, 166, 206 P3d 1042 (2009) (pro-

viding that we consider the text, context, and legislative history to resolve the

legislature’s intent).

690 State v. Gardner-Rolph

below that the legislature mandated a separate sentencing

structure for a certain class of offenders who were juveniles

at the time their offenses were committed—a qualitative and

not a quantitative difference—the challenge raised by defen-

dant is reviewable, and we must determine ORS 161.740’s

role as it relates to defendant’s sentencing.

III. ANALYSIS OF ORS 161.740

To determine the meaning of a statute, we attempt

to determine the legislative intent, as evidenced by the text

and context of the statute and any legislative history that is

useful to the analysis. State v. Gaines, 346 Or 160, 171-72,

206 P3d 1042 (2009). “[W]e have an independent duty to cor-

rectly interpret any statute that comes before us, regardless

of the arguments and interpretations offered by the parties.”

Strasser v. State of Oregon, 368 Or 238, 260, 489 P3d 1025

(2021).

We presume that the legislature intended terms

of common usage “to have [their] plain, natural, and ordi-

nary meaning.” Gaines, 346 Or at 175 (citing PGE v. Bureau

of Labor and Industries, 317 Or 606, 611, 859 P2d 1143

(1993)); Jenkins v. Board of Parole, 356 Or 186, 194, 335

P3d 828 (2014) (dictionary definitions can provide useful

insight about ordinary meaning). We accept an express

definition for a statutory term, if one is provided by the

legislature. See State v. Kimble, 236 Or App 613, 618-19,

237 P3d 871 (2010) (explaining that when an express defi-

nition is not provided by the legislature, we employ other

interpretive methods). We generally “assume that the legis-

lature intended the same word to have the same meaning

throughout related statutes unless something in the text

or context of the statute suggests a contrary intention.”

Village at Main Street Phase II v. Dept. of Rev., 356 Or 164,

175, 339 P3d 428 (2014). “If the legislature uses different

terms in statutes, we generally will assume that the legis-

lature intends different meanings for those terms.” State v.

Newell, 238 Or App 385, 392, 242 P3d 709 (2010) (internal

quotation marks and citation omitted).

We examine the meaning of statutory text in context,

which includes, as relevant to this case, “other provisions of

Cite as 345 Or App 681 (2025) 691

the statute of which the disputed provision is part,” Hale v.

Klemp, 220 Or App 27, 32, 184 P3d 1185 (2008), other stat-

utes in the same chapter in which the provision has been

codified, see Morsman v. City of Madras, 203 Or App 546,

561-62, 126 P3d 6, rev den, 340 Or 483 (2006) (so analyzing),

“other provisions of the bill originally approved by the legis-

lature,” Warrenton Fiber Co. v. Dept. of Energy, 283 Or App

270, 277, 388 P3d 372 (2016), and “related statutes,” State v.

Klein, 352 Or 302, 309, 283 P3d 350 (2012). The legislative

history of other related statutes is “considered part of the

broader context of a statute.” State v. Stamper, 197 Or App

413, 420, 106 P3d 172, rev den, 339 Or 230 (2005).

We begin our consideration of ORS 161.740 by inter-

preting when ORS 161.740 applies to sentencing a defendant,

before turning to the relationship between ORS 161.740 and

presumptive sentences.

A. When ORS 161.740 Applies in Sentencing a Defendant

ORS 161.740 “appl[ies] to sentences imposed on or

after January 1, 2020,” Or Laws 2019, ch 634, § 32, for con-

victions in adult criminal court. The text of ORS 161.740(1)

provides that a court may not impose a life sentence “on a

person who was under 18 years of age at the time of commit-

ting the offense.” ORS 161.740(2) provides that in sentencing

“a person who was under 18 years of age at the time of com-

mitting the offense,” the court “shall consider” the circum-

stances enumerated in the statute as well as “any other rel-

evant circumstances.”8 Separately, ORS 419C.005 provides

that “[t]he juvenile court has exclusive original jurisdiction

in any case involving a person who is under 18 years of age

and who has committed an act that is a violation * * *.” Thus,

when ORS 161.740 is read in context, it governs sentencing

if (1) the offense was committed when the defendant was

under 18 years of age, (2) the defendant was convicted in

adult court, either because the defendant was over 18 years

of age when indicted or because the defendant was

waived into adult court pursuant to ORS 419C.349, and

(3) the sentence was imposed on or after January 1, 2020.

8

Similarly, ORS 161.740(4) and (5) each contain the phrase, “When sentenc-

ing a person who was under 18 years of age at the time of committing an offense

* * *.”

692 State v. Gardner-Rolph

B. The Relationship Between ORS 161.740 and Presumptive

Sentences

Turning to the relationship between ORS 161.740

and presumptive sentences, there are at least two plausi-

ble interpretations. The first being that ORS 161.740 func-

tions as an overlay to presumptive sentencing prescribed by

other statutes and the OCJC guidelines, meaning that the

presumptive sentences still apply but that the court must

consider the dictates of ORS 161.740 in fashioning the ulti-

mate sentence.9 For example, under that interpretation, if

a court were imposing a sentence for a conviction subject to

the OCJC guidelines presumptive sentences, ORS 161.740(2)

and (3) would require the court to consider the provided crite-

ria in determining whether to impose a sentence at the high

or low end of the grid block and whether there is a “substan-

tial and compelling reason[ ] to impose a departure,” OAR

213-008-0001; see also ORS 137.671 (authorizing a court to

depart from a presumptive sentence “if it finds there are sub-

stantial and compelling reasons justifying a deviation”).

A second plausible interpretation is that when ORS

161.740 was enacted, it displaced application of the OCJC

presumptive sentencing guidelines to defendants sen-

tenced for conduct that they engaged in before they reached

18 years of age.10 Under that interpretation, ORS 161.740

shifted the power to determine how to sentence defendants

whose offense occurred before adulthood from the OCJC

back to the court, and directed consideration of the sentence

pursuant to the criteria expressed in ORS 161.740.

C. Text and Context

The text of ORS 161.740 does not unambiguously

support either interpretation. A number of other statutes

make their relationship to the OCJC guidelines clear through

9

The state argues that ORS 161.740 does not displace the sentencing guide-

lines prescribed by the OCJC rules and that it “merely requires the court to ‘con-

sider’ certain factors, and it does not either require or authorize a court to impose

any particular disposition based upon that consideration. * * * [O]n its face, [it

does not] purport to authorize * * * a downward or dispositional departure that

would not otherwise be allowed under the guidelines.”

10

Defendant argues that “ORS 161.740 overrides the [OCJC sentencing]

guidelines,” and “prescribes the sentence that a court may impose for a person

whose offenses [occurred] when they were under 18.”

Cite as 345 Or App 681 (2025) 693

explicit language; ORS 161.740 does not. For example, ORS

161.737, the statute immediately preceding ORS 161.740,

makes clear that its function is to “constitute substantial and

compelling reasons to depart from the presumptive sentence

as provided by the rules of the [OCJC],” with regard to sen-

tencing certain “dangerous offender[s],” using phrases that

explicitly reference the OCJC, including “guidelines,” “depar-

ture,” and “presumptive sentence.” ORS 161.740 does not

provide any reference to the OCJC, and it does not include

the terms “rules,” “guidelines,” “departure,” or “presump-

tive sentence.” The legislature has used such phrases when

enacting statutes designed to overlay the guidelines (such as

ORS 161.737), and thus, the legislature understands how to

clearly craft statutes that are meant to function in tandem

with the guidelines, and the exclusion of such phrases may

suggest that the legislature did not intend for ORS 161.740 to

overlay the guidelines. See, e.g., Blacknall v. Board of Parole,

348 Or 131, 140-41, 229 P3d 595 (2010) (legislative silence

can be an indicator of policy choices). However, because leg-

islative silence is not the strongest indicator of legislative

intent, the absence of any such phrases does not strongly sup-

port one interpretation or the other. See, e.g., Lake Oswego

Preservation Society v. City of Lake Oswego, 360 Or 115, 129,

379 P3d 462 (2016) (legislative silence is often unhelpful).

The plain text of ORS 161.740 suggests that the stat-

ute was intended to provide the sentencing court with more

discretion regarding its sentencing decisions. Rather than

referencing a presumptive sentence, ORS 161.740(2) refers to

“the appropriate sentence.” (Emphasis added.) Although the

phrase “appropriate sentence” does not appear in any other

statutes or the Oregon Administrative Rules, the phrases

“appropriate placement” and “appropriate type of placement”

appear in the juvenile delinquency code, regarding the juve-

nile court’s discretionary authority to determine whether an

adjudicated youth should receive any type of medical or psy-

chological treatment in lieu of or in addition to another dis-

position. ORS 419C.507. “Appropriate” also appears in other

statutes regarding a court’s discretionary authority.11 See,

11

OAR 213-002-0001(3)(d) provides:

“Subject to the discretion of the sentencing judge to deviate and

impose a different sentence in recognition of aggravating and mitigating

694 State v. Gardner-Rolph

e.g., ORS 419C.462 (juvenile court’s discretion to order an

adjudicated “youth to perform appropriate community ser-

vice”); ORS 419C.465 (juvenile court’s discretion to order an

adjudicated youth to perform “appropriate” service for the

victim); ORS 419C.133 (“No youth under 12 years of age shall

be placed in detention except pursuant to judicial review

and written findings * * *. * * * [A] juvenile court judge * * *

must determine * * * that appropriate alternative methods

of controlling the youth’s behavior are unavailable.”); ORS

419C.489 (juvenile court may indicate, in general terms,

medical care or special treatment “appropriate” for an adju-

dicated youth); ORS 419C.441 (juvenile court may order that

an adjudicated youth undergo “appropriate care or treat-

ment”); ORS 426.125 (for an individual who has been deter-

mined to be mentally ill, should the court order conditional

release, the court may establish “appropriate” conditions).

The legislature’s decision to require a court to

impose an “appropriate sentence” under ORS 161.740(2) is

in contrast to the legislature’s choice of including the phrase

“presumptive sentence” or “presumptive sentence range” in

other criminal code statutes, such as ORS 135.407 and ORS

161.737. See Newell, 238 Or App at 392 (different terms used

in different statutes typically indicates a different intended

meaning). “Presumptive sentence” is defined to mean

“the sentence provided in a grid block for an offender clas-

sified in that grid block by the combined effect of the crime

seriousness ranking of the current crime of conviction and

the offender’s criminal history or a sentence designated as

a presumptive sentence by statute.”

OAR 213-003-0001(16). The OCJC presumptive sentence

guidelines were established to “reduce[ ] the trial court’s

discretion in sentencing.” Rodriguez/Buck, 347 Or at 86

(De Muniz, C. J., concurring in part, dissenting in part);

see State v. Davis, 315 Or 484, 486-87, 847 P2d 834 (1993)

circumstances, the appropriate punishment for a felony conviction should

depend on the seriousness of the crime of conviction when compared to all

other crimes and the offender’s criminal history.”

(Emphasis added.) From that, we draw two meaningful points of consideration:

(1) that the use of “appropriate” in OAR 213-002-001(3)(d) references a court’s

exercise of discretion, and (2) that the OAR includes an emphasis on punishment

that is absent from ORS 161.740.

Cite as 345 Or App 681 (2025) 695

(discussing the creation and purposes of the guidelines). The

legislature has used the phrase “presumptive sentence” in a

great number of criminal statutes when indicating that there

is a presumptive sentence—based either in the OCJC guide-

lines or in an independent statute—that ought to be imposed

unless a court determines otherwise. See ORS 135.407; ORS

137.712 - 137.725; ORS 161.737; ORS 164.063; ORS 475.935

(including the phrase “presumptive sentence”). That the leg-

islature did not use the phrase “presumptive sentence” in

ORS 161.740 suggests that the legislature did not intend

ORS 161.740 to function as an overlay to a presumptive sen-

tence provided by another source of law (either by statute or

OCJC guidelines).

In order to better understand the plain text of

ORS 161.740, we interpret the meaning of “determining the

appropriate sentence” by considering the ordinary meaning

of “determine” and “appropriate.” Apt definitions of “deter-

mine” are “to come to a decision concerning as the result

of investigation or reasoning” and “to settle or decide by

choice of alternatives or possibilities.” Webster’s Third New

Int’l Dictionary 616 (unabridged ed 2002). The apt definition

of “appropriate” is “correct or suitable for some purpose or

situation.” Merriam-Webster Unabridged Dictionary, https://

unabridged-merriam-webster-com/unabridged/appropriate

(accessed Dec 4, 2025); Webster’s at 106 (“specially suitable”).

Thus, ORS 161.740 directs a court to utilize investigation or

reasoning to come to a decision about the correct or suitable

sentence. Such an interpretation is supported by the inclu-

sion of the term consider—“the court shall consider” the

enumerated circumstances and any others that are relevant.

ORS 161.740(2). The applicable definition of “consider” is

“to reflect on : think about with a degree of care or caution.”

Webster’s at 483. The plain text of ORS 161.740 strongly indi-

cates that the legislature intends that the sentencing court

exercise discretion, including reflecting on the relevant cir-

cumstances, with care or caution, in determining the sen-

tence of an adult convicted for conduct that occurred while

they were a juvenile.

Given that the meaning of “determining the appropri-

ate sentence” indicates a significant amount of discretionary

696 State v. Gardner-Rolph

decision-making by the court, the statute seems to be at odds

with the definition of “presumptive sentence,” OAR 213-003-

0001(16), and the legislature’s intent that the OCJC guide-

lines and presumptive sentences reduce judicial discretion,

Rodriguez/Buck, 347 Or at 86 (De Muniz, C. J., concurring

in part, dissenting in part). Therefore, the use of the phrases

“determining the appropriate sentence” and that the court

“shall consider” more likely support the second possible

interpretation.

Another indication that ORS 161.740 is intended to

displace the grid block presumptive sentences is its similar-

ity to the statute that governs dispositions for adjudicated

youth, ORS 419C.411.12 The circumstances enumerated in

ORS 161.740 are similar to criteria that juvenile courts must

consider when exercising discretion to determine a dispo-

sition for an adjudicated youth pursuant to ORS 419C.411.

Although there are some differences, ORS 161.740 and ORS

419C.411 contain similarities in form and content that sup-

port an inference that the legislature intended to authorize a

similar grant of discretionary authority to sentencing courts

under ORS 161.740 as to juvenile courts under ORS 419C.411.13

12

ORS 419C.411 provides, in illustrative part:

“(3) * * * [I]n determining the disposition of the case [regarding an adju-

dicated youth], the court shall consider each of the following:

“* * * * *

“(b) Whether the manner in which the adjudicated youth engaged in the

conduct was aggressive, violent, premediated or willful;

“* * * * *

“(e) The adjudicated youth’s juvenile court record and response to the

requirements and conditions imposed by previous juvenile court orders.

“(4) In addition to the factors listed in subsection (3) of this section, the

court may consider the following:

“(a) Whether the adjudicated youth has made any efforts toward reform

or rehaibilitation or making restitution;

“(b) The adjudicated youth’s educational status and school attendance

record;

“(c) The adjudicated youth’s past and present employment;

“* * * * *

“(f) The adjudicated youth’s mental, emotional and physical health and

the results of the mental health or substance abuse treatment; and

“(g) Any other relevant factors or circumstances raised by the parties.”

13

The case before us does not present an opportunity to determine the

authority of a court pursuant to ORS 161.740, if the court is not provided with

Cite as 345 Or App 681 (2025) 697

For example, both statutes provide for consideration of the

person’s school records and involvement, ORS 161.470(2)

(h) and ORS 419C.411(4)(b), efforts and capacity for reha-

bilitation, ORS 161.740(2)(g) and ORS 419C.411(4)(a),

and mental health, ORS 161.740(3) and ORS 419C.411(4)(f).

Unlike presumptive grid block sentences, those consider-

ations reflect the legislature’s intention that individuals

whose violative conduct occurred before turning 18 years of

age must receive more individualized consideration in fash-

ioning a sentence.

Another textual feature of ORS 161.740 that sup-

ports the second interpretation is that ORS 161.740 does

not provide for sentencing a defendant. Rather, the statute

provides for sentencing “a person who was under 18 years

of age * * *.” (Emphasis added.) The term “person” is used

more than a dozen times to refer to the individual being

sentenced pursuant to ORS 161.740; the term “defendant”

never appears. The juvenile delinquency code, which focuses

on “personal responsibility, accountability and reformation

within the context of public safety,” and not criminal pun-

ishment, ORS 419C.001, also does not use the term “defen-

dant.” Cf., e.g., ORS 137.106 and ORS 137.124 (adult crim-

inal statutes including the term “defendant”).14 In context,

ORS 161.740’s repeated reference to the individual being

sentenced as a “person” and not a “defendant” suggests that

the legislature intended ORS 161.740 to operate more like

the juvenile delinquency code, which authorizes the juvenile

court discretion to determine a disposition, rather than con-

straining the court via presumptive sentences.

D. Legislative History

any of the information contemplated in ORS 161.740(2) or (3). We offer no opin-

ion about that other than to say, given the availability of presentence reports,

see, e.g., ORS 144.791, we assign little importance to the legislature’s inclusion

of that phrase, and it does not elucidate nor obfuscate the statute’s meaning.

Furthermore, “rules” of interpretation, such as giving clear effect to all words

in a provision, provide “mere assumptions that always give way to more direct

evidence of legislative intent.” State v. Lane, 357 Or 619, 629, 335 P3d 914 (2015).

14

The usage of the term “defendant” persists in adult criminal sentenc-

ing statutes that have been amended recently and after the enactment of ORS

161.740; thus, the use of the term “person” in ORS 161.740 cannot be explained as

simply a more contemporary word choice. See, e.g., ORS 137.124, amended by Or

Laws 2023, ch 117, § 1.

698 State v. Gardner-Rolph

To aid in determining the legislative intent, we

also consider the available legislative history. Gaines, 346

Or at 171. Comments by legislators in committee hearings,

see State v. Baker-Krofft, 348 Or 655, 664-65, 239 P3d 226

(2010) (relying on hearing recordings), and the Staff Measure

Summary can be important sources for understanding leg-

islative intent, see State Treasurer v. Marsh & McLennan

Companies, Inc., 353 Or 1, 12-13, 292 P3d 525 (2012) (relying

on a Staff Measure Summary). When testimony is provided

by nonlegislators who were drafters or key proponents of a

bill, and it is clear that the legislature relied on their com-

ments, that testimony can be a persuasive source of legisla-

tive history. Kohring v. Ballard, 355 Or 297, 311-12, 325 P3d

717 (2014); see, e.g., Ogle v. Nooth, 254 Or App 665, 672, 298

P3d 32 (2013), rev’d in part on other grounds, 355 Or 570, 330

P3d 572 (2014) (statement of Assistant Attorney General in

support of proposed amendments to Post-Conviction Hearing

Act); Assoc. Unit Owners of Timbercrest Condo. v. Warren,

352 Or 583, 596-97, 288 P3d 958 (2012) (relying on state-

ments of Oregon State Bar representatives as to intended

meaning of proposed bill).

The Staff Measure Summary of SB 1008 provides,

in part:

“[T]he Senate Committee on Judiciary convened a work

group to examine the treatment of youth in the juvenile and

criminal justice system under [Measure 11 as codified]. The

work group was composed of a wide range of local stakehold-

ers and national experts who collectively examined case law,

brain science, best practices, national trends, and relevant

data to better understand whether Oregon law, and specifi-

cally whether [Measure 11], ensure justice for victims, effec-

tively protect the public, hold juvenile offenders accountable,

and provide opportunities for reformation and rehabilitation

that reduce recidivism and promote a productive citizenry.

[SB] 1008 * * * is a product of that work group.”15

15

Measure 11, a 1994 ballot initiative that was reaffirmed by voters in

2000, requires the imposition of lengthy mandatory minimum sentences for cer-

tain criminal convictions. Prior to the passage of SB 1008, it was mandatory to

prosecute juveniles accused of committing certain Measure 11 offenses in adult

criminal court, and convictions of those individuals required the imposition of

Measure 11 mandatory minimum sentences. See former ORS 13.707 (2017); Staff

Measure Summary, Senate Committee on Judiciary, SB 1008 A, 2, Apr 24, 2019.

Cite as 345 Or App 681 (2025) 699

Senate Committee on Judiciary, SB 1008 A, 2, Apr 24, 2019.

The summary describes that under the law in effect prior

to enactment of SB 1008, many offenders who committed

violative conduct before 18 years of age were subject to the

jurisdiction of the juvenile court, but that in several excep-

tional circumstances, those individuals were subject to adult

criminal court, including mandatory prosecution in adult

criminal court in some instances. The summary goes on to

explain that after Measure 11 went into effect, the United

States Supreme Court had “struck down the death penalty

for juveniles * * * [as a form of] cruel and unusual punish-

ment”; “struck down life-without-parole sentences for non-ho-

micide offenses, holding that states must give juveniles the

opportunity to obtain release”; and that one decision by the

Supreme Court, Montgomery v. Louisiana, 577 US 190, 136

S Ct 718, 193 L Ed 2d 599 (2016) “applied retroactively to

individuals serving life-without-parole for crimes they com-

mitted while juveniles. Twenty-one states currently ban life-

without-parole sentences for juveniles.” Senate Committee

on Judiciary, SB 1008 A, 3, Apr 24, 2019.

In Miller v. Alabama, 567 US 460, 476, 132 S Ct

2455, 183 L Ed 2d 407 (2012), one of the cases cited and

explained in the summary of SB 1008, the Supreme Court

explained that “just as the chronological age of a minor is

itself a relevant mitigating factor of great weight, so must

the background and mental and emotional development of

a youthful defendant be duly considered in assessing [their]

culpability.” (Internal quotation marks, brackets and citation

omitted.) Miller provides that young offenders have “dimin-

ished culpability and heightened capacity for change * * *.”

Id. at 479.

The summary continues by highlighting several of

the significant ways that SB 1008 would expand opportuni-

ties for individuals whose violative conduct occurred before

18 years of age to be adjudicated in juvenile court, expand

the age range of young adults eligible to be housed in OYA

custody, and increase opportunities for conditional release

hearings. SB 1008 made unequivocal changes to certain sen-

tencing and incarceration practices regarding individuals

whose violative conduct occurred before 18 years of age. Some

700 State v. Gardner-Rolph

of those changes included expanding eligibility for “second

look hearings,” with the possibility of release if an offender

has been successfully rehabilitated, ORS 420A.203, creating

the possibility for release after 15 years of imprisonment if

the person has successfully matured and been rehabilitated,

ORS 144.397, and creating a waiver hearing process regard-

ing violative conduct committed when an individual was 15,

16, or 17 years of age rather than automatically sending those

individuals to adult criminal court, ORS 419C.349. Senate

Committee on Judiciary, SB 1008 A, 1-3, Apr 24, 2019.

Regarding what was ultimately codified as ORS

161.740, the summary provides that the statute

“[p]rohibits the court from sentencing a juvenile defendant

who committed an offense before age 18 to life without

parole. Provides a list of factors for the court to consider

when sentencing a juvenile defendant who committed an

offense before age 18. Requires the court to give substan-

tial weight to a qualifying mental health evaluation of a

juvenile defendant who committed an offense before age

18 * * * includ[ing] an assessment of the person’s degree of

insight, judgment, self-awareness, emotional regulation,

and impulse control.”

Id. at 1. And it provides for the requirements now codified as

ORS 161.740(4) and (5).

During a hearing regarding SB 1008, then-Attorney

General Ellen Rosenblum spoke about the “important dis-

tinction” between youth conduct and adult conduct, not-

ing that there are different considerations about impul-

sivity, culpability, and the capacity for reformation. Video

Recording, Senate Committee on Judiciary, SB 1008, Mar 28,

2019, at 0:07:55 (statement of Attorney General Ellen

Rosenblum), https://olis.oregonlegislature.gov (accessed

Nov 13, 2025). She continued by emphasizing the importance

of “a deep and critical reflection on the fairness of our juve-

nile justice system.” Id. The then-Vice-Chair of the Oregon

Board of Parole and Post-Prison Supervision also testified

in support of the legislation and spoke about “significant

developments in psychology, psychiatry, brain development

science, and * * * Supreme Court case law” informing the

way our legal system treats juvenile offenses. Id. at 1:50:20

Cite as 345 Or App 681 (2025) 701

(statement of Michael Hsu), https://olis.oregonlegislature.gov

(accessed Nov 13, 2025).

Senators Manning, Jr. and Winters, the then-

Director of OYA, the then-Director of DOC, and other stake-

holders also spoke in support of the legislation as fundamen-

tally altering the way harmful conduct that occurred before

age 18 is addressed by our legal system. Id. at 0:05:32 (state-

ment of Sen James Manning, Jr.); 0:11:48 (statement of Sen

Jackie Winters); 0:22:55 (statement of Joe O’Leary); 0:17:59

(statement of Colette Peters). One particularly instructive

comment in understanding the language that is now codified

as ORS 161.740 was provided by Colette Peters, the then-

Director of DOC. Id. at 0:17:59. She explained that based on

relevant brain science, it is inappropriate to commit an indi-

vidual for a lengthy sentence if that individual’s brain was

not fully developed at the time of the conduct. Id. She also

remarked that keeping individuals who committed violative

conduct before the age of 18 out of DOC, “in almost every

case, is better public safety * * *. We know that mixing youth

criminal thinking with adult criminal thinking creates adult

criminal thinking,” and she explained that sending youth

offenders to DOC increases the likelihood of recidivism. Id.

That legislative history makes clear that the enact-

ing body regarded SB 1008 as implementing fundamental

changes to the legal code regarding violative conduct that

occurred before an individual reached 18 years of age, requir-

ing a significantly greater focus on brain science and devel-

opment, nuanced understanding of culpability, likelihood of

rehabilitation and treatment efficacy, and offender account-

ability, while deemphasizing mandatory punishment.

The legislative history confirms what our textual analysis

strongly supports—that ORS 161.740 was intended to dis-

place the OCJC presumptive sentences.

E. Meaning of ORS 161.740

In sum, if the three characteristics provided above

regarding who must be sentenced under ORS 161.740 are

met, we conclude that ORS 161.740 requires a sentencing

court to exercise its discretion by fashioning an appropriate

sentence, without being bound by presumptive sentences

702 State v. Gardner-Rolph

provided in the OCJC guidelines.16 The sentencing court is

guided and bound by the provisions of ORS 161.740, includ-

ing that when a court is provided information concerning

the enumerated ORS 161.740(2) circumstances or any other

relevant circumstances, the court must consider that infor-

mation. Additionally, a court must give “substantial weight”

to a mental health evaluation if one is provided per ORS

161.740(3), the court may not consider the defendant’s age

as an aggravating factor per ORS 161.740(4), and the court

must comply with the procedural requirements of ORS

161.740(5). ORS 161.740 does not prohibit a sentencing court

from imposing a lengthy term of incarceration should one be

appropriate in light of the enumerated guidance of the stat-

ute; although, just because it is possible that an appropriate

consequence for one individual includes a lengthy sentence

does not suffice to justify depriving a defendant of the con-

sideration that the legislature envisioned and enacted into

law.

IV. APPLICATION OF ORS 161.740

Because defendant was sentenced for offenses com-

mitted when he was under 18 years of age; he was convicted

in adult criminal court; and the sentence was imposed on

or after January 1, 2020, the sentence should have been

imposed under ORS 161.740.

Defendant provided the court with a mental health

evaluation and other information regarding circumstances

per ORS 161.740(2) and (3). Thus, the court was required

to consider any information regarding the ORS 161.740(2)

circumstances and, if the mental health evaluation met the

ORS 161.740(3) criteria, then the court was required to give

it substantial weight.

When announcing defendant’s sentence from the

bench, the court explained that Measure 11 and Jessica’s

Law were inapplicable due to defendant being convicted for

conduct that occurred before he turned 15, and acknowledged

that although the charges could carry consecutive sentences,

they would be run concurrently “because of [defendant’s]

16

Because the issue is not before us, we express no opinion as to the relation-

ship between ORS 161.740 and other statutes that impose presumptive sentences

for specific offenses or in specific circumstances.

Cite as 345 Or App 681 (2025) 703

age at the time of the incident[s].”17 The court determined

that “an appropriate sentence” for defendant would include

60 months of prison time with eligibility for “any time reduc-

tions and treatment programs.” The court also expressed

that it was imposing the sentence “by following the grid

block.”

Because it is not clear that the sentencing court

applied ORS 161.740 and exercised its discretion consis-

tent with the requirements of ORS 161.740, we vacate and

remand for resentencing.

Vacated and remanded for resentencing.

TOOKEY, P. J., dissenting.

ORS 138.105(8) provides that this court has “no

authority to review” on direct appeal “[a] sentence that is

within the presumptive sentence prescribed by the rules of

the Oregon Criminal Justice Commission.”

Notwithstanding that unambiguous directive from

the legislature, the majority concludes that defendant’s

sentence—which is in fact within the presumptive sentence

prescribed by the rules of the Oregon Criminal Justice

Commission (OCJC) for his crimes—is reviewable on direct

appeal. The majority so concludes because, in its view,

although “ORS 138.105(8) precludes judicial review of a chal-

lenge to the length of an imposed presumptive sentence, our

case law establishes that it does not preclude review of other

challenges.” 345 Or App at 687 (emphasis in original).

To reach its conclusion that defendant’s challenge to

his sentence is reviewable, the majority relies on two cases

not cited by the parties—State v. Casiano, 214 Or App 509,

166 P3d 599 (2007), and State v. Vargas, 271 Or App 675,

352 P3d 743 (2015)—it purports to apply a legal principle

that was not proffered by the parties, and, as I understand

17

Jessica’s Law, Or Laws 2006, ch 1, §§ 1-7 (Spec Sess), requires the imposi-

tion of mandatory minimum sentences for certain sex crime and kidnapping con-

victions. Jessica’s Law mandatory minimums cannot be imposed on a person who

was under 18 years of age at the time the person committed the relevant offense.

Or Laws 2006, ch 1, § 3(2). Measure 11 minimum sentences cannot be imposed on

an individual who was under 15 years of age at the time of committing a relevant

offense. See ORS 419C.349 (a juvenile under 15 years of age cannot be waived

into adult court).

704 State v. Gardner-Rolph

it, it attempts to refashion defendant’s assignment of error

as not pertaining to “the length of the sentence imposed, or

to some other sentence length asserted to be applicable.” See

Casiano, 214 Or App at 516 (concluding the challenged ruling

was reviewable where the challenged ruling did not “pertain

to the length of the sentence imposed, or to some other sen-

tence length asserted to be applicable”).

Further, in my view, the majority misreads con-

trolling Supreme Court authority—State v. Althouse, 359

Or 668, 375 P3d 475 (2016) and State ex rel Huddleston v.

Sawyer, 324 Or 597, 932 P2d 1145, cert den, 522 US 994

(1997)—that is binding on us.

I respectfully dissent, and would affirm the trial

court, because I would conclude that defendant’s challenge

to his sentence is not reviewable. Therefore, I express no

opinion on the merits question of whether, as framed by the

majority, in a situation such as that presented by this case,

ORS 161.740 merely functions as an “overlay to presump-

tive sentence[es] prescribed by” the sentencing guidelines

or “displaces” the sentencing guidelines. 345 Or App at 692

(describing two “plausible interpretations” of ORS 161.740).

Instead, in addressing the reviewability issue here, it suffices

to determine, as I would, that ORS 161.740 does not, in all

cases, prohibit a trial court from imposing the “presumptive”

sentence under the sentencing guidelines if that is where

the exercise of the trial court’s discretion under ORS 161.740

leads it. That is, the legislature’s enactment of ORS 161.740

did not make it a “legal impossibility” for a court to impose a

“presumptive sentence” under the sentencing guidelines for

conduct that a defendant committed when the defendant was

under 18 years of age.

The chief difficulty with the majority’s view regard-

ing reviewability is that neither Casiano nor Vargas support

the conclusion reached by the majority: that defendant’s

challenge to his presumptive sentence, which was prescribed

by the rules of the OCJC for his crimes, is reviewable on

direct appeal by defendant.

Instead, as explained below, the proper analysis of

the reviewability question is set forth in the Supreme Court’s

Cite as 345 Or App 681 (2025) 705

opinions in Althouse and Huddleston, and is illustrated by

our application those cases in State v. Miller, 291 Or App

599, 422 P3d 327, rev den, 363 Or 727 (2018), and State v.

Fernandez, 334 Or App 81, 555 P3d 350, rev allowed, 373 Or

121 (2024).

In Althouse, the Supreme Court articulated three

prerequisites for a challenge to a sentence to be unreviewable

on direct appeal under the statute barring review of sentences

that fall “within the presumptive sentence prescribed by the

rules of the [OCJC].” 359 Or at 672. “First, the challenged

sentence must be a presumptive sentence.” Id. “Second,

the challenged sentence must be within a presumptive sen-

tence.” Id. (internal quotation marks and brackets omitted).

“Finally, the challenged sentence must be prescribed by the

rules of the [OCJC].” Id. (internal quotation marks omitted).

As explained below, those three prerequisites are met in this

case.

Additionally, Althouse affirmed the continuing viabil-

ity of the reviewability analysis in Huddleston, a case which,

as explained below, mirrors the issue in this case, albeit

involving a different sentencing statute. In Huddleston, the

Supreme Court concluded that a party’s contention that the

defendant should have been sentenced pursuant to the provi-

sions of ORS 137.700 (Measure 11) instead of pursuant to the

sentencing guidelines was not reviewable on direct appeal.

See 324 Or at 600, 608. Similarly, in this case, defendant’s

contention is that he should have been sentenced pursuant

to the provisions of ORS 161.740 instead of pursuant to the

sentencing guidelines, and, in my view, that contention is not

reviewable on direct appeal.

The majority, however, charts a different course,

concluding that defendant’s sentence is reviewable because

defendant’s “appeal in this case is similar to those in Vargas

and Casiano.” 345 Or App at 688. In the majority’s view,

defendant’s challenge to his sentence is reviewable because

defendant is challenging “aspects of [his] presumptive sen-

tence other than the length of the sentence as imposed,” as

that phrase is used in Vargas and Casiano. Id.

706 State v. Gardner-Rolph

It may come as a surprise to the parties for the major-

ity to conclude that defendant is not challenging “the length

of his sentence as imposed”: as noted, defendant does not so

argue, and neither party discusses, much less cites, either

Casiano or Vargas in their briefing. I suspect the reason

that defendant does not rely on Casiano or Vargas is because

Casiano actually supports the view that the defendant’s claim

of error is unreviewable and Vargas is wholly inapposite.

In Casiano, unlike in this case, the defendant was

not challenging a presumptive sentence prescribed by the

rules of the OCJC. In that case, the trial court imposed “a

presumptive sentence of 45 months’ imprisonment and 36

months’ post-prison supervision” on defendant. 214 Or App

at 512. The trial court “then determined that * * * [defen-

dant’s] conviction and sentence are subject to ORS 137.635,”

a statute which “affects an offender’s eligibility for subse-

quent modifications of the sentence that are implemented

by the custodial or supervisory authority (in this case, [the

Department of Corrections]), such as temporary leave from

custody or earned time reductions.” Id. at 512, 516. On

appeal, the defendant’s argument in Casiano was “that the

trial court committed plain error in concluding that his con-

viction and sentence are subject to ORS 137.635.” Id. at 511.

The state argued that the defendant’s claim of error was not

reviewable. Id. at 515.

We concluded that the defendant’s claim of error

was reviewable because the “challenged ruling of the trial

court”—i.e., the trial court’s ruling that the defendant’s con-

viction and sentence were subject to ORS 137.645—“did not

pertain to the length of the sentence imposed, or to some

other sentence length asserted to be applicable.” Id. at 516.

Rather, the ruling that the defendant challenged in Casiano

“pertained to the applicability of ORS 137.635, which does

not itself establish the length of any sentence but * * * affects

an offender’s eligibility for subsequent modifications of the

sentence that are implemented by the custodial or supervi-

sory authority.” Id. And we concluded that “that aspect of

defendant’s sentence”—i.e., the aspect which “did not per-

tain to the length of the sentence imposed, or to some other

sentence length asserted to be applicable,” id. (emphasis

Cite as 345 Or App 681 (2025) 707

added)—was reviewable under the statutory predecessor to

ORS 138.105(8)(a)(A).

Here, in contrast to Casiano, defendant’s argu-

ment does “pertain to the length of the sentence imposed,

or to some other sentence length asserted to be applicable.”

Casiano, 214 Or App at 516. Defendant argues that the trial

court “should have sentenced defendant under ORS 161.740,”

which, in defendant’s view, contains “mitigating criteria that

must be considered in imposing a sentence,” instead of sen-

tencing defendant pursuant to the sentence provided for in

the felony sentencing guidelines. Consequently, Casiano

suggests defendant’s claim of error is not reviewable because

defendant’s claim of error does “pertain to the length of the

sentence imposed, or to some other sentence length asserted

to be applicable.” Id.

Further, as noted, this court’s opinion in Vargas, in

my view, is inapposite. In Vargas, the “defendant contend[ed]

that the trial court’s guilty verdicts on two counts of felony

assault in the fourth degree should have been merged into a

single conviction.” 271 Or App at 677. Specifically, defendant

argued that ORS 161.067—Oregon’s “anti-merger” statute—

did not “authorize two separate convictions for felony fourth-

degree assault.” Id. at 678. The state, in response, acknowl-

edged that there was not a “sufficient basis under ORS

161.067(3) for entry of separate convictions,” but argued

that “defendant’s claim of error is not reviewable, because

the trial court imposed sentences on both convictions that

are within the presumptive sentence range under the sen-

tencing guidelines.” Id. at 677-78. Relying on our analysis

in Casiano, we disagreed with the state, explaining that

“[b]ecause defendant challenges the court’s failure to merge

the findings of guilt, not the length of the concurrent, pre-

sumptive sentences, ORS 138.222(2)(a) does not preclude

review.” Id. at 678.

The difficulty with the majority’s reliance on Vargas

is that in Vargas the defendant’s argument was about

merger—defendant contended that the trial court’s failure

to merge the verdicts under ORS 161.067 resulted in one too

many convictions. The defendant was not challenging the

“length” of his sentence as such.

708 State v. Gardner-Rolph

Defendant’s challenge in this case, however, directly

concerns the length of the sentence he received: a fair read-

ing of his argument is that he believes he should have

received a different, shorter sentence, based on the trial

court applying the provisions of ORS 161.740 instead of the

sentencing guidelines. In short, this case is like Huddleston,

not Vargas.

Thus, rather than Casiano and Vargas, the review-

ability question in this case is controlled by Althouse,

Huddleston, Miller, and Fernandez. As explained below,

application of those cases dictates that our review on direct

appeal of defendant’s challenge to his sentence in this case

is precluded by application of ORS 138.105(8).

I would resolve this case in the following manner,

and I respectfully dissent.

I. BACKGROUND

When defendant was a juvenile he engaged in

the criminal conduct that led to his convictions—namely,

sexually abusing and sodomizing his stepsister who was

approximately five years younger than him. The victim dis-

closed defendant’s conduct when she was 14 years old, and

defendant was over 18 years old. Defendant was indicted

for his conduct—the sex crimes that he committed against

his younger stepsister—and he pleaded guilty to certain

offenses. His plea agreement left sentencing open.1

Regarding his sentence, defendant’s plea agree-

ment, defendant’s sentencing memorandum, and the state’s

sentencing memorandum were in agreement that

• for Count 3, first-degree sodomy, defendant’s sen-

tencing grid block was a 10-I, for which the felony

sentencing guidelines provide a presumptive sen-

tencing range of 58-60 months;

• for Count 7, first-degree sexual abuse, defendant’s

sentencing grid block was an 8-D, for which the fel-

ony sentencing guidelines provide a presumptive

sentencing range of 27-28 months;

1

In exchange for pleading guilty, other counts for which defendant was

indicted—Counts 1, 2, 4 to 6, and 10 to 12—were dismissed.

Cite as 345 Or App 681 (2025) 709

• for Count 8, first-degree sexual abuse, defendant’s

sentencing grid block was an 8-B, for which the fel-

ony sentencing guidelines provide a presumptive

sentencing range of 35-40 months; and

• for Count 9, first-degree sexual abuse, defendant’s

sentencing grid block was an 8-A, for which the fel-

ony sentencing guidelines provide a presumptive

sentencing range of 41-45 months.

At sentencing, the state argued that the trial court

should run the sentences on each count consecutively and

that defendant should be sentenced to 173 months in the

Department of Corrections. Defendant, for his part, argued

that a prison sentence would be “unjust and unconstitutional

under Article I, section 16 of the Oregon Constitution and

the Eighth Amendment to the United State Constitution”

and that the court should “should impose a probationary

sentence and make [defendant] eligible for a hearing under

ORS 163A.030.” Defendant also pointed the trial court to

ORS 161.740, which, among other provisions, sets forth cer-

tain circumstances that a trial court must take into account

when “determining the appropriate sentence for a person

who was under 18 years of age at the time of committing the

offense,” if the court is provided with information concern-

ing those circumstances.

After hearing from the parties, the victim’s father,

and the victim, the trial court sentenced defendant to the

“presumptive” sentences under the sentencing guidelines—

60 months’ imprisonment on Count 3, 28 months’ imprison-

ment on Count 7, 40 months’ imprisonment on Count 8, and

45 months’ imprisonment on Count 9.2

As the trial court put it, it “follow[ed] the grid” when

sentencing defendant. Though, in consideration of the cir-

cumstances of the case, it elected to run the sentences con-

currently, rather than consecutively.

2

During sentencing, the trial court heard, among other information, that

defendant sexually abused his younger stepsister hundreds of times—almost

every day over a period of years; that that abuse frequently involved going into

her room at night and holding her down while he sexually abused her; and that he

also physically abused and threatened her, at one point telling her that he would

kill her while he held a knife in his hand.

710 State v. Gardner-Rolph

II. ARGUMENTS ON APPEAL

On appeal defendant acknowledges that the trial

court imposed “presumptive sentences” under the sentenc-

ing guidelines, but he contends that that was error because

it should have sentenced defendant under ORS 161.740,

which, as noted, sets forth certain circumstances that a

trial court must consider “in determining the appropriate

sentence for a person who was under 18 years of age at the

time of committing the offense,” if the trial court is provided

with information concerning those circumstances.

Further, defendant contends that his challenge

to his sentence is reviewable by us, notwithstanding ORS

138.105(8)(a)(A), because ORS 161.740 and the sentencing

guidelines “conflict.” That is, in defendant’s view, unlike

“the guidelines, which require particular sentences and

allow for departure from those sentences only for substan-

tial and compelling reasons, ORS 161.740 does not require a

given sentence, but rather requires the court to consider cer-

tain circumstances to determine an ‘appropriate’ sentence.”

Defendant’s understanding is that “a sentencing court

cannot both follow the legislative mandate to consider the

enumerated circumstances [in ORS 161.740] as mitigation

and afford substantial weight to a mental health evaluation

in determining the ‘appropriate’ sentence and follow the

guidelines that have already determined the presumptive

incarceration sentence that applies to adult offenders in the

absence of ‘substantial and compelling reasons.’ ”

The state, for its part, contends that defendant’s

sentence is unreviewable under ORS 138.105(8)(a)(A). As the

state understands that statute, when a “defendant pleads

guilty to felony offenses that are subject to the sentencing

guidelines, and the sentencing court imposes on each such

conviction the presumptive sentence that is prescribed by

the guidelines, and the defendant then contends on appeal

that the sentences imposed are error because they are exces-

sive, this court has no authority to review that challenge,

even if the basis for that challenge is an allegation that the

court failed to comply with requirements of law in imposing

or failing to impose a sentence.”

Cite as 345 Or App 681 (2025) 711

The state also takes a different view than defen-

dant regarding the meaning of ORS 161.740. As the state

sees it, under that statute, “when, as in this case, the convic-

tion being sentenced is subject to the sentencing guidelines,

nothing in that statute either displaces the guidelines as

the governing source of sentencing authority or otherwise

exempts that conviction from any of the rules that govern

the calculation and imposition of a presumptive sentence.”

Put another way, the state contends that ORS 161.740 “does

not require or authorize a court to impose a sentence that is

different from what the guidelines prescribe or allow for [a]

conviction.”

III. REVIEWABILITY AND ORS 161.740

ORS 138.105 sets forth the appellate courts’

“authority to review the judgment or order being appealed.”

Under that statute, in an “appeal by a defendant,” we have

no authority to review a sentence that is “within the pre-

sumptive sentence prescribed by the rules of the [OCJC].”

ORS 138.105 provides, in relevant part:

“(1) On appeal by a defendant, the appellate court has

authority to review the judgment or order being appealed,

subject to the provisions of this section.

“* * * * *

“(7) Except as otherwise provided in subsections (8)

and (9) of this section, the appellate court has authority to

review any sentence to determine whether the trial court

failed to comply with requirements of law in imposing or

failing to impose a sentence.

“(8) Except as otherwise provided in subsection (9) of

this section, for a sentence imposed on conviction of a felony

committed on or after November 1, 1989:

“(a) The appellate court has no authority to review:

“(A) A sentence that is within the presumptive sentence

prescribed by the rules of the [OCJC].”

(Emphases added.) Whether defendant’s claim is reviewable

under ORS 138.105 is a question of law. Fernandez, 334 Or

App at 83.

712 State v. Gardner-Rolph

Before turning to the application of ORS 138.105

in this case, and the consideration of whether defendant’s

argument concerning ORS 161.740 operates to make defen-

dant’s otherwise unreviewable presumptive guidelines sen-

tence reviewable, I discuss four cases that, in my view, pro-

vide useful bookends in explaining the application of ORS

138.105(8) and why defendant’s challenge to his sentence is

not reviewable.

The first two, which defendant relies on in contend-

ing that his sentence is reviewable, are Althouse and Miller.

In those cases, Oregon appellate courts concluded that review

was not prohibited by a predecessor statute of ORS 138.105(8)

(a)(A), former ORS 138.222(2)(a), repealed by Or Laws 2017,

ch 529, § 26.3 But in both of those cases, as explained below,

the sentence that the defendant actually received was pursu-

ant to a statute, not pursuant to the sentencing guidelines,

so the sentences were reviewable. Those cases are unlike this

case. In this case, as explained above, defendant did receive

a sentence dictated by the sentencing guidelines.

In the second two cases, Huddleston and

Fernandez—which the state points to in support of its posi-

tion that defendant’s sentence is not reviewable—Oregon

appellate courts concluded that review was prohibited by

ORS 138.105(8) or its predecessor former ORS 138.222

(2)(a). As explained below, in Huddleston, the court concluded

that, at least generally, when a sentencing court does not

apply a statute that would otherwise determine the length

of a defendant’s sentence, and instead applies the felony sen-

tencing guidelines, the sentence is not reviewable on direct

appeal. In Fernandez, the court concluded that a defendant’s

sentence is not reviewable on direct appeal merely because

defendant contends that the length of the sentence was

unconstitutional.

I discuss each set of cases in turn, before turning

to proper application of ORS 138.105(8)(a)(A) in this case.

Although Huddleston, Althouse, and Miller concern appli-

cation of former ORS 138.222(2)(a), they are informative

3

As does the majority, in this dissent, when citing former ORS 138.222, for

readability and because none of the amendments to the language of ORS 138.222

are material to the analysis, I do not include a year.

Cite as 345 Or App 681 (2025) 713

in interpreting ORS 138.105(8)(a)(A), because “the provi-

sions codified at ORS 138.105(8)(a), (b), and (c) * * * were

intended to restate the limits on reviewability of felony

guideline sentences that had been in former ORS 138.222

(2)(a) through (c).” Fernandez, 334 Or App at 84-85.

A. Althouse and Miller

I begin with Althouse, which, among other points,

articulated and applied the three prerequisites for a sentence

to be unreviewable under former ORS 138.222(2)(a).

In Althouse, the defendant had been sentenced to

life imprisonment without the possibility of parole pursuant

to ORS 137.719, which provides that “the presumptive sen-

tence for a sex crime that is a felony is life imprisonment

without the possibility of release or parole if the defendant

has been sentenced for sex crimes that are felonies at least

two times prior to the current sentence.” 359 Or at 670 & n 2.

The defendant argued that that sentence, as applied to him,

violated Article I, section 16, of the Oregon Constitution and

the Eighth Amendment to the United States Constitution.

Id. at 670. The state, for its part, argued that former ORS

138.222(2)(a) precluded the defendant from challenging that

sentence on direct appeal. Id. at 670. At that time, former

ORS 138.222(2)(a) provided that the appellate court may not

review “[a]ny sentence that is within the presumptive sen-

tence prescribed by the rules of the Oregon Criminal Justice

Commission.” Id. at 672.

As the state argued it in Althouse, the defendant

received a “presumptive sentence prescribed by the rules of

the [OCJC]” because although “ORS 137.719(1) prescribed

the presumptive sentence that the trial court imposed,” the

OCJC’s rules “define the term ‘presumptive sentence’ as”

including “ ‘a sentence designated as a presumptive sen-

tence by statute.’ ” Althouse, 359 Or at 671 (quoting OAR

213-003-0001(16)).

The court concluded that the defendant’s sentence

was reviewable. It explained that, for review of a sentence to

be barred by former ORS 138.222(2)(a), it must meet three

prerequisites:

714 State v. Gardner-Rolph

“First, the challenged sentence must be a presumptive

sentence. Second, the challenged sentence must be within

a presumptive sentence. Finally, the challenged sentence

must be prescribed by the rules of the Oregon Criminal

Justice Commission.”

Id. at 672 (internal quotation marks and brackets omitted).

The court noted that there was “no dispute that the

first prerequisite,” i.e., the sentence was a presumptive sen-

tence, “is satisfied.” Id. at 672. With regard to the second

prerequisite, however, it explained that “life without parole

is not a sentence ‘within’ another sentence; that is, life with-

out parole is not a sentence that falls within a range of pos-

sible sentences marked by minimum and maximum levels

of severity.” Id. at 673. Put another way, although a “sen-

tence imposed pursuant to ORS 137.719(1) is a presumptive

sentence, it is not ‘within’ a presumptive sentence or range

of presumptive sentences, as that term is ordinarily under-

stood.” Id. at 673.

Regarding the third prerequisite—whether the

“challenged sentence was prescribed by the rules of the

[OCJC]”—considering the text of former ORS 138.222(2)(a)

in context, the court explained that the phrase “[a]ny sen-

tence that is within the presumptive sentence prescribed by

the rules of the [OCJC]” in former ORS 138.222(2)(a) can

“have only one referent: The phrase refers to a sentence that

comes within the range of presumptive sentences prescribed

by a sentencing guidelines grid block.” Althouse, 359 Or at

676.

In determining that that prerequisite was not sat-

isfied in Althouse, the court explained that “[o]rdinarily, the

Commission’s rules establish ‘grid blocks’ that prescribe a

range of presumptive sentences for a crime, depending on the

severity of the crime and the offender’s criminal history.” Id.

at 673. And it noted that “the presumptive sentence that the

trial court imposed in this case departs from that usual model

in two respects.” Id. First, “a statute—ORS 137.719(1)—pre-

scribed the presumptive sentence that the court imposed,”

and it did so “independently of anything that the Commission

did or did not do.” Id. And, second, “the same thing cannot be

said for the Commission’s rule”: if the legislature “repealed

Cite as 345 Or App 681 (2025) 715

ORS 137.719, no presumptive life sentence for a defendant’s

third felony sex offense would be prescribed by rule or other-

wise.” Id.

Thus, ultimately, the court concluded that “because

a sentence imposed pursuant to ORS 137.719(1) does not

come within the class of sentences to which [former] ORS

138.222(2)(a) applies,” defendant’s challenge to his sentence

was reviewable. Id. at 678.

Following Althouse, in Miller, we concluded that

former ORS 138.222(2)(a) did not prevent us from reviewing

the defendant’s contention that his sentences for unlawful

manufacture of methamphetamine and unlawful delivery of

methamphetamine were unconstitutionally disproportion-

ate under Article I, section 16, of the Oregon Constitution.

As to those charges, the trial court “imposed an 81-month

prison term, based on application of ORS 475.925 and ORS

475.930.” 291 Or App at 604.

As applicable to the defendant, ORS 475.925

required the trial court to impose a term of incarceration

of 58 to 130 months. Id. at 610. And ORS 475.930 provided

that, when a person is sentenced pursuant to ORS 475.925,

in determining the sentence of incarceration, the court “shall

us the criminal history scale of the sentencing guidelines,”

but that it must use a “crime category of 10,” and that the

court “may not impose a downward dispositional departure

or downward durational departure under the rules of the

commission.” Id. at 609.

In concluding that the defendant’s sentence was

reviewable, we explained that, under Althouse, “the presump-

tive sentence ‘prescribed by’ the rules of the Commission” as

that phrase was used in former ORS 138.222(2)(a) “can refer

only to the presumptive sentence contained in the appropri-

ate guidelines grid block as dictated by application of the

crime seriousness and criminal history scales established by

the Commission in the guidelines.” Miller, 291 Or App at 611

(emphasis in original). But regarding the sentence at issue

in Miller, “the legislature itself mandated the crime seri-

ousness scale to be used in determining the presumptive

sentences, notwithstanding what the Commission had, by

716 State v. Gardner-Rolph

rule, promulgated in the guidelines; moreover, the statutory

scheme expressly precluded the court from imposing a down-

ward departure that would otherwise be available under the

guidelines rules.” Id.

Thus, “sentences imposed under ORS 475.925 and

ORS 475.930—although determined by reference to the grid

block—are not within the presumptive sentence prescribed by

the rules of the Commission, as the legislature, in enacting

former ORS 138.222(2)(a), intended.” Id. at 611 (emphases in

original). We explained that, as in Althouse, the sentences

in Miller were not “provided in a grid block for an offender

classified in that grid block” but instead were “prescribed

by the legislature, using the grid block as a reference.” Id.

Therefore, they were reviewable.

B. Huddleston and Fernandez

In contrast to Althouse and Miller, in Huddleston

and Fernandez, Oregon appellate courts concluded that

review was unavailable on direct appeal. In those cases, as

here, the sentences that the defendants received were pre-

sumptive guideline sentences.

In Huddleston, the Supreme Court concluded that

the state’s challenge to a defendant’s sentence was not

reviewable on direct appeal where the trial court concluded

that it would be unconstitutional to impose the mandatory

minimum sentence provided by ORS 137.700 (Measure 11)

and instead imposed the applicable felony sentencing guide-

line sentence for defendant’s crime. Huddleston, 324 Or at

599-600, 608. The court explained that the legislative intent

underlying the reviewability bar in former ORS 138.222:

“The purpose of ORS 138.222, as revealed in the legis-

lative history, was to curtail appellate review and reduce

the number of appeals. With respect to those cases in which

the trial court imposed a presumptive sentence on a con-

viction that was placed in the proper grid block, the stated

intention was that appellate review would not be available.

There was no suggestion that the reason for imposing the

presumptive sentence, or the reason for not imposing a dif-

ferent (higher or lower) sentence, would matter.”

Id. (emphasis in original).

Cite as 345 Or App 681 (2025) 717

Further, the court rejected an argument from defen-

dant that “may be read to suggest that Measure 11 impliedly

repealed the sentencing guidelines for all covered crimes, so

that it is a legal impossibility to impose a ‘presumptive sen-

tence’ with regard to a Measure 11 crime.” Id. at 604. The

court rejected that argument, because “the sentencing guide-

lines and Measure 11 can be harmonized, giving effect to

both.” 334 Or App at 605. The court explained, among other

points, that:

“Although the statutorily mandated term of imprisonment

[under ORS 137.700] likely will exceed ‘the presumptive

sentence’ prescribed by the felony sentencing guidelines

in most cases, (1) that will not necessarily be true in all

cases and (2) the sentencing court may use the criteria for

departure sentences in the guidelines to impose a sentence

greater than the statutorily mandated minimum, even

when the offense is [subject to ORS 137.700].”

334 Or App at 604.

Ultimately, the court concluded that the defen-

dant’s guidelines sentence would be unreviewable on direct

appeal, because “the trial court placed defendant’s conviction

into grid block 8-H of the felony sentencing guidelines and

imposed a 20-month sentence”; it is “undisputed that [the

defendant’s] conviction properly falls into grid block 8-H”;

that “ ‘the presumptive sentence’ provided for a conviction in

grid block 8-H is 19 to 20 months”; that “the 20-month sen-

tence thereby is ‘within’ that presumptive sentence”; and that

the defendant’s conviction “is subject to the felony sentencing

guidelines as well as to ORS 137.700.” Id. at 605.

More recently, in Fernandez, we concluded that

the defendant’s challenge to his sentence was unreviewable

under ORS 138.105, the reviewability statute at issue in this

case. The defendant in Fernandez argued that the trial court

erred when it used a “crime seriousness category 8 to sen-

tence defendant” on a count of first-degree online sexual cor-

ruption of a child. 334 Or App at 82. The defendant did not

challenge that the applicable rules put his crime of conviction

in category 8 but argued that the “the resulting presumptive

sentence was disproportionate in violation of Article I, sec-

tion 16, of the Oregon Constitution.” Id.

718 State v. Gardner-Rolph

We concluded that that challenge was unreview-

able under ORS 138.105(8)(c)(A), which allows for appellate

review of a claim that the sentencing court erred “ranking

the crime seriousness classification of the current crime.” We

explained that it was “undisputed that the sentencing court

correctly applied the rules of the [OCJC] when it ranked

defendant’s crime of conviction in crime seriousness cate-

gory 8 and defendant’s criminal history in category H, and

it is undisputed that the court imposed a sentence within

the presumptive sentencing range for grid block 8-H,” and

that therefore the sentencing court “cannot be said to have

erred ‘[i]n ranking the crime seriousness classification of the

current crime,’ so as to come within the exception in ORS

138.105(8)(c)(A).” Fernandez, 334 Or App at 87. Further, with

a reference to legislative history, we explained that, under

Huddleston, in assessing reviewability, it “did not matter

how the defendant came to receive a presumptive sentence.”

Fernandez, at 87.

C. Application

With that background, I turn to this case. As required

by former ORS 138.222(2)(a), I understand ORS 138.105(8)

(a)(A) to prevent this court from reviewing a sentence when

three prerequisites are met: (1) “the challenged sentence

must be a presumptive sentence”; (2) “the challenged sen-

tence must be within a presumptive sentence”; and (3) the

challenged sentence must be “prescribed by the rules of the

[OCJC].” Althouse, 359 Or at 673 (internal quotation marks

and brackets omitted). That understanding of ORS 138.105(8)

(a)(A) follows from the fact that, as noted above, the purpose

of the “the provisions codified at ORS 138.105(8)(a), (b), and

(c) * * * were intended to restate the limits on reviewability

of felony guideline sentences that had been in former ORS

138.222(2)(a) through (c).” Fernandez, 334 Or App at 84-85.

It also follows that, regarding the third prerequisite

in ORS 138.105(8)(a)(A)—as was the case with the nearly

identical language in former ORS 138.222(2)(a)—a sentence

is “prescribed by the rules of the” OCJC when it is a sentence

that “comes within the range of presumptive sentences pre-

scribed by a sentencing guidelines grid block.” Althouse, 359

Or at 676. Further, a presumptive sentence “comes within

Cite as 345 Or App 681 (2025) 719

the range of presumptive sentences prescribed by a sentenc-

ing guidelines grid block” when the sentence is “the pre-

sumptive sentence contained in the appropriate guidelines

grid block as dictated by application of the crime seriousness

and criminal history scales established by the Commission

in the guidelines.” Miller, 291 Or App at 611 (emphasis in

original).

In this case, the three prerequisites triggering the

reviewability bar as set forth in Althouse are met: First, defen-

dant’s sentence is a “presumptive sentence.” See ORS 137.669

(“[T]he incarcerative guidelines and any other guidelines

so designated by the Oregon Criminal Justice Commission

shall be mandatory and constitute presumptive sentences.”).

Second, it is “within a presumptive sentence.” Cf. Althouse,

359 Or at 673 (noting “life without parole is not a sentence

‘within’ another sentence; that is, life without parole is not

a sentence that falls within a range of possible sentences

marked by minimum and maximum levels of severity”). And,

third, defendant was sentenced in accordance with the rules

of the OCJC and his sentence was placed in the guidelines

grid block dictated by application of the crime seriousness

and criminal history scales established by the guidelines.

Thus, as I understand the prerequisites as articulated in

Althouse, defendant received a “presumptive sentence pre-

scribed by the rules of the” OCJC. Consequently, defendant’s

sentence is unreviewable, at least on direct appeal.

In short, this case is like Huddleston, where the

court concluded that the appellant’s challenge to the trial

court’s decision not to apply ORS 137.700 (Measure 11), and

to instead apply the presumptive sentence prescribed by the

rules of the OCJC, was not reviewable on direct appeal under

former ORS 138.222. Just as in Huddleston, in this case,

defendant received the presumptive sentence prescribed by

the rules of the OCJC. And just as in Huddleston, in this

case, appellant’s challenge is to the trial court’s purported

error in failing to apply a statute that it purportedly was

required to and that would have provided for a sentence other

than the presumptive sentence prescribed by the rules of the

OCJC. So, just as in Huddleston, in this case, defendant’s

720 State v. Gardner-Rolph

presumptive sentence prescribed by the rules of the OCJC is

not reviewable on direct appeal.

As Huddleston demonstrates, it does “not mat-

ter how the defendant came to receive a presumptive sen-

tence,” Fernandez, 334 Or App at 86, what matters is that

he received a presumptive sentence prescribed by the rules

of the OCJC.

In arguing that review is available, defendant relies

on Althouse and Miller. As described above, however, in both

those cases the sentence that the defendant actually received

and was challenging on appeal was dictated by a statute, not

the sentencing guidelines: In Althouse, the Supreme Court

held that when the trial court imposed the “presumptive life

sentence provided in ORS 137.719(1)” review was not barred

by former ORS 138.222. Althouse, 359 Or at 670-71. In Miller,

we held that when the trial court imposed “an 81-month

prison term, based on application of ORS 475.925 and ORS

475.930”—which provide the “statutorily required mandatory

minimum sentences” for the defendant’s offenses—review

was not barred by former ORS 138.222. Miller, 291 Or App

at 601. Neither Althouse nor Miller support the majority’s

position that defendant’s claims are reviewable in this case,

because in this case, defendant’s contention is that the trial

court erred by failing to impose a statutory sentence—i.e.,

he contends that “the trial court erred by failing to sentence

defendant under ORS 161.740”—and, as defendant recog-

nizes, “the trial court [here] imposed presumptive sentences

under the sentencing guidelines.”

Guided by the Supreme Court’s consideration of

reviewability in Huddleston, however, analysis of reviewabil-

ity in this case must consider whether ORS 161.740 operated

to “impliedly repeal” the sentencing guidelines for offenders

who committed their offenses when they were under 18 years

of age or otherwise made it so that it is “a legal impossibil-

ity to impose a ‘presumptive sentence’ ” under the guidelines

with regard to a sentence for such conduct. See Huddleston,

345 Or at 604 (considering whether “Measure 11 impliedly

repealed the sentencing guidelines for all covered crimes, so

that it is a legal impossibility to impose a ‘presumptive sen-

tence’ with respect to a Measure 11 crime”). In doing so, it is

Cite as 345 Or App 681 (2025) 721

important to keep in mind that repeal by implication is “not

favored” and must be established by “plain, unavoidable, and

irreconcilable repugnancy.” Id. at 604-05 (internal quotation

marks omitted). Furthermore, ORS 137.669 expressly pro-

vides that the sentencing guidelines, subject to certain excep-

tions not applicable here, “shall control the sentences for all

crimes committed after the effective date of such guidelines.”

I would conclude that there is no “irreconcilable

repugnancy,” see 345 Or at 605, here: Enactment of ORS

161.740 did not make it a “legal impossibility” for a court

to impose a “presumptive sentence” under the sentencing

guidelines for felony conduct that a defendant commit-

ted when the defendant was under 18 years of age. That

is because there is nothing in the text nor context of ORS

161.740(2), nor any legislative history of which I am aware,

that leads to a conclusion that the legislature intended to

prohibit a court from exercising its discretion to impose the

presumptive guidelines sentence for crimes committed when

a defendant was under 18 years of age.

To illustrate that point, assume defendant is correct

that ORS 161.740 “does not require a given sentence,” but

rather only “requires the court to consider certain circum-

stances to determine an ‘appropriate’ sentence,” i.e., assume

that defendant is correct that ORS 161.740 gives the court

more or less unfettered discretion as long as it exercises that

discretion giving consideration to the circumstances in ORS

161.740. If that is correct, nothing that I can see would prevent

a court from determining, after considering those circum-

stances, that the “appropriate sentence” under ORS 161.740

is the presumptive sentence prescribed by the guidelines.4

But it may also be, as I understand the state to

contend, that when a defendant has committed a felony to

which the sentencing guidelines apply, then ORS 161.740

merely provides considerations that the court must take into

account in determining what sentence within the presumptive

4

I note that, at oral argument, defendant acknowledged that ORS 161.740

and the sentencing guidelines can “coexist.” That is, defendant took the view

that, in some cases, the “[t]he appropriate sentence may be a guideline sentence,

and it may not be, and it kind of depends on the case.”

I do not understand the majority to disagree with that understanding of ORS

161.740.

722 State v. Gardner-Rolph

sentence under the guidelines to impose on a defendant who

was under 18 at the time of his conduct. If the state is cor-

rect as to how ORS 161.740 works, both ORS 161.740 and the

sentencing guidelines may be given effect, and no “implied

repeal” has occurred.

Finally, I observe that nothing in ORS 161.740 pro-

hibits a court from imposing a guidelines sentence when

the court has not been provided with the information set

forth in ORS 161.740(2) and (3), which the court must con-

sider in determining an appropriate sentence under ORS

161.740 only if the information has been provided. See ORS

161.740(2) (“[I]f the court is provided information concerning

the following circumstances, or any other relevant circum-

stances, the court shall consider those circumstances * * *[.]”);

ORS 161.740(3)(a) (“If the court is provided with a report of a

mental health evaluation of the person, the court shall give

the evaluation substantial weight in imposing the sentence

* * *[.]”).

Thus, in the end, under a proper interpretation of

ORS 138.105(8)(a)(A), defendant’s challenge to his presump-

tive sentence is unreviewable, and this court need not deter-

mine precisely how ORS 161.740 should have applied in this

case, because it is evident from the foregoing discussion

related to ORS 161.740 that nothing in that statute prohib-

its a trial court, in appropriate circumstances, from impos-

ing the “presumptive sentence contained in the appropriate

guidelines grid block as dictated by application of the crime

seriousness and criminal history scales established by the

Commission in the guidelines.” Miller, 291 Or App at 611

(emphasis in original). That is, enactment of ORS 161.740(2)

did not make it a “legal impossibility” for a court to impose a

“presumptive sentence” under the sentencing guidelines for

felony conduct that a defendant committed when the defen-

dant was under 18 years of age.

IV. CONCLUSION

In sum, I disagree with the majority that this case

is “similar to” Casiano and Vargas. Instead, it is similar to

Huddleston, where the Supreme Court concluded that review

of a defendant’s sentence on direct appeal is not available

Cite as 345 Or App 681 (2025) 723

when a defendant receives a guidelines sentence, and the

appellant argues that, under a particular statute, defendant

should have received a different sentence. Moreover, the three

prerequisites set forth in Althouse for review of a sentence

on direct appeal to fall within ORS 138.105(8)(a)(A)’s bar on

reviewability were satisfied in this case. Finally, as explained

above, ORS 161.740 does not make it a “legal impossibility” to

impose a guidelines sentence in this case. Thus, I would con-

clude that defendant’s challenge to his sentence—a sentence

that is “within the presumptive sentence prescribed by the

rules of the [OCJC],” ORS 138.105(8)(a)(A), for the offenses he

committed—is not reviewable on direct appeal and I would

affirm the trial court’s imposition of the presumptive guide-

lines sentence.

Consequently, I respectfully dissent.