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September 9, 2004 - The Salem Statesman-Journal (OR)

Sentencing Guidelines Revisited

A Supreme Court Ruling Is Having A Statewide Impact

By Peter Wong, Statesman Journal

A U.S. Supreme Court decision is beginning to affect the sentences of some criminals in Oregon.

The Oregon Court of Appeals decided Wednesday to set aside a longer prison sentence a judge imposed on a convicted embezzler based on aggravating factors. The state court acted after the U.S. Supreme Court ruled June 24 that only a jury can determine aggravating factors, or the defendant must consent to them.

The sentence for Sylvia Marie Sawatzky was the first in Oregon to be returned to circuit court. It will not be the last.

"This is just the opening round," said Jess Barton, a Salem lawyer who represented Sawatzky in the Court of Appeals a year ago.

Barton said the court misstated his! client's total sentence as 88 months, instead of 100 months. He said a regular sentence might reduce that total by half.

So-called departure sentences adding prison time account for 200 to 300 new cases annually. The actual total is nearly double, but Phil Lemman, executive director of the Oregon Criminal Justice Commission, said many of those are a result of negotiated alternatives to the prison terms fixed for 21 violent crimes under a ballot measure that Oregon voters approved in 1994.

Kevin Neely, a spokesman for Attorney General Hardy Myers, said Wednesday's decision is unclear about whether resentencing can take into account the specific circumstances of crimes committed by Sawatzky and others.

"While it gives us some guidance, it leaves a lot of questions unanswered," Neely said. "What we do not know is the scope of what the resentencing proceeding will be."

The Court of Appeals did not overtu! rn Sawatzky's guilty plea on 20 counts of aggravated theft ! and firs t-degree forgery, which stemmed from her embezzlement of more than $500,000 over several years while she was a bookkeeper for the elderly.

When Sawatzky was sentenced in Multnomah County Circuit Court, Judge David Gernant tacked on more prison time based on her "abuse of trust," and an earlier failure to appear in court.

Under Oregon's sentencing guidelines, which the Legislature approved in 1989, sentences for felonies other than violent crimes covered by 1994's Measure 11 are based on the offender's criminal history and the seriousness of the crime.

Judges can add prison time in the form of "departure sentences" if there are aggravating factors, such as "deliberate cruelty" or motivation based on race, religion, ethnicity, national origin or sexual orientation of the victim.

They are similar to Washington-state guidelines, which the U.S.

Supreme Court struck down June 24.

The ruling affects about a ! dozen states and the federal government's own guidelines.

A majority of the justices said that unless the defendant consented or a jury decided they were proven "beyond a reasonable doubt," aggravating factors that a judge considers in sentencing violated the constitutional right to a trial by jury.

"Guidelines for departure sentences ... do not comport with the Sixth Amendment to the Constitution," Judge Rick Haselton wrote for the Oregon Court of Appeals.

The Oregon Supreme Court had rejected a similar challenge last year, but set aside the decision once the U.S. Supreme Court ruled in June.

It is unclear whether the new restrictions can be applied retroactively to those already sentenced. They can benefit defendants still appealing their sentences.

The U.S. Supreme Court declined in a separate case in June to spare inmates already on death row in several states, excluding Oregon, even though thei! r sentences were imposed by judges instead of juries.

B! arton sa id the pair of decisions may serve to reduce the projected number of inmates in custody of the Department of Corrections, which now houses 12,000.

"Now we have cases that say these sentences are invalid and cannot be imposed until the Legislature fixes the system," Barton said. "These cases have produced what I think are millions in savings in correctional costs although no one has the numbers."

Lemman, whose agency administers the sentencing guidelines, said Gov. Ted Kulongoski has a small group working on what the 2005 Legislature might do. The Legislature's Joint Interim Judiciary Committee heard a report Wednesday.

Lemman said the U.S. Supreme Court decision also leaves it unclear whether consecutive sentences are allowed, and whether prosecutors must seek jury approval of specific aggravating factors.

"It may take years before we get a lot of these questions answered," he said.

Contact Peter Wong at or (503) 399-6745

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