(2) ORS 138.052, 163.105 and 163.150 apply to sentencing a person prosecuted under this section and convicted of aggravated murder under ORS 163.095 except that a person who was under 18 years of age at the time the offense was committed is not subject to a sentence of death or life imprisonment without the possibility of release or parole.

(3) The court shall commit the person to the legal and physical custody of the Department of Corrections.

(4) The offenses to which this section applies and the presumptive sentences are:

______________________________________________________________________________

(a)(A) Murder in the second

degree, as defined in

ORS 163.115. 300 months

(B) Murder in the first

degree, as defined

in ORS 163.107. 360 months

(C) Attempt or conspiracy

to commit aggravated

murder, as defined

in ORS 163.095. 120 months

(D) Attempt or conspiracy

to commit murder

in any degree. 90 months

(E) Manslaughter in the

first degree, as defined

in ORS 163.118. 120 months

(F) Manslaughter in the

second degree, as defined

in ORS 163.125. 75 months

(G) Assault in the first

degree, as defined

in ORS 163.185. 90 months

(H) Assault in the second

degree, as defined

in ORS 163.175. 70 months

(I) Kidnapping in the first

degree, as defined in

ORS 163.235. 90 months

(J) Kidnapping in the second

degree, as defined in

ORS 163.225. 70 months

(K) Rape in the first degree,

as defined in ORS 163.375. 100 months

(L) Rape in the second

degree, as defined in

ORS 163.365. 75 months

(M) Sodomy in the first

degree, as defined in

ORS 163.405. 100 months

(N) Sodomy in the second

degree, as defined in

ORS 163.395. 75 months

(O) Unlawful sexual

penetration in the first

degree, as defined

in ORS 163.411. 100 months

(P) Unlawful sexual

penetration in the

second degree, as

defined in ORS 163.408. 75 months

(Q) Sexual abuse in the first

degree, as defined in

ORS 163.427. 75 months

(R) Robbery in the first

degree, as defined in

ORS 164.415. 90 months

(S) Robbery in the second

degree, as defined in

ORS 164.405. 70 months

(b)(A) Arson in the first degree,

as defined in ORS 164.325,

when the offense represented

a threat of serious

physical injury. 90 months

(B) Using a child in a display

of sexually explicit

conduct, as defined in

ORS 163.670. 70 months

(C) Compelling prostitution,

as defined in ORS 167.017

(1)(a), (b) or (d). 70 months

(c) Aggravated vehicular

homicide, as defined in

ORS 163.149. 240 months

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(5) If a person charged with an offense under this section is found guilty of a lesser included offense and the lesser included offense is:

(a) An offense listed in subsection (4) of this section, the court shall sentence the person as provided in subsections (1) and (2) of this section.

(b) Not an offense listed in subsection (4) of this section:

(A) But constitutes an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court, upon motion of the district attorney, shall hold a hearing to determine whether to retain jurisdiction or to transfer the case to juvenile court for disposition. In determining whether to retain jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence the person as an adult under sentencing guidelines. If the court does not retain jurisdiction, the court shall:

(i) Order that a presentence report be prepared;

(ii) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

(iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

(iv) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255.

(B) And is not an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court may not sentence the person. The court shall:

(i) Order that a presentence report be prepared;

(ii) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

(iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

(iv) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255.

(6) When a person is charged under this section, other offenses based on the same act or transaction shall be charged as separate counts in the same accusatory instrument and consolidated for trial, whether or not the other offenses are aggravated murder or offenses listed in subsection (4) of this section. If it appears, upon motion, that the state or the person charged is prejudiced by the joinder and consolidation of offenses, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

(7)(a) If a person charged and tried as provided in subsection (6) of this section is found guilty of aggravated murder or an offense listed in subsection (4) of this section and one or more other offenses, the court shall impose the sentence for aggravated murder or the offense listed in subsection (4) of this section as provided in subsections (1) and (2) of this section and shall impose sentences for the other offenses as otherwise provided by law.

(b) If a person charged and tried as provided in subsection (6) of this section is not found guilty of aggravated murder or an offense listed in subsection (4) of this section, but is found guilty of one of the other charges that constitutes an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court, upon motion of the district attorney, shall hold a hearing to determine whether to retain jurisdiction or to transfer the case to juvenile court for disposition. In determining whether to retain jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence the person as an adult under sentencing guidelines. If the court does not retain jurisdiction, the court shall:

(A) Order that a presentence report be prepared;

(B) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

(C) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

(D) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255. [1995 c.422 §49; 1995 c.421 §4; 1997 c.852 §3; 1999 c.1055 §12; 2007 c.867 §6; 2011 c.334 §2; 2019 c.634 §5; 2019 c.635 §11]

Note: See second note under 137.700.