(b) If the court is not authorized to impose the new sentence requested in the petition on the original crime of conviction due to the fact that the new sentence is lower than a sentence required by ORS 137.690, 137.700, 164.061, 475.907, 475.925, 475.930 or 813.011, the terms of the agreement shall include the vacating of the original judgment of conviction, and may include the preparation by the district attorney of a new charging instrument with an alternative offense, a plea by the person to the alternative offense and waiver of any challenges to the conviction for the alternative offense and the imposition by the court of the new sentence on the alternative offense.
(2)(a) Upon receipt of the petition described in subsection (1) of this section, the court shall hold a hearing. The court may grant the petition if the court determines that the original sentence no longer advances the interests of justice.
(b) If the court grants the petition, but the court is not authorized to impose the new sentence requested in the petition on the original conviction due to fact that the new sentence is lower than a sentence required by ORS 137.690, 137.700, 164.061, 475.907, 475.925, 475.930 or 813.011, the court shall vacate the original judgment of conviction and proceed in accordance with the agreement. If applicable, the district attorney shall prepare a charging instrument charging the person with an alternative offense, the court shall proceed with taking a plea to the alternative offense, the person shall waive any challenges to the conviction for the alternative offense and the court shall impose the new sentence requested in the petition.
(c) If the court grants the petition and the court is not prohibited from imposing the sentence requested in the petition as described in paragraph (b) of this subsection, the court shall proceed in accordance with the agreement.
(d) If the court imposes a new sentence on the original conviction under this section, the court shall resentence the defendant in the same manner as if the person had not previously been sentenced, provided that the new sentence, if any, is not greater than the original sentence. The court shall impose the new sentence as specified in the petition notwithstanding any other law mandating or requiring a specific sentence.
(3) The court may consider post-conviction factors when determining whether to grant a petition under this section, including but not limited to:
(a) The person’s disciplinary record and record of rehabilitation while incarcerated;
(b) Evidence that reflects whether the person’s age, time served and diminished physical or mental condition, if any, have reduced the person’s risk for future violence;
(c) The safety of the victim associated with each conviction in the petition;
(d) The amount of the original sentence already served by the person; and
(e) Evidence that reflects changed circumstances since the person’s original sentencing and shows that the person’s continued incarceration no longer advances the interests of justice.
(4)(a) The district attorney shall use all reasonable efforts to inform the victim associated with each conviction in the petition, in a trauma-informed manner, of the fact that a petition has been filed under this section, and provide a copy of the petition to the victim, as soon as practicable and no later than 30 days before any hearing on the petition. The district attorney shall further make all reasonable efforts to provide notification to the victim of the date of the hearing, explain the petition process under this section to the victim, provide opportunities for input by the victim and provide the victim with access to available victim advocates and other related services.
(b) At the hearing described in subsection (2) of this section, the court shall provide an opportunity for victims to make a statement in person, in writing or through a representative.
(5) When a person is resentenced under this section, the person shall receive credit for time served under ORS 137.370. If the person is convicted of a new offense under this section, the court shall indicate that the new crime of conviction was committed as part of the same criminal episode as the original crime of conviction.
(6) A resentencing under this section does not revive any challenge to the resentenced conviction if the challenge would have been barred at the time of resentencing due to the passage of time. [2021 c.414 §1]
Note: 137.218 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 137 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.