602 September 2, 2026 No. 822
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROBERT TURNER McDANIEL,
Defendant-Appellant.
Coos County Circuit Court
23CR50424; A185919
Martin E. Stone, Judge.
Argued and submitted June 18, 2026.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Jose B. Garcia-Fuerte, Assistant Attorney General,
argued the cause for respondent. On the brief were Dan
Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Kyleigh Gray, Assistant Attorney General.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.*
KAMINS, J.
Remanded for resentencing; otherwise affirmed.
* Lagesen, C. J., vice Pagán, J.
Cite as 352 Or App 602 (2026) 603
KAMINS, J.
Defendant appeals a judgment of conviction for one
count of first-degree manslaughter, ORS 163.118; one count
of first-degree burglary, ORS 164.225; and 13 counts of firstdegree theft, ORS 164.055. Defendant assigns error to the
sentencing court’s denial of his eligibility for good time and programs under ORS 137.750, arguing that the court’s reasons for the denial were insufficient to overcome the statutory presumption of eligibility. The state contends that
that argument is not preserved and, even if it is preserved, that the court’s reasons were sufficient. We conclude that
defendant’s argument is preserved and well-taken, and we
remand for resentencing. A previous unsuccessful engagement with voluntary drug treatment programs, comments
about not wanting treatment in the past, and a general concern of recidivism do not amount to “substantial and compelling” reasons to deny eligibility for good time and programs.
Procedural History. Defendant, while under the
influence of methamphetamine, entered his uncle’s home
without permission and removed 13 firearms. Defendant’s
uncle and grandfather, having been informed by a neighbor of defendant’s actions and fearing he posed a danger to
others, began searching for defendant in separate vehicles.
Defendant’s grandfather found defendant, who was also in
a vehicle at the time, and rammed his vehicle into defendant’s to prevent him from driving away. Defendant exited
his vehicle with a shotgun and shot his grandfather who
was still sitting in his own vehicle. His grandfather died
instantly. Police apprehended defendant at the scene.
Defendant and the state entered into a plea deal
with a stipulated sentence of 307 months for one count of
first-degree manslaughter, one count of first-degree burglary, and 13 counts of first-degree theft. The only issue at the sentencing hearing was whether defendant could be considered for “programs and good time,” meaning “any form
of temporary leave from custody, reduction in sentence,
work release or program of conditional or supervised release authorized by law for which the defendant is otherwise eligible at the time of sentencing * * *.” ORS 137.750.
604 State v. McDaniel
The sentencing hearing focused on defendant’s history with substance abuse and mental health challenges.
Both parties relied on information in the final report of a
psychiatric evaluation conducted after defendant’s arrest.
The report summarized defendant’s previous experience with mental health and substance use treatment. It
described how defendant experienced symptoms of schizophrenia and other mental disorders from a young age and
began using methamphetamine soon after high school.
When interviewed, his mother described his drug problem
as “a constant cycle.” On three or four occasions, she took
defendant to the hospital because she was concerned that
his intoxication would lead to a heart attack. During one of those occasions, the hospital kept defendant in the behavioral health unit for ten days but then released him because he refused voluntary treatment. During those visits, defendant was assessed by mental health clinicians, but he never
received ongoing treatment from the hospital.
Defendant’s family repeatedly tried to obtain substance abuse treatment for him. He once spent ten days in a
rehabilitation facility but started drinking again “as soon as he came home.” He “ran away” from another treatment facility that his mother described to the evaluator as “almost a
cult thing.” Three years before the events of this case, defendant participated for nine months in an outpatient substance abuse program. Notes from that program recommended that
he pursue mental health treatment in the future:
“After multiple attempts at treatment, he fell into an old
pattern. He was engaged in the beginning, then as time
went on he continued to use, became disengaged, and eventually stopped showing up to groups altogether. He seemed
to be struggling with depression as well as his substance
use. He will be closed as noncompliant due to his instability [sic] to reach his treatment goals or make contact with
his counselor. * * * It would also be recommended that he
engage in mental health [treatment] to get a better understanding of his depression.”
Defendant’s substance abuse and treatment history, as detailed in the report, was the main topic discussed at the sentencing hearing.
Cite as 352 Or App 602 (2026) 605
The state argued that defendant should not be
allowed programs and good time because he had “been given
opportunity after opportunity after opportunity to address
his alcohol problem, to address his methamphetamine problem, and also to address his mental health issues,” but defendant had not successfully taken advantage of those opportunities. The state referenced notes in defendant’s treatment
records that defendant had said, “I use because I enjoy it”
and “I don’t want to quit.” The state emphasized that defendant “continues to drink despite the negative consequences”
and that he “does not want any help,” quoting from defendant’s hospital records. The state argued that a treatment
program “offered him services, and he basically quit going.”
In response, defendant argued that the drug treatment programs he had been offered were unable to effectively address his undiagnosed mental health issues and
that he might be successful in treatment programs that did
address those issues. He described how his background and
difficult upbringing contributed to his long-standing mental health and substance use struggles and cited recent scientific research connecting untreated mental disorders to methamphetamine use. Defendant pointed out that in his upbringing, there were “no school counselors, educators, no health professionals or others who could assist” in diagnosing his mental health issues. Defendant explained that he had been prescribed psychiatric medication for the first time upon entering custody and that the new medication had finally begun
mitigating his mental health problems. Defendant pointed
out that even his mother had said that “he’s been able to
communicate with her more clearly than he has for most of
his adult life” since starting the new medication. Defendant argued that programs and good time were important in this
case to “make sure that he understands * * * that if he takes those medications * * * not the methamphetamine * * * that
he has a hope of a life in the future.” Defendant argued that eligibility for good time would incentivize him to continue
the new medication, engage with treatment for his problems,
and follow the rules while incarcerated.
After hearing the parties’ arguments, the court sentenced defendant to the stipulated 307 months and denied
606 State v. McDaniel
eligibility for good time and programs. Those programs
include work release for the purposes of alcohol, drug, and
mental health treatment. ORS 144.420(1)(c) - (d); OAR 291-149-0110(5). The court stated on the record that it would
deny good time and programs because defendant had not
successfully engaged with treatment programs in the past:
“I’ll adopt what the state has said * * * that he has had multiple attempts to address what appears to be some substance
abuse issues, has not engaged in the services that have been
offered in the past, and in fact, as I recall, a couple times
indicated that he’d prefer to use methamphetamine than
engage in services. So those concerns on my part convince
me, as a substantial and compelling reason, that programs
should not be available under [ORS] 137.750 or 137.751.”
The court additionally referenced concerns of recidivism as a reason to deny programs:
“And I’d indicate sometimes the past is a good predictor
of the future, and I realize that [defendant] is back on his
medication now in jail. Sounds like he’s done well while he’s
in jail. But once he gets out, the Court’s concerned, and
is always concerned, about whether something’s going to
happen in the future. So I find substantial and compelling
reasons to deny programs.”
On appeal, defendant assigns error to the sentencing court’s denial of eligibility for good time and programs on Counts 2 through 15 and argues that the court’s stated
reasons were not “substantial and compelling” as required
by ORS 137.750(1). “We review a sentencing court’s decision
to deny a defendant sentencing reduction programs for legal
error * * *.” State v. Messer, 317 Or App 803, 804, 507 P3d 337 (2022).
Preservation. The state contends that defendant’s
argument is not preserved because defendant did not object
to the court’s reasoning following its decision. In fact, it appears that defendant did object after the court’s ruling.
According to the sentencing hearing transcript, after the
court’s ruling, an unidentified speaker said, “Your Honor,
just for purposes of appeal, we would state on the record an objection to the—to the findings (indiscernible) reasons just on Counts 2 through 15, not—not on Count 1.”
Cite as 352 Or App 602 (2026) 607
Given the context and other statements made by
that speaker throughout the hearing, it seems certain that
the speaker represented defendant. Though part of the objection was indiscernible on the transcript, the speaker clearly intended to object to the sufficiency of the court’s reasons for denying programs and good time because that was the only
aspect of the sentence that had not been stipulated by the
plea deal. The transcript shows that the court heard and
understood the objection, and it responded by saying, “Very
well. And to be clear, too, I adopt by reference what [the
state] reported [to] the Court—my findings include what he
said earlier.”
The state, the court, and the defendant understood
that the issue at hand was whether defendant was eligible
for programs. See State v. Walker, 350 Or 540, 548, 258 P3d
1228 (2011) (preservation requirements are meant to ensure
no party is “taken by surprise, misled, or denied opportunities to meet an argument” (internal quotation marks omitted)). Therefore, defendant’s argument is preserved.
Merits. Defendant argues that the court’s reasons
for denying sentence-reduction programs were not sufficiently “substantial and compelling” to overcome the presumption of eligibility granted by ORS 137.750(1). The court based its ruling on defendant’s unsuccessful engagement in
multiple previous opportunities for substance abuse treatment; defendant’s previous statements that he did not have
a drug problem and did not want treatment; and a concern
that defendant might pose a threat to the community upon
release from incarceration in the future. We agree that those reasons are not sufficient.
A sentencing court must order on the record as
part of a sentence involving a term of incarceration that
the defendant may be considered by the executing or releasing authority for programs and good time unless the court
finds “substantial and compelling reasons” to order that
the defendant may not be considered for such programs.
ORS 137.750(1). “[S]ubstantial and compelling reasons” to
deny eligibility for sentence reduction and other programs
must be “sufficiently exceptional to show that the presumptive sentence would fail to accomplish the purposes of the
608 State v. McDaniel
sentencing guidelines.” Messer, 317 Or App at 805 (internal
quotation marks omitted).
The purposes of the sentencing guidelines, as stated
in OAR 213-002-0001, are to punish offenders appropriately
and consistently, ensure the security of people and property, prevent recidivism, and reform the offender. To ensure appropriate and consistent punishments, the guidelines define presumptive punishments subject to deviation only for substantial and compelling reasons. OAR 213-002-0001(2) (“Sentencing
guidelines are intended to forward the objectives described
in section (1) by defining presumptive punishments for felony convictions, subject to judicial discretion to deviate for substantial and compelling reasons * * *.”). The guidelines contain a strong presumption that the offender may participate
in programs designed to further the purposes of the guidelines. ORS 137.750(1) (a sentencing court “shall order * * * that the defendant may be considered * * * for any form of temporary leave from custody, reduction in sentence, work release or program of conditional or supervised release authorized by law for which the defendant is otherwise eligible at the time of sentencing, unless the court finds on the record in open court substance and compelling reasons to order that the defendant not be considered for such leave, release or program”).
The programs and sentence reductions with which
defendant is most concerned on appeal are work release for
the purposes of alcohol, drug, and mental health treatment,
ORS 144.420(1)(c) - (d), and “good time” sentence reduction, ORS 421.121. The court’s order also denies defendant eligibility for all other types of “leave, release or program”
described in ORS 137.750.1
With the purposes of the sentencing guidelines in
mind, we now evaluate whether, in this case, the court erred
1
Defendant’s eligibility for the alternate incarceration programs authorized by ORS 421.504 and ORS 421.505 is not at issue on appeal. Eligibility for the alternative incarceration programs authorized by ORS 421.504 and ORS 421.505 requires an order from the sentencing court pursuant to ORS 137.751. That order does not contain a presumption of eligibility and requires several factual findings to be made at a hearing requested by defendant. Id. In this case, the sentencing court referenced ORS 137.751 in its ruling but appeared to deny that order under the “substantial and compelling reasons” standard of 137.750. Neither party refers to ORS 137.751 in its arguments, so we limit our review to the court’s ruling regarding ORS 137.750.
Cite as 352 Or App 602 (2026) 609
in denying defendant eligibility for good time and programs. To avoid error, the sentencing court’s reasons for denying
eligibility for programs must be “sufficiently exceptional”
to show that the presumptive sentence would fail to meet
the purposes of the guidelines. Two of those purposes, as
we established above, are to reduce recidivism and reform
offenders. The court’s three reasons were (1) that defendant had unsuccessfully engaged in multiple previous opportunities for substance abuse treatment, (2) that defendant previously made statements that he did not have a drug problem
and did not want treatment, and (3) that defendant might
pose a threat to the community upon release from incarceration in the future.
First, a defendant’s previous unsuccessful engagement with substance use treatment is not necessarily a substantial and compelling reason to deny program eligibility.
The sentencing court’s concern that defendant’s previously
unsuccessful treatment attempts render him unlikely to
succeed in treatment is not supported by the record or the
research on relapse and recovery. Defendant’s record contains only one previous long-term attempt at substance
abuse treatment, a handful of short-term attempts, and no
attempts at inpatient treatment programs. Those treatment
programs did not work for defendant, but that does not mean
that no treatment will. See, e.g., Nat’l Inst on Drug Abuse, Treatment and Recovery, Nat’l Insts of Health (July 6, 2020), https://nida.nih.gov/publications/drugs-brains-behavior-science-addiction/treatment-recovery (accessed Aug 10, 2026)
(stating that, because of the “chronic nature of addiction,” “relapse is a normal part of recovery” and “indicates that
the person needs to speak with their doctor to resume treatment, modify it, or try another treatment”). Additionally,
defendant had undiagnosed and untreated mental health
problems that made his previous attempts at substance
use treatment less likely to be successful. Defendant’s prior treatment history is not sufficiently exceptional to show that the presumptive sentence—including eligibility for treatment programs—would fail to meet the sentencing guidelines’ purposes of reducing recidivism and reforming the
offender.
610 State v. McDaniel
Second, a defendant’s previous denial of his substance use problem and refusal of treatment is not a substantial and compelling reason to deny program eligibility.
Denial is a common hurdle for an individual suffering from
addiction to overcome. In fact, it is part of the first step in the ubiquitous “12-Step” recovery program. See Joseph
Nowinski, Stuart Baker & Kathleen Carroll, Twelve Step
Facilitation Therapy Manual 37-39 (1999), available at
https://www.niaaa.nih.gov/sites/default/files/match01.pdf
(accessed Aug 3, 2026). Considering that addiction treatment often includes helping the patient accept that they have a
problem and need treatment, the substance abuse treatment
programs contained in the sentencing guidelines would be
ineffective if they were only available to individuals who had never denied having an addiction. In this case, defendant’s
handful of reported comments about not having a problem
and refusing treatment are not sufficiently exceptional to
show that the presumptive sentence—with eligibility for programs—would fail to accomplish the sentencing guidelines’
purposes of reducing recidivism and reforming the offender.
Third, a general concern over recidivism is not a
substantial and compelling reason to deny program eligibility. The sentencing guidelines and sentence reduction
programs are designed to account for an adult in custody’s
potential risk to the community upon release. In this case,
the court vaguely said its concern was the same concern it
“always” has “about whether something’s going to happen
in the future” when defendant is released. Generalized concerns applicable to all defendants cannot amount to substantial and compelling reasons to depart from the default. The
sentencing court did not indicate that defendant posed an
exceptional risk of recidivism nor that programs designed
to reduce recidivism would be exceptionally ineffective for
defendant. See State v. Hikes, 261 Or App 30, 37, 323 P3d
298, rev den, 355 Or 380 (2014) (affirming that the exceptional length of the defendant’s criminal record, paired with his attitude at sentencing, was a substantial and compelling reason to deny eligibility for programs). Thus, the sentencing court’s general concern about defendant’s potential future
recidivism is not sufficiently exceptional to show that the
presumptive sentence—with eligibility for programs that
Cite as 352 Or App 602 (2026) 611
reduce recidivism—would fail to accomplish the sentencing
guidelines’ purposes of reducing recidivism and reforming
the offender.
We conclude that the sentencing court erred in
denying defendant eligibility for programs based on defendant’s previous unsuccessful engagement with substance
abuse treatment programs, defendant’s previous comments
refusing treatment, and the court’s general concern that
defendant might commit crimes again upon future release.
Remanded for resentencing; otherwise affirmed.