dissenting.
The majority holds that “using defendants’ juvenile adjudications in calculating their criminal history scores under the sentencing guidelines [does] not violate the jury trial provision of Article I, section 11,” of the Oregon Constitution. 321 Or at 10. As the primary justification for its holding, the majority states:
“Before the enactment of the sentencing guidelines, a sentencing judge was entitled to take into consideration a vast array of circumstances in trying to determine the appropriate sentence. The judge frequently considered adjudicated and unadjudicated wrongdoing, other scrapes with the law, and many other types of pertinent information in reaching the sentencing decision. The sentencing guidelines purport to narrow somewhat that range of considerations, but they do not narrow it entirely — they still permit the judge to consider an offender’s prior scrapes with the law that have resulted in a formal adjudication by a juvenile court that the offender had committed an act which, had it been committed by an adult, would have been punishable as a felony. Defendants do not suggest that, before the adoption of the sentencing guidelines, it would have been impermissible for a *12sentencing judge to consider their juvenile adjudications, and they offer no persuasive reason why their use is not permissible now.” 321 Or at 9.
I find that analysis flawed, incomplete, and unpersuasive. I would hold that, under this court’s decision in State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 857 P2d 842 (1993), Article I, section 11, of the Oregon Constitution1 prevents the use of nonjury juvenile adjudications2 under the sentencing guidelines by a sentencing court to establish a longer sentence for an adult offender than the offender would have received in the absence of those adjudications. I respectfully dissent.
The Court of Appeals, in a 5-4 decision, upheld the use of juvenile adjudications under the sentencing guidelines in State v. Stewart, 123 Or App 147, 859 P2d 545 (1993), adhered to as modified on reconsideration, 126 Or App 456, 868 P2d 794 (1994). In State v. Billings, 124 Or App 682, 865 P2d 1340 (1993), a panel of the Court of Appeals affirmed defendant’s sentence from the bench. This court allowed review and consolidated the cases of Stewart and Billings.
In Stewart, the majority of the Court of Appeals rejected defendant’s Article I, section 11 argument, holding that “[a]n adjudication sufficient to commit a juvenile to a juvenile facility can later be used to enhance a sentence as an adult.” Stewart, 123 Or App at 151. In essence, the majority of the Court of Appeals held that, because most due process guarantees are afforded a juvenile during the jurisdictional phase of a juvenile delinquency proceeding, the use of the juvenile adjudication later to enhance an adult offender’s criminal sentence does not violate due process.
A dissenting opinion, which I find consistent with this court’s decision in Reynolds, states:
“I agree that the kind of fully adversarial form of fact finding that a jury engages in would add little to, and may be *13incompatible with, a juvenile justice system whose purpose is to determine what kind of care, custody and control will best meet the needs of the child. I also agree that, for the purpose of making that kind of rehabilitative determination, a non-jury adjudication that an offender committed an act that would be criminal if committed by an adult is constitutionally valid.
“The fact that defendant’s previous juvenile adjudications were constitutionally valid for certain purposes does not mean that they were ‘valid for all purposes.’ Baldasar v. Illinois, 446 US 222, 226, 100 S Ct 1585, 64 L Ed 2d 169 (1980) (Marshall, J., concurring). * * *
“An adult criminal offender may be deprived of a liberty interest only after a trial that offers the full complement of constitutional safeguards, unless the offender has sentiently waived them. A sentence enhancement on the basis of a prior, lawful, adjudication that did not have the same safeguards is unconstitutional. The United States Supreme Court was right, and the majority here is wrong. Defendant’s right to a jury under Article I, section 11, was violated by using the juvenile adjudications to imprison him.” Stewart, 123 Or App at 155-56 (De Muniz, J., dissenting) (footnote omitted).
I agree with the dissent in the Court of Appeals that this court’s opinion in Reynolds means that Article I, section 11, of the Oregon Constitution prevents the use of juvenile adjudications under the sentencing guidelines to establish a longer sentence for an adult offender than the offender would have received in the absence of those ajudications. In Reynolds, in determining whether a trial by jury was required by Article I, section 11, of the Oregon Constitution or the Sixth Amendment to the federal constitution during the jurisdictional phase of a juvenile delinquency proceeding,3 *14this court inquired into the history and purpose of the juvenile system in Oregon. The court concluded that “[f]rom 1907 to the present, juvenile justice in Oregon has been based primarily on a ‘rehabilitation’ model, rather than on a ‘due process’ or ‘crime control’ model.” Reynolds, 317 Or at 567 (emphasis added). In Reynolds, this court said that the juvenile courts
“rarely have been criticized for the severity of their dispositional judgments. Without exception, this court’s cases support the conclusion that the Oregon juvenile justice system always has been focused on the rehabilitation of delinquent youth. Unlike many states that recently have shifted their focus from juvenile rehabilitation to juvenile accountability and punishment, Oregon has remained faithful to its original emphasis on the rehabilitation of delinquent youth.
CÍ* ‡ * * *
“The clear and unequivocal message of Oregon’s juvenile code is to notify and involve parents whenever possible and to focus on the family, to involve schools and appropriate social agencies as early as possible, to handle matters informally, and to approach each child’s alleged delinquency as an equitable problem rather than a criminal problem. * * *
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“* * * In no way is the adult criminal justice system comparable to that [rehabilitation] model.” Id. at 568-74 (emphasis added) (footnotes and citations omitted).
Ultimately, this court concluded:
“In summary, in the jurisdictional phase of a delinquency proceeding * * *, the issue is not whether the child should be punished for his or her conduct but, rather, whether the statutory grounds for jurisdiction have been established and, if so, what disposition is in the child’s best interests. Juvenile courts are concerned with rehabilitation, not punishment. If the state wishes to prosecute a child criminally, it must do so by transferring the child to an adult criminal court.
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“We conclude that, in the juvenile code, the legislature so changed the way that a juvenile is treated as to create a proceeding that is sui generis. We hold that the jurisdictional phase of a juvenile proceeding under ORS 419.476(l)(a) is not a ‘criminal prosecution’ within the meaning of Article I, section 11, of the Oregon Constitution.” Id. at 574-75 (emphasis added).
*15As is clear from the foregoing quotations, this court in Reynolds recognized the crucial difference between adult criminal courts and juvenile delinquency proceedings. Underlying this court’s decision in Reynolds is the principle that the juvenile justice system has a greater need for experimentation and flexibility than adult criminal courts because juvenile courts are concerned with rehabilitation, not punishment. Accordingly, the decision in Reynolds implies that formal, adversarial proceedings are unnecessary and that informality in juvenile proceedings is permissible under Article I, section 11, because the focus of juvenile adjudications is on noncriminal, nonpunitive (rehabilitative) purposes.
In these consolidated cases, however, defendants are not faced with the type of rehabilitative, nonpunitive situation described in Reynolds. Rather, defendants are faced with incarceration in the adult criminal justice system, where effective rehabilitation and the best interests of the offender are not among the primary goals stated by the sentencing guidelines. OAR 253-02-001(1) provides that the primary objectives of the sentencing guidelines are “to punish each offender appropriately, and to insure the security of the people in person and property.” (Emphasis added.)
The sentencing guidelines operate on a matrix system, which uses grid blocks to determine the presumptive sentence to be imposed. One side of the matrix is the “crime seriousness scale,” based on the seriousness of the crime for which the person is being sentenced. OAR 253-04-001(1). The other side of the matrix is the “criminal histoiy scale,” which increases the penalty range based on the person’s prior “criminal” record. Id. Each of the grid blocks formed by the intersection of a crime seriousness category and a criminal history category represents a presumptive sentence classification. OAR 253-04-001(2).
The grid block assigned to a defendant is used to establish a presumptive sentence under the guidelines. See ORS 137.669 (“[t]he guidelines * * * shall control the sentences for all crimes committed after the effective date of such guidelines. Except [for departure sentences for specific reasons], the incarcerative guidelines and other guidelines so designated by the board shall be mandatory and constitute presumptive sentences”) (emphasis added). In all cases, the *16sentencing judge must use the grid block to establish the presumptive sentence for the offender. OAR 253-04-001(2). The presumptive sentence in the guidelines is the sentence that should be imposed in the usual case. OAR 253-08-001. In cases of departure, the grid block is used to establish the maximum length of departure that a sentencing court may impose. OAR 253-08-004.
The sentencing guidelines combine nonjury juvenile adjudications with adult convictions to determine a person’s criminal history category. The criminal history category, which is one of the two factors used to establish a presumptive sentence, is determined by examining only prior adult convictions and juvenile adjudications. See OAR 253-04-006(2) (“[a]n offender’s criminal history is based upon the number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender’s criminal history at the time the current crime or crimes of conviction are sentenced”). Thus, nonjury juvenile adjudications of “person felonies” are treated identically to “adult person felonies” to determine a person’s criminal history category. OAR 253-04-007 (describing calculation of criminal history categories). In addition, nonjury juvenile adjudications of nonperson felonies are given a specific value under the guidelines. Id.
In Stewart, the trial court used four juvenile adjudications to calculate defendant’s criminal history category, which resulted in a longer sentence than he would have received in the absence of those adjudications. Without the juvenile adjudications, defendant’s maximum presumptive sentence would have been 18 months. The use of juvenile adjudications to calculate defendant’s criminal history category resulted in the imposition of a presumptive sentence of 22 months in prison and 36 months of post-prison supervision.
In Billings, the trial court used several nonperson felonies and a juvenile adjudication for sodomy to calculate defendant’s criminal history category, which resulted in a longer sentence than he would have received in the absence of those adjudications. The trial court imposed a 34-month sentence for each of defendant’s convictions. Without the *17juvenile adjudication for sodomy, defendant’s maximum presumptive sentence would have been 26 months under the sentencing guidelines.
Thus, in both Stewart and Billings, defendants were sentenced to periods of incarceration, parts of which were attributable to earlier nonjury juvenile adjudications. Incarceration in the penitentiary (or extended incarceration) attributable to nonjury juvenile adjudications does not comport with nonpunitive, rehabilitative consequences that this court envisioned in Reynolds. In each of these cases, the nonjury juvenile adjudication at issue had significant punitive consequences. Thus, the holding of the majority conflicts with the foundational underpinnings of this court’s decision in Reynolds.
In fact, the majority does not address directly the rationale behind Reynolds. As quoted above, the majority’s major argument is that, because judges historically have been able to consider offenders’ “prior scrapes with the law,” there is no reason why juvenile adjudications may not be considered under the sentencing guidelines. I disagree with that illogical leap. I agree that juvenile adjudications were one of the factors considered by the sentencing judge under an indeterminate sentencing regime. See State v. Scott, 237 Or 390, 399-400, 390 P2d 328 (1964) (setting forth considerations sentencing court may use under indeterminate sentencing scheme that preceded sentencing guidelines). That historical fact does not mean, however, that juvenile adjudications arrived at without a trial by jury may be used to enhance an adult offender’s sentence under the sentencing guidelines.4
Unlike the historical method of indeterminate sentencing, under the sentencing guidelines, the trial court is not entitled to weigh the circumstances surrounding a particular nonjury juvenile adjudication orto disregard the adjudication *18altogether if the trial court believes it is appropriate. The sentencing judge must impose a presumptive sentence, calculated in part by considering juvenile adjudications, unless the judge has “substantial or compelling reasons to impose a departure.” OAR 253-08-001. The sentencing guidelines contain a “nonexclusive” list of departure factors that does not include discretionary review of prior juvenile adjudications in mitigating a presumptive sentence. OAR 253-08-002(1). As a result, unlike the indeterminate sentencing regime, under the sentencing guidelines, juvenile adjudications have significant punitive consequences. The sentencing guidelines require trial courts to consider nonjury juvenile adjudications in a structured, nondiscretionary format. Through the use of juvenile adjudications in adult sentencing, those adjudications are used for “crime control” and “punitive” purposes rather than for the rehabilitative purposes touted in Reynolds.
In Reynolds, this court held that juries are not constitutionally required in juvenile delinquency proceedings because such proceedings are not criminal prosecutions. Although, under Reynolds, a child may be adjudicated without a jury for the purposes of juvenile, nonpunitive proceedings, the constitutionality of that adjudication dissipates when the adjudication is used indistinguishably with an adult criminal conviction to calculate an adult offender’s criminal history category.5
*19The juvenile justice system cannot be used as both a sword and a shield. Under Reynolds, because juvenile adjudications are designed to ascertain and protect the best interests of the child, the state is shielded from having to provide a trial by jury. I would not allow, as the majority does today, the state to turn around and use a juvenile adjudication obtained without a trial by jury as a sword to imprison a criminal defendant in an adult facility. As this court stated in Reynolds, if the state wishes to punish a juvenile offender, it must remand the child to adult court for a criminal prosecution that includes the right to a trial by jury. Reynolds, 317 Or at 574.
As the Supreme Court of the United States warned nearly thirty years ago:
“[Tjhere may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Kent v. United States, 383 US 541, 556, 86 S Ct 1045, 16 L Ed 2d 84 (1966).
The majority opinion creates the worst of both worlds for juveniles brought under the jurisdiction of juvenile courts in Oregon — a juvenile offender need not receive an adjudication by an impartial jury, yet that adjudication later may be used under the sentencing guidelines to establish a longer sentence in adult prison for an offender than that offender would have received in the absence of that adjudication. Moreover, the majority gives the state the best of both worlds — the state need not provide a trial by jury in a juvenile adjudication, yet it later may use that same adjudication to have an adverse effect on an adult offender’s length of sentence.
Under Reynolds, Article I, section 11, of the Oregon Constitution does not require a trial by jury in the jurisdictional phase of a juvenile delinquency proceeding. However, I do not believe that a nonjury juvenile adjudication later may be used to establish a longer sentence in an adult prison for an offender than that offender would have received in the absence of that adjudication. Accordingly, I would reverse the decision of the Court of Appeals and the judgment of the *20circuit court, vacate the sentences of each defendant, and remand the cases to the circuit court for resentencing.
I respectfully dissent.
Fadeley, J., joins in this dissenting opinion.Article I, section 11, of the Oregon Constitution provides in part: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed.”
“ ‘Juvenile Adjudication’ means formal adjudication or finding by a court that the juvenile has committed an act which, if committed by an adult, would be punishable as a felony.” OAR 253-03-001(11).
“Juvenile court delinquency proceedings have two aspects: (a) the adjudicatory or jurisdictional phase, in which the court must decide whether the young person’s conduct warrants juvenile court jurisdiction; and (b) the dispositional phase, in which the judge is faced with the task of what to do with a youth over whom jurisdiction has been established.” Robert H. Mnookin and D. Kelly Weisberg, Child, Family and State: Problems and Materials on Children and the Law 1008 (2d ed 1989).
In addition, the majority does not analyze whether the use of nonjury juvenile adjudications in (preguidelines) indeterminate sentencing was constitutional. It merely asserts that courts did consider that type of adjudication and that these defendants do not argue that it was impermissible for judges to consider such information before the sentencing guidelines. A constitutional holding should not be based on the premise that ‘ ‘it has always been that way’ ’ and that “the parties did not raise it.” If the majority chooses to rely on historical practice, I believe that the majority should at least do an independent analysis as to whether the earlier practice on which it relies was constitutional.
The dissent in the Court of Appeals argued that “[t]he fact that defendant’s previous juvenile adjudications were constitutionally valid for certain purposes does not mean that they were ‘valid for all purposes.’ Baldasar v. Illinois, 446 US 222, 226, 100 S Ct 1585, 64 L Ed 2d 169 (1980) (Marshall, J., concurring).” State v. Stewart, 123 Or App 147, 155, 859 P2d 545 (1993) (De Muniz, J., dissenting), adhered to as modified on reconsideration, 126 Or App 456, 868 P2d 794 (1994).
The majority dismisses that argument by noting that the Supreme Court’s opinion in Baldosar was overruled by Nichols v. United States, 522 US__, 114 S Ct 1921, 128 L Ed 2d 745 (1994). 321 Or at 8. Although that is true, Baldosar was not offered as anything more than persuasive authority. Baldosar involved an uncounselled misdemeanor conviction that was valid at the time that it was imposed because no prison time was actually imposed: In a plurality opinion, the Supreme Court held that the uncounselled conviction was not valid to enhance a later sentence that did involve incarceration. Baldasar, 446 US at 221-22. That holding was overruled in Nichols.
The analogy is appropriate in this case, regardless of whether Baldosar was overruled. In my view, the majority must grapple with the merits of the argument rather than dismiss it simply because the Supreme Court of the United States ultimately rejected a similar argument. Just because a juvenile adjudication is valid *19under Article I, section 11, of the Oregon Constitution for its consequences in the juvenile system does not make it valid for all purposes and at all times.