Argued and submitted November 5,

reversed November 8,

reconsideration denied December 13, 1979,

petition for review denied January 22, 1980 (288 Or 493)

#### STATE ex rel ANDERSON, *Respondent, v.*HAAS, *Appellant.*

(No. [ A XXXX-XXXXX ], CA 15914)

602 P2d 346

David L. Hattrick, Deputy District Attorney, Port-nd, argued the cause and filed the brief for appel-nt.

Janet L. Hoffman, Metropolitan Public Defender, irtland, argued the cause and filed the brief for spondent.

*170Before Schwab, Chief Judge, and Lee and Richardson, Judges.

SCHWAB, C. J.

*171SCHWAB, C. J.

Plaintiff, who has been indicted and is awaiting ial for a Class A felony, brought this mandamus roceeding to compel defendant, the Multnomah ounty District Attorney, to consider plaintiff for disrsion pursuant to ORS 135.881 *et seq,*as an altema-ve to prosecution at the present time.1 The altema-ve writ of mandamus alleges, in essence, that defend-it declined to consider plaintiff for diversion because is defendant’s policy or practice not to divert persons ho are charged with Class A felonies. Defendant imurred to the alternative writ on the grounds it did )t state sufficient facts to constitute a cause of action, he trial court overruled the demurrer, defendant fused to plead further, and the court ordered the suance of a peremptory writ of mandamus command-g defendant to consider plaintiff for diversion. We ¡verse.

The parties’ principal disagreement is over the eaning of ORS 135.886, which provides:

> "(1) After an accusatory instrument has been filed charging a defendant with commission of a crime, and after the district attorney has considered the factors listed in subsection (2) of this section, if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the district attorney may propose a diversion agreement to the defendant the terms of which are established by the district attorney in conformance with ORS 135.891.

> "(2) In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors:

> "(a) The nature of the offense; however, the *172offense must not have involved injury to another person;

> "(b) Any special characteristics or difficulties of the offender;

> "(c) Whether the defendant is a first-time offender; if the offender has previously participated in diversion, according to the certification of the State Court Administrator, diversion shall not be offered;

> "(d) Whether there is a probability that the defendant will cooperate with and benefit from alternative treatment;

> "(e) Whether the available program is appropriate to the needs of the offender;

> "(f) The impact of diversion upon the community;

> "(g) Recommendations, if any, of the involved law enforcement agency;

> "(h) Recommendation, if any, of the victim;

> "(i) Provisions for restitution; and

> "(j) Any mitigating circumstances.”

The parties agree that the statute gives the district attorney discretion over whether to offer diversion to a criminal defendant.2 Plaintiff argues that, although that final diversion decision is discretionary, the district attorney has a mandatory duty to consider *all*of the factors enumerated in ORS 135.886(2) with respect to *every*criminal defendant before exercising his discretion to offer or not to offer diversion. Defendant district attorney argues that the factors set forth in ORS 135.886(2) have no bearing on his decision *unless*he decides to consider diversion. In sum, plaintiff interprets ORS 135.886 as establishing a right for all persons charged with crimes to be considered for diversion in light of the specific factors listed in subsection (2), while defendant contends that a district attorney has discretion over whether to consider a criminal defendant for diversion, and that his decision to consider diversion is a condition precedent to any require-*173lent that he consider the factors enumerated in ORS 35.886(2).

In our view, plaintiff’s interpretation of the statute s not consistent with the language or the practical peration of ORS 135.886(2). As noted, plaintiff agrees rat the statute confers discretion on a district attor-ey to decide whether or not a particular criminal efendant will be offered diversion. If a district attor-ey’s decision is discretionary, he necessarily must ave authority to regard any *particular*factor or com-ination of factors — including but not necessarily lim;ed to those specified in ORS 135.886(2) — as being ispositive for or *against*diversion. Nothing in ORS 35.886(2) suggests that the district attorney must reigh the factors listed in that subsection in a particu-ir way, or that he cannot give decisive weight to any ne or any combination of the factors in arriving at a ecision regarding diversion.

A particular district attorney might conclude that e will *never*exercise his discretion by offering diver-ion to persons charged with particular kinds of ffenses, *e.g.,*offenses of a given degree (such as Class felonies), or offenses which he feels are susceptible ) and in need of deterrence (such as shoplifting). ORS 35.886(2)(a) provides that one of the factors for the istrict attorney to consider is "[t]he nature of the fíense.” If the district attorney has decided that he dll never offer diversion in cases involving offenses ommitted in a particular manner, the subsection rould be rendered absurd by an interpretation which *■equires,*in cases where such offenses are involved, rat he *consider all*of the factors it enumerates when *ne*of the factors conclusively determines how he will xercise his discretion.

According to plaintiff’s allegations, the above xample precisely duplicates what happened here. The istrict attorney has decided that persons charged dth Class A felonies will not be diverted. We do not onstrue the statute as requiring him to perform the *174futile gesture of considering the other nine factors enumerated in ORS 135.886(2) when his decision not to divert is and properly can be based on the single factor specified in ORS 135.886(2)(a).

In addition to his statutory argument, plaintiff contends that he has been denied equal protection (US Const, Amend XIV; Or Const, Art I, § 20), and due process (US Const, Amend XIV) by defendant’s refusal to consider him for diversion. As we understand plaintiffs constitutional arguments, both presuppose the existence of the statutory right which we have concluded the legislature has not conferred on him.3

The demurrer to the alternative writ should have been allowed.

Reversed.

1

 ORS 135.881(2) provides:

> " 'Diversion’ means referral of a defendant in a criminal case to a supervised performance program prior to adjudication.”

2

 ORS 135.886(2)(a) and (c), respectively, prohibit district attorneys from proposing diversion to persons accused of offenses involving inquiry to another person and to persons who have previously participated in diversion. Neither prohibition is relevant here.

3

 Plaintiff does *not*contend that if he has no statutory right to be considered for diversion, defendant’s policy against diversion of persons charged with Class A felonies is arbitrary or capricious or constitutes a classification lacking rational support.