State v. Berger

392 P.3d 792, 284 Or. App. 156, 2017 Ore. App. LEXIS 275
CourtCourt of Appeals of Oregon
DecidedMarch 1, 2017
Docket14CR02548; A158330
StatusPublished
Cited by7 cases

This text of 392 P.3d 792 (State v. Berger) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berger, 392 P.3d 792, 284 Or. App. 156, 2017 Ore. App. LEXIS 275 (Or. Ct. App. 2017).

Opinion

TOOKEY, J.

Defendant appeals a judgment of conviction for three counts of sexual abuse in the second degree, ORS 163.425, assigning error to the trial court’s ruling that he is ineligible for any “reduction in sentence” on any count. For the reasons that follow, we affirm.

The historical and procedural facts are undisputed. A Polk County grand jury returned an indictment charging defendant with multiple sexual offenses. Defendant pleaded guilty to two counts of sexual abuse in the second degree (Counts 4 and 5) and no contest to another count of sexual abuse in the second degree (Count 8). In his sentencing memorandum, defendant argued that, under ORS 137.750, “the court does not have the authority to deny a defendant eligibility for ‘reduction in sentence [;] ’ [o]nly the Department of Corrections, pursuant to ORS 421.121, has that authority!.]”1 The trial court rejected defendant’s argument, sentenced defendant to a total of 38 months’ imprisonment, and denied defendant eligibility for “reduction in sentence” on each count pursuant to ORS 137.750(1). The trial court [158]*158stated that it was denying a reduction in sentence “based upon [defendant’s] violation of public trust, that is the trust placed in [defendant] * * * by the community.”

On appeal, defendant does not challenge the adequacy of the court’s finding that there were substantial and compelling reasons for denying defendant’s eligibility for any form of temporary leave from custody, work release, or program of conditional or supervised release. Rather, defendant reprises the argument that he made to the trial court—that the trial court lacked the statutory authority to make him ineligible for a “reduction in sentence” under ORS 137.750(1). Specifically, defendant notes that ORS 137.750(1) requires the sentencing court to order “that the defendant may be considered by the executing or releasing authority for any form of * * * reduction in sentence [.] ” and “the second clause of ORS 137.750—after the ‘unless’ portion of ORS 137.750(1)—does not refer to ‘reduction in sentence.’” Thus, defendant contends that “the ‘plain text’ of ORS 137.750 [only] allows for a court to deny a defendant eligibility for ‘leave, release or program’” and provides it no “authority to deny a defendant eligibility for ‘reduction in sentence.’” Defendant asserts that “[o]nly the Department of Corrections, pursuant to ORS 421.121, has that authority, depending on appropriate institutional behavior [.] ”

The state responds, contending that “[d]efendant’s argument has no merit because the list in the ‘unless’ clause is modified by the term ‘such’” and “the ‘such *** release’ phrase in the last clause effectively reincorporates the preceding ‘reduction in sentence’ phrase in the opening clause.” The state argues that the “necessary effect of a ‘reduction in sentence’—e.g., pursuant to ORS 421.121—is that defendant will be released early on his sentence.”

The parties’ arguments and the trial court’s ruling present a question of statutory interpretation, which we review for legal error. See State v. Thompson, 328 Or 248, 256, 971 P2d 879, cert den, 527 US 1042 (1999) (“A trial court’s interpretation of a statute is reviewed for legal error.”). When we interpret a statute, “[w]e ascertain the legislature’s intentions by examining the text of the statute in its context, along with relevant legislative history, and, if [159]*159necessary, canons of construction.” State v. Cloutier, 351 Or 68, 75, 261 P3d 1234 (2011) (citing State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)).

We turn to the statutory text of ORS 137.750(1). As previously noted, ORS 137.750(1) provides:

“When a court sentences a defendant to a term of incarceration upon conviction of a crime, the court shall order on the record in open court as part of the sentence imposed that the defendant may be considered by the executing or releasing authority 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 substantial and compelling reasons to order that the defendant not be considered for such leave, release or program.”

In disputes such as this, that center on how the legislature structured a statute, we consider “the meaning conveyed through the grammar and structure of the relevant provision” to ascertain the statute’s plain meaning. State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015).

“The ‘doctrine of the last antecedent’ is a long-recognized grammatical principle used in interpreting the text of statutes.” State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996). That doctrine provides that “ [r] eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.” Id. at 386 (internal quotation marks and citations omitted). Another “familiar rule of grammar [is] that the word ‘such’ refers to the last antecedent.” Johnson v. Craddock, 228 Or 308, 316-17, 365 P2d 89 (1961). In that context, “such” can be used as a device “for recapitulating *** the content of a neighboring expression, often with the effect of reducing grammatical complexity.” Randolph Quirk et al, A Comprehensive Grammar of the English Language 76 (1985). Additionally, “[ejvidence that a qualifying phrase is supposed to apply to all antecedents * * * may be found in the fact that it is separated from the antecedents by a comma.” Webb, 324 Or at 386 (internal quotation marks omitted) (quoting Norman J. [160]*160Singer, 2A Sutherland Statutory Construction § 47.33, 270 (6th ed 1992) (footnotes omitted)).

Here, the legislature followed those grammatical rules by using “such” in the “unless” clause of ORS 137.750 to recapitulate the content of the neighboring expression.

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Cite This Page — Counsel Stack

Bluebook (online)
392 P.3d 792, 284 Or. App. 156, 2017 Ore. App. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berger-orctapp-2017.