State v. Coughlin

311 P.3d 988, 258 Or. App. 882, 2013 WL 5561618, 2013 Ore. App. LEXIS 1210
CourtCourt of Appeals of Oregon
DecidedOctober 9, 2013
DocketC900196CR; A151027
StatusPublished
Cited by4 cases

This text of 311 P.3d 988 (State v. Coughlin) 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. Coughlin, 311 P.3d 988, 258 Or. App. 882, 2013 WL 5561618, 2013 Ore. App. LEXIS 1210 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

ORS 137.225(1) generally describes the circumstances under which individuals who were convicted of certain specified crimes and who have “fully complied with and performed” their sentences may apply to have their convictions set aside. Under subsection (6) of that statute, a person who otherwise would qualify to have his or her conviction set aside is ineligible for that relief if, “within the 10-year period immediately preceding the filing of the motion,” the person was “convicted *** of any other offense, excluding motor vehicle violations.” ORS 137.225(6)(b). This case presents the question whether a person who is found in contempt of court has been “convicted *** of any other offense” for purposes of ORS 137.225(6)(b), thereby becoming ineligible to have a previous criminal conviction set aside under ORS 137.225(1). We conclude that a contempt adjudication does not constitute conviction of an offense for those purposes. Accordingly, we reverse and remand the trial court’s order denying defendant’s motion to set aside her 1990 forgery conviction, which was based on the trial court’s determination that defendant’s 2005 contempt adjudication made her ineligible to have her earlier conviction set aside.

The pertinent facts are undisputed. In 1990, defendant pleaded guilty to one count of forgery. The trial court sentenced defendant to 24 months of probation. According to defendant’s unchallenged assertion in this proceeding, she “successfully completed her probation without incident.”

In 2005, defendant was found to be in contempt of court for violating a restraining order. A computer printout from the Multnomah County Circuit Court reflects the contempt adjudication, labeling it as “Offense Misdemeanor-Contempt of Court/Punitiv[e]” and indicating that defendant had been “[c]onvicted” of violating a restraining order. Defendant was placed on probation and ordered to pay a unitary assessment of $67.

In 2011, defendant moved to have her 1990 forgery conviction set aside, along with the associated records of her [884]*884arrest.1 Defendant averred in a supporting affidavit that she had “no criminal convictions within the past ten (10) years” and that “no criminal cases [were] pending against [her] in any court.” The state opposed defendant’s motion on the ground that the 2005 contempt adjudication rendered her ineligible to have the forgery conviction set aside. The trial court denied defendant’s motion based on its determination that “defendant had a conviction within the ten year period immediately preceding the filing of the motion, and therefore [was] ineligible per ORS 137.225(6)(b).”

On appeal, defendant argues that “the term ‘offense’ used in ORS 137.225” does not include an “adjudication for contempt.” Defendant points to ORS 161.505, which defines “offense” as “either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008.” Contempt is not a crime, defendant argues, because it is neither a felony nor a misdemeanor. See ORS 161.515(2) (“A crime is either a felony or a misdemeanor.”). Moreover, according to defendant, contempt is not a violation because ORS 153.008(l)(b) provides that a violation cannot be punishable by confinement, as contempt may be. Defendant also relies on cases that she describes as holding that “contempt is not a crime.”

In response, the state contends that, “[e]ven though a contempt of court is not a crime, it may still be an offense for purposes of the expunction statute.” The state does not provide any statutory analysis to support that contention. Instead, the state relies exclusively on State v. Thompson, 294 Or 528, 659 P2d 383 (1983), in which the Supreme Court addressed a situation in which a person had been charged both with “criminal contempt”2 and with criminal trespass for having entered a neighbor’s property after having been enjoined from doing so. Id. at 530-31. The question [885]*885presented was whether the state’s pursual of both charges violated ORS 131.515, which provides, in part:

“(1) No person shall be prosecuted twice for the same offense.
“(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”

The court held that, at least for purposes of ORS 131.515, “criminal contempt is an ‘offense.’” Id. at 532-33. “Under the rationale of [Thompson]” the state argues, “a contempt of court should also be considered an offense for purposes of the expunction statute.”

For the reasons set forth below, we find defendant’s statutory analysis more persuasive than the state’s reliance on Thompson, and we conclude that a person does not become ineligible to have a conviction set aside under ORS 137.225 merely because the person was held in contempt during the 10 years preceding his or her motion seeking that relief.

As noted, ORS 137.225(6)(b) provides that a person who otherwise is eligible to have a conviction set aside nonetheless is ineligible if the person has been “convicted, within the 10-year period immediately preceding the filing of the motion * * * of any other offense, excluding motor vehicle violations * * Two words in that statute are particularly significant to our analysis. The first is “convicted”: Only the condition of having been “convicted” can lead to ineligibility under ORS 137.225(6)(b). No statute explicitly defines what “convicted” means for purposes of ORS 137.225. However, other statutes define a “conviction,” or the status of being “convicted,” as relating to having been judged guilty of a crime. See, e.g.,

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Cite This Page — Counsel Stack

Bluebook (online)
311 P.3d 988, 258 Or. App. 882, 2013 WL 5561618, 2013 Ore. App. LEXIS 1210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coughlin-orctapp-2013.