State v. Donathan

383 P.3d 946, 281 Or. App. 781, 2016 Ore. App. LEXIS 1327
CourtCourt of Appeals of Oregon
DecidedOctober 26, 2016
Docket10CR0319; A157858
StatusPublished
Cited by2 cases

This text of 383 P.3d 946 (State v. Donathan) 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. Donathan, 383 P.3d 946, 281 Or. App. 781, 2016 Ore. App. LEXIS 1327 (Or. Ct. App. 2016).

Opinion

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for felony driving under the influence of intoxicants (DUII), ORS 813.010(5), raising five assignments of error. We write to address only defendant’s first and second assignments, which, in essence, challenge the denial of his motion for a judgment of acquittal on the DUII charge.1 We reject the other three assignments of error without written discussion. Defendant contends in his first and second assignments that the trial court erred in construing the term “convicted” in the felony DUII statute, ORS 813.010(5),2 and thereby erred in denying his acquittal motion. We conclude that the court did not err and, accordingly, affirm.

The relevant facts are undisputed. Defendant was charged and convicted under ORS 813.010(5) of felony DUII. ORS 813.010(5) makes DUII a felony when an individual “has *** been convicted of’ three DUII offenses in the 10 years before the individual commits the charged DUII. The state presented evidence at trial that defendant had three prior DUII convictions. Defendant did not dispute two of the predicate convictions, but he did challenge the sufficiency of the evidence on the third. To prove the third offense, the state introduced evidence of a DUII charge from California, which showed that defendant had pleaded no contest to the charge. The California court had accepted defendant’s plea [783]*783but had suspended the imposition of judgment and sentence and had placed defendant on probation with a requirement that he serve 75 days in jail as a condition of probation.

Defendant contended that the California DUII evidence was legally insufficient to prove a predicate DUII conviction because the evidence did not establish that defendant had had a judgment of conviction entered against him in the California case. The trial court rejected defendant’s argument and convicted defendant of felony DUII.

On appeal, defendant renews his argument that the evidence of the California DUII was insufficient to prove a predicate DUII conviction under ORS 813.010(5). Defendant contends that the term “convicted” in ORS 813.010(5) means a judgment of conviction, and, because the court did not enter a judgment in the California case, defendant’s California DUII offense was not a qualifying conviction. The state responds that “convicted” for purposes of ORS 813.010(5) means a finding of guilt, and, because the California court accepted defendant’s no-contest plea and imposed probation based on the plea, evidence of the California DUII was sufficient to establish a qualifying conviction. We agree with the state.

The meaning of “convicted” in ORS 813.010(5) is a question of statutory construction that we review for legal error. See, e.g., State v. Spainhower, 251 Or App 25, 27, 283 P3d 361 (2012). As noted in Vasquez v. Courtney, 272 Or 477, 479-80, 537 P2d 536 (1975), and as relevant here, “convicted” has two recognized meanings. One means “a finding of guilt by a plea or verdict.” Id. at 480. “The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt.” Id. In Vasquez, the court analyzed former ORS 137.240 (1973), repealed by Oregon Laws 1975, chapter 781, section 10, which provided that “[c]onviction of a felony *** [sjuspends all the civil and political rights of the person so convicted.” The court held that, because the statute deprived people of political and civil rights as a consequence of criminal convictions, the more formal meaning of “convicted” applied to that statute. Vasquez, 272 Or at 480-81. In contrast, the court noted that most courts construe “convicted” to mean a finding of guilt when the term is used in [784]*784a statute that imposes punitive or criminal sanctions. Id. at 480 n 2.

Our recent decision in State v. Turntine, 265 Or App 323, 336 P3d 513 (2014), rev den, 356 Or 690 (2015), is consistent with Vasquez. There, we construed the meaning of “convicted” in the fourth-degree felony assault statute, ORS 163.160(3)(a) (2013),3 which provided that an assault was a felony if the defendant “has previously been convicted of assaulting the same victim.” The defendant had previously pleaded guilty to assaulting the victim in Turntine but had entered a deferred-sentencing program. He contended that “convicted” in ORS 163.160(3)(a) (2013) meant only a formal, final judgment of conviction, and, because the imposition of his sentence had been suspended in the previous assault case, no judgment existed. We disagreed with the defendant’s construction of the statute. Relying on Vasquez — and in the absence of any countervailing legislative history — we concluded that, “[w]hen the statute involves the imposition of a criminal sanction, ‘convicted’ includes a finding of guilt * * * even if a formal judgment of conviction has not yet been entered.” Turntine, 265 Or App at 327. In contrast, when the purpose of the statute is to deny a right or privilege to a person based on a criminal conviction, the legislature intends the more formal meaning — viz., a judgment of conviction. Id. at 325 (citing Vasquez, 272 Or at 480-81). Because ORS 163.160(3)(a) (2013) involved the imposition of a criminal sanction, the finding of guilt on the defendant’s prior assault of the victim constituted a qualifying conviction for purposes of the fourth-degree felony assault statute even though no judgment had been entered on the conviction.

Notwithstanding Vasquez and Turntine, defendant contends that a construction of ORS 813.010(5) that treats a finding of guilt as a qualifying DUII conviction conflicts with [785]*785the DUII diversion statutes. Under those statutes, a defendant must plead guilty or no contest as part of the diversion process, see ORS 813.200(4)(a), yet the plea does not lead to a predicate conviction for purposes of ORS 813.010

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Related

State v. Heaton
483 P.3d 1209 (Court of Appeals of Oregon, 2021)
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432 P.3d 1204 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 946, 281 Or. App. 781, 2016 Ore. App. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donathan-orctapp-2016.