State v. Donovan

770 P.2d 581, 307 Or. 461, 1989 Ore. LEXIS 23

• Court: Oregon Supreme Court
• Decided: March 7, 1989
• Docket: TC 41356; CA A45417; SC S35449
• Status: Published

Opinions

LINDE, J.

Defendant challenges a condition of probation imposed after his conviction of custodial interference. Having allowed review after the Court of Appeals affirmed the condition without opinion, State v. Donovan, 92 Or App 996, 757 P2d 877 (1988), we now strike the condition as unauthorized by law.

Defendant and his wife, Frances, known as Betsy, were divorced in July 1977 in a Lincoln County proceeding. Betsy was awarded custody of the couple’s children, Gabriel, who was born in 1970, and Celeste, born in 1975, and defendant was allowed visitation rights. In 1980, defendant unsuccessfully moved for a change of custody. In 1981, after the children’s summer visit, defendant did not return them as required but moved with them to an undisclosed location in California.

Defendant was indicted in December 1982 on two counts of custodial interference, ORS 163.245 and 163.257. He was located in California in October 1986, arrested and returned to Oregon for trial. Betsy also had moved to California, and after his arrest, defendant initiated a custody proceeding in a California court.

Defendant eventually pleaded no contest to one count of custodial interference, and the state dismissed the second count. The circuit court suspended imposition of sentence and placed defendant on probation for five years on specified conditions. Condition No. 8, the condition here at issue, provided:

“Defendant shall bring no proceeding for change of custody of GABRIEL DONOVAN and CELESTE DONOVAN without the permission of this Court. It is the Court’s desire that the mediation hearing presently scheduled for August 20, 1987, take place. If mediation is unsuccessful and both parties cannot agree on the issue of custody, defendant shall seek permission of this Court to proceed, and if this Court denies the request, defendant shall move to dismiss the custody proceedings in California. However, this shall not prohibit defendant from contacting Children’s Services Division or its California equivalent to petition for Juvenile Court jurisdiction over the children. Defendant may cooperate and participate fully with any such agency or proceedings, and may request that physical custody of the children be placed with him pursuant to those proceedings.”

Defendant contends that this condition is unauthorized and contrary to various statutory and constitutional provisions. The state defends the condition as proper, but first it argues that there is no appeal from conditions of probation imposed after a plea of no contest. We hold to the contrary.

Appealability is governed by one of two statutes, ORS 138.040 or ORS 138.050.¹ The state maintains that the applicable statute is ORS 138.050, which provides for review of sentences in appeals from a judgment of conviction after a plea of guilty or no contest. ORS 138.050 states that “the appellate court shall only consider the question whether a sentence has been imposed that exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual.” But the section applies only when “a sentence has been imposed.” In this case, the circuit court suspended the imposition of sentence and instead imposed conditions of probation. This does not constitute a sentence. State v. Car-mickle, 307 Or 1, 762 P2d 290 (1988).

The applicable statute, rather, is ORS 138.040, which generally provides for appeals from judgments of conviction. This section also refers to review of sentences exceeding statutory or constitutional limits, but it is not limited to those grounds. ORS 138.040 provides that upon an appeal, “any decision of the court in an intermediate order or proceeding may be reviewed,” and it states that “[a] judgment suspending imposition or execution of sentence shall be deemed a judgment on conviction.” An order imposing a condition of probation before imposition of a sentence therefore is reviewable under ORS 138.040.

Condition No. 8, previously quoted, undertook to govern the terms of defendant’s participation in civil litigation concerning his children, a right of convicted offenders otherwise recognized by statute.² The sentencing judge stated his desire that defendant and his wife go forward with mediation of their custody dispute. He directed defendant not to pursue proceedings for a change of custody without the consent of the criminal court and to dismiss the California custody proceeding if that consent was denied. Although the court’s interest in the custody issue no doubt was well-intentioned, whether these issues should be mediated and how custody should be decided in the children’s best interests are questions for a domestic relations or juvenile court proceeding, not for a criminal sentencing proceeding.³ The sentencing court permitted defendant to file in California a stipulation for joint custody that allows Celeste to choose with which parent to live, but the stipulation does not end the requirement of Condition No. 8 that defendant obtain permission for future legal steps.

The statutes governing probation prescribe conditions generally applicable to every person placed on probation, ORS 137.540(1), and authorize other specified and non-specified special conditions of probation. But such conditions are authorized only “for the protection of the public or reformation of the offender, or both.” ORS 137.540(2).⁴ The purposes of special conditions of probation do not include deterring others, nor may they be used as a substitute form of punishment, both reasons stated by the circuit court.⁵ A condition of probation that “does not promote public safety or rehabilitation is not permitted under the statute.” State v. Martin, 282 Or 583, 588, 580 P2d 536 (1978).

Public safety is not threatened if defendant seeks court action. What led to his conviction is that he took the law into his own hands, not that he misused the judicial system. The public does not need protection from defendant’s recourse to the courts. Nor is barring such recourse a proper means of rehabilitation. That purpose encompasses requiring a convicted offender to abstain from types of conduct shown to have played a role in his past offenses or to take affirmative steps toward developing better patterns of behavior, but it does not give courts open-ended discretion to rearrange an offender’s life. A judge’s belief that rehabilitation begins with admitting one’s guilt would not justify requiring defendant to give up this appeal as a condition of probation, and forbidding civil litigation as a form of rehabilitation is not very different. The court’s rehabilitative and protective purposes might have justified requiring defendant to cooperate in California proceedings and to notify the sentencing court before taking action in such a proceeding so that the court’s concerns could be communicated to the California courts. But the condition went too far when it denied defendant access to the California courts.

The decision of the Court of Appeals is reversed, and the judgment of the circuit court is modified by striking Condition No. 8 of the conditions of probation.

1 ORS 138.040 provides:

“The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(3). Upon an appeal, or cross-appeal, any decision of the court in an intermediate order or proceeding may be reviewed, and any sentence of the court may be reviewed as to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. A judgment suspending imposition or execution of sentence or placing a defendant on probation shall be deemed a judgment on a conviction and shall not be subject to appeal after expiration of the time specified in ORS 138.071 except as may be provided in ORS 138.050 and 138.510 to 138.680. If in the judgment of the appellate court the punishment imposed by the sentence appealed from exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered.”

ORS 138.050 provides:

“A defendant who has pleaded guilty or no contest may take an appeal from a judgment on conviction where it imposes a sentence that exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. If the judgment of conviction is in the circuit court or the district court, the appeal shall be taken to the Court of Appeals; if it is in the justice of the peace court or municipal court or city recorder’s court, the appeal shall be taken to the district court for the county in which such court is located or if there is no district court for the county, to the circuit court for the county. On such appeal, the appellate court shall only consider the question whether a sentence has been imposed that exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. If in the judgment of the appellate court the punishment imposed does exceed the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment which should be administered.”

2 ORS 137.275 provides:

“Except as otherwise provided by law, a person convicted of a felony does not suffer civil death or disability, or sustain loss of civil rights or forfeiture of estate or property, but retains all of the rights of the person, political, civil and otherwise, including, but not limited to, the right to vote, to hold, receive and transfer property, to enter into contracts, including contracts of marriage, and to maintain and defend civil actions, suits or proceedings.”

3 Gabriel now is past his 18th birthday and no longer subject to the custody of either parent.

4 ORS 137.540(2) provides: “In addition to the general conditions, the court may impose special conditions of probation for the protection of the public or reformation of the offender, or both, including, but not limited to, * * *” a list of twelve paragraphs dealing with confinement, substance abuse, therapy, personal associations, and submission to tests and searches.

5 “THE COURT: * * * I am satisfied that it is directly related to the — to the crime and is necessary for its rehabilitative and deterrent effects of this sort of crime with this defendant, that it’s — it’s necessary.

“As I said, that [if] I didn’t feel that I had this authority, I would not consider probation but would consider some form of more substantial incarceration than was — than was ordered in my original sentencing order.”

Tr 18.