State v. Galligan

816 P.2d 601, 312 Or. 35, 1991 Ore. LEXIS 60

Opinions

PETERSON, C. J.

The issue presented is whether an inmate at a correctional facility who is given authorization to leave the facility for work but fails to return to the facility at the appointed time may be charged with the crime of “unauthorized departure.” ORS 162.175.

The defendant was an inmate at a corrections facility, the Multnomah County Restitution Center (MCRC). He was released temporarily from the MCRC on a work-release program but failed to return to the MCRC at the scheduled time. He was convicted of the crime of “unauthorized departure’ ’ under ORS 162.175, a Class A misdemeanor. The Court of Appeals affirmed the conviction from the bench. State v. Galligan, 105 Or App 131, 803 P2d 787 (1990). We affirm the decision of the Court of Appeals and the judgment of the district court.

ORS 162.175(l)(a) states:

“A person commits the crime of unauthorized departure if:

“(a) The person makes an unauthorized departure[.]”

ORS 162.135(7) defines “unauthorized departure” as

“the unauthorized departure of a person confined by court order in a juvenile facility or a state hospital that, because of the nature of the court order, is not a correctional facility as defined in subsection (2) of this section, or the failure to return to custody after any form of temporary release or transitional leave from a correctional facility.” (Emphasis added.)

ORS 162.135(3) provides:

“As used in ORS 162.135 to 162.205, unless the context requires otherwise:

* * * *

“(3) ¹Custody’ means the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but does not include detention in a correctional facility, juvenile facility or a state, hospital.” (Emphasis added.)

The problem arises because ORS 162.135(7) defines “unauthorized departure” as the “failure to return to custody after temporary release* * * from a correctional facility” and ORS 162.135(3) states that “custody” “does not include detention in a correctional facility.” (Emphasis added.) The defendant reasons:

1. An essential element of the crime of “unauthorized departure” is that the defendant “fail[] to return to custody.” ORS 162.135(7) (emphasis added).

2. “Custody * * * does not include detention in a correctional facility.” ORS 162.135(3).

3. The MCRC is a correctional facility.

4. Therefore, he cannot be convicted of “unauthorized departure” for his failure to return to the MCRC.

Before 1989, there was no crime of “unauthorized departure.”¹ An inmate who failed to return to a correctional facility following a grant of temporary leave was chargeable with “escape in the second degree,” a Class C felony. ORS 162.155. In 1987 (and still), ORS 162.155 provided in part:

“(1) A person commits the crime of escape in the second degree if:

* * * *

“(b) Having been convicted or found guilty of a felony, the person escapes from custody imposed as a result thereof; or

‘ ‘ (c) The person escapes from a correctional facility[.] ’ ’

Consistent with the separate treatment in ORS 162.155(l)(b) and (c) of those escaping from “custody” and those escaping from a “correctional facility,” the 1987 definition of “custody” excluded “detention in a correctional facility.” However, the 1987 version of ORS 162.135(4) defined “escape” as including “failure to return to custody after temporary leave * * * from * * * a correctional facility.”

In 1989, the legislature amended ORS chapter 162 to create the crime of “unauthorized departure,” ORS 162.175. Accordingly, the legislature deleted the phrase, ‘ ‘the failure to return to custody after temporary leave * * * [from] a correctional facility,” from the definition of “escape,” ORS 162.135(4) (1987), and amended the definition of “unauthorized departure” to include “the failure to return to custody after any form of temporary release * * * from a correctional facility,” ORS 162.135(7). Or Laws 1989, ch 790, § 53. The legislature did not, however, amend ORS 162.135(3), which continued to exclude “detention in a correctional facility” from the definition of “custody.”

The “definitions” statute concerning escape and related offenses, ORS 162.135, begins with the clause “unless the context otherwise requires.” In order to give effect to all the provisions of ORS 162.135,² and specifically in order to give effect to the last clause of ORS 162.135(7) — “or the failure to return to custody after * * * temporary release or transitional leave from a correctional facility” — the context of ORS 162.135 requires that a definition of “custody” other than the one in ORS 162.135(3) be applied.

When construing a statute, “the intention of the legislature is to be pursued if possible.” ORS 174.020; State v. Carrillo, 311 Or 61, 65, 804 P2d 1161 (1991). In keeping with that rule of construction, this court has stated that a statute should not be construed “so as to ascribe to the legislature the intent to produce an unreasonable or absurd result.” State v. Linthwaite, 295 Or 162, 170, 665 P2d 863 (1983).

The 1989 legislative history clearly demonstrates that to assign the ORS 162.135(3) definition of “custody” to the word “custody” as used in ORS 162.135(7) would void the entire last clause of ORS 162.135(7) and entirely thwart the legislative intent. See Johnson v. Star Machinery Co., 270 Or 694, 704, 530 P2d 53 (1974) (“if the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, the literal interpretation must give way and the court must look beyond the words of the act”).

Testimony before the Senate Judiciary Committee makes it clear that the crime of “unauthorized departure” was directed at those inmates who fail to return after temporary leave from a correctional facility. Testifying on behalf of the Oregon Criminal Justice Council, which introduced the legislation, Bob Durston explained:

“[SB 1073] relates to escapes and unauthorized departures. Section 51 amends ORS 162.135. It narrows the definition of ‘escape’ to exclude failure to return to custody from temporary leave. There’s been a great amount of concern as to an alarming escape rate in Oregon. In fact, the escape from maximum and medium security facilities is very low compared to other states. The walkaway rate, however, is very high, and the Council determined or is recommending that there be a distinction between walkaways and escapes, and that it be reflected in the criminal code. And [SB 1073] is the effort to do that. The walkaway situation would then be added to the definition of unauthorized departure.

“Section 52 [adding the crime of ‘unauthorized departure’] amends ORS 162.175 to then expand the crime of unauthorized departure to reflect the change made to the escape definition and the definition of unauthorized departure.” Tape recording, Senate Judiciary Committee, April 3, 1989, Tape 91, Side B at 285-339. (Sections 51 and 52 of SB 1073 were incorporated into the provisions of HB 2250 as sections 53 and 54, respectively.)

In amending ORS 162.135(7), the legislature arguably overlooked the need to amend ORS 162.135(3). Because the legislative intent is so clear, and because the context of ORS 162.135 requires it, we hold that the word “custody,” as used in ORS 162.135(7), includes detention in a correctional facility.

The dissent asserts that we may not examine the legislative history of ORS 162.135, because ORS 162.135(3) (definition of “custody”) is unambiguous. The dissent undeniably is correct that ORS 162.135(3), viewed alone, is unambiguous. The dissent overlooks, however, that this case concerns another part of the same statute, ORS 162.135(7), which defines the crime of unauthorized departure. When one attempts to reconcile the two sections of the same statute — ORS 162.135(3) and the last clause of ORS 162.135(7) — it is apparent that the statutes, when read together, are in conflict. That creates the ambiguity.

The dissent also states that, “[a]s used in ORS 162.135(3), ‘custody’ means physical restraint in a correctional facility, or some other form of constructive restraint imposed by a correctional facility.” 312 Or at 46. That is incorrect. The first clause of ORS 162.135(3) states that “ ‘[cjustody’ means the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order.” The last clause of ORS 162.135(3) excludes from “custody,” “detention in a correctional facility.” The dissent would punish failure to return from transitional leave or temporary release from a correctional facility as a felony under ORS 162.155(l)(c). That interpretation nullifies the entire last clause of ORS 162.135(7) and judicially abolishes the very crime that the legislature intended to create, the crime of unauthorized departure, a Class A misdemeanor. ORS 162.175.

The interpretation that “custody” in ORS 162.135(7) means something different than “custody” in ORS 162.135(3) avoids the conflict, gives effect to both subsections (3) and (7), accomplishes what the legislature sought to accomplish, and avoids the State v. Pirkey, 203 Or 697, 281 P2d 698 (1955), problem referred to in the dissent’s third to last paragraph.

The Pirkey problem arises only under the dissent’s construction of the statutes. There is no Pirkey problem. Persons violating the second clause of ORS 162.135(7) should be charged with the crime of unauthorized departure. Because the 1989 legislature repealed the felony of ‘ ‘failure to return to custody after temporary leave * * * from a correctional facility,” ORS 162.135(4) (1987), a person so failing to return may not be charged with the crime of second degree escape, a felony, under ORS 162.155(l)(c), as contended by the dissent. The person has not, given the 1989 amendments, escaped from a correctional facility, nor has he or she escaped from actual or constructive restraint. Such persons have failed to return to the correctional facility after temporary release or transitional leave.

The decision of the Court of Appeals is affirmed. The judgment of the district court is affirmed.

Footnotes

1

Before amendment, ORS 162.175 (1987) made it a misdemeanor only to “aid[] another in making or attempting to make an unauthorized departure from a juvenile facility or a state hospital.”

2

ORS 174.010 states:

“In the construction of a statute, * * * where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”