State v. Hamilton

974 P.2d 245, 158 Or. App. 258, 1999 Ore. App. LEXIS 186

• Court: Court of Appeals of Oregon
• Decided: February 10, 1999
• Docket: 95-0730; CA A92684
• Status: Published

Opinions

EDMONDS, J.

The state appeals from a judgment imposing sentence under the sentencing guidelines on two counts of second-degree robbeiy. ORS 164.405. The sentencing court vacated the original judgment that had imposed the 70-month minimum sentences mandated by Measure 11 and imposed instead 12-month sentences under the guidelines.¹ The state argues that the court had no authority to vacate the original judgment and to resentence defendant at a time when defendant was serving the sentences under the jurisdiction of the Oregon Corrections Division and had an appeal pending before this court. We agree and remand to the trial court.

Defendant was convicted of two counts of second-degree robbery based on crimes that he committed after the effective date of Measure 11. Measure 11, now codified in part as ORS 137.707(4)(a)(R), mandates a minimum sentence of 70 months for second-degree robbery. In November 1995, the court sentenced defendant in accordance with Measure 11, and defendant immediately commenced service of those sentences with the Corrections Division. Thereafter, a written judgment reflecting the sentences was entered. Defendant appealed from that judgment, but, while his appeal was pending, the sentencing court vacated the original judgment and resentenced him in March 1996.² The state appeals from the resulting judgment.

We agree with the state’s argument that the purported modification of the sentences in March 1996 is a legal nullity because the “trial court lacks the authority to modify a sentence once the defendant has started serving the sentence.” State v. Perry, 140 Or App 18, 22, 914 P2d 29 (1996).³ ORS 137.010 et seq. defines the jurisdiction of the trial court to impose sentence and when that jurisdiction ends.⁴ Under ORS 137.320(1),⁵ the jurisdiction of the sentencing court ends when the sheriff delivers the convicted person to the Corrections Division. See State v. Highland, 28 Or App 251, 558 P2d 1298 (1977) (reasoning that once the defendant began serving a sentence, the trial court lost jurisdiction to affect the sentence in any manner). In addition, once defendant appealed under the existing law, the sentencing court lost jurisdiction except for purposes of ORS 138.083.⁶ See State v. Stevens, 134 Or App 1, 894 P2d 1217 (1995); State v. Pinkowsky, 111 Or App 166, 826 P2d 10 (1992). The statutes contemplate resentencing only if the sentencing court reacquires jurisdiction as a result of the vacation of the original judgment by the court that has jurisdiction (e.g., an appellate court, a court in which habeas corpus writ is issued under ORS 34.310 et seq. or a post-conviction relief court under ORS 138.510 et seq.). See State ex rel Gladden v. Kelly, 213 Or 197, 324 P2d 486 (1958).

Consequently, the March 1996 guidelines sentences are legal nullities; that is, they were sentences imposed at a time when the sentencing court did not have jurisdiction over defendant. On remand, the court is to vacate the judgment reflecting those sentences and reinstate the original judgment.⁷

Reversed and remanded for vacation of amended judgment and reinstatement of original judgment.

1 The sentencing court ruled that Measure 11 was unconstitutional. After the sentencing court vacated the Measure 11 sentences, the Supreme Court upheld the constitutionality of Measure 11 on certain grounds in State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den _ US _, 118 S Ct 557, 139 L Ed 2d 399 (1997). We have also rejected challenges against Measure 11 in State v. Ferman-Velasco, 157 Or App 415, 971 P2d 897 (1998); State v. Skelton, 153 Or App 580, 589 nn 8-9, 957 P2d 585, rev den 327 Or 448 (1998); State v. George, 146 Or App 449, 934 P2d 474 (1997); State v. Lawler, 144 Or App 456, 927 P2d 99 (1996), rev den 326 Or 390 (1998), and State v. Parker, 145 Or App 35, 929 P2d 327 (1996), rev den 324 Or 654 (1997).

2 Defendant’s appeal was subsequently dismissed.

3 The concurrence asserts that “[a] trial court’s power to modify a sentence ends when that sentence has been executed by delivering a defendant to the custody of ODOC or a local authority pursuant to a valid sentence.” 158 Or App at 262-63 (emphasis in original). It cites O’Leary, 295 Or 632, and State v. DeCamp, 158 Or App 238, 973 P2d 922 (1999), as support for that proposition. In O’Leary, the defendant was sentenced and placed in the custody of the Corrections Division. He then appealed and was released during the pendency of that appeal. After exhausting his appeal rights, the defendant surrendered to the circuit court for recommitment and moved the trial court to reconsider his sentence. The trial court suspended the sentence and placed the defendant on probation. Thus, the issue in O’Leary was whether the defendant’s appeal and release “operated nunc pro tunc to void delivery to the custody of the Corrections Division” such that “the court retained authority to grant probation.” 295 Or at 635. In DeCamp, the issue was “whether the sentence on the failure to appear conviction was ‘executed’ because [the parties] disagree[d] on which of the [defendant’s] two sentences was to be served consecutive to the other.” 158 Or App at 243 (1999). Thus, because the validity of the sentence was not at issue in O’Leary and DeCamp, those cases do not stand for the proposition that execution of a sentence depends on the delivery of a defendant to ODOC pursuant to a valid sentence.

4 For example, ORS 137.010(6) provides:

“The power of the judge of any court to suspend execution of any part of a sentence or to sentence any person convicted of a crime to probation shall continue until the person is delivered to the custody of the Department of Corrections.”

In State ex rel O’Leary v. Jacobs, 295 Or 632, 637, 669 P2d 1128 (1983), the Supreme Court reasoned that, once the defendant was delivered to the Corrections Division according to ORS 137.320(1), “[h]is sentence was, therefore, executed, and he was * * * within the purview of ORS 137.010(4),” the language of which is similar to what is now codified as ORS 137.010(6).

5 ORS 137.320(1) provides, in part:

“When a judgment includes commitment to the legal and physical custody of the Department of Corrections, the sheriff shall deliver the defendant, together with a copy of the entry of judgment and a statement signed by the sheriff of the number of days the defendant was imprisoned prior to delivery, to the superintendent of the Department of Corrections institution to which the defendant is initially assigned pursuant to ORS 137.124.”

6 Under ORS 138.083, the sentencing court retains authority to correct clerical errors and to modify an erroneous term in the judgment. See Or Laws 1997, ch 852, §§ 5, 7, and 7a.

7 The concurrence would hold that, if the sentencing court believes a sentence to be invalid, albeit incorrectly, it has the inherent authority to set aside its judgment. To the contrary, a trial court’s authority to sentence to the Corrections Division is circumscribed by statute, and it retains no inherent authority to modify a sentence after it loses jurisdiction. State v. Cotton, 240 Or 252, 400 P2d 1022 (1965), and State v. Leathers, 271 Or 236, 531 P2d 901 (1975), relied on by the concurrence are inapposite because they concern county jail sentences and not commitments to the Corrections Division.