State v. Isbell

38 P.3d 272, 178 Or. App. 523, 2001 Ore. App. LEXIS 1910
CourtCourt of Appeals of Oregon
DecidedDecember 26, 2001
DocketCR9802507; A108589
StatusPublished
Cited by7 cases

This text of 38 P.3d 272 (State v. Isbell) 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. Isbell, 38 P.3d 272, 178 Or. App. 523, 2001 Ore. App. LEXIS 1910 (Or. Ct. App. 2001).

Opinions

[525]*525KISTLER, J.

Defendant was convicted of three counts of second-degree robbery. On appeal, he argues that the court erred in imposing Measure 11 sentences on the last two counts. We affirm.

Defendant was charged with four counts of second-degree robbery. The robberies occurred at four different locations on four different days. The first count was dismissed, and defendant pled guilty to the remaining three counts. If defendant had been sentenced under Measure 11, he would have received a 70-month sentence on each of the three counts. See ORS 137.700(2)(a)(R). Defendant argued below, however, that ORS 137.712(2)(d) authorized the trial court to impose a guidelines sentence on all three counts because, among other things, he did not have a “previous conviction.”1 Defendant had not been convicted of any crime before he committed the three robberies, and he argued that the phrase “previous conviction” refers to a judgment of conviction that had been entered in the register before the trial court imposed sentence on the three counts of robbery.

The state agreed that defendant did not have a “previous conviction” with respect to the first robbery count and that ORS 137.712 authorized the court to impose a guidelines sentence on that count. It reasoned, however, that defendant’s conviction on the first count of robbery constituted a previous conviction that barred him from receiving a guidelines sentence on the remaining two counts. The trial court agreed with the state. It imposed a 39-month sentence on the first count and consecutive 70-month sentences on the remaining two counts.

On appeal, defendant raises the same issue that he raised below. He argues that the trial court erred because it [526]*526misinterpreted the meaning of the phrase “previous conviction.” As noted above, ORS 137.712(2)(d) provides that, when a defendant is convicted of second-degree robbery, he or she can receive a guidelines sentence only if, among other things, “the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.” The statute also defines the phrase “previous conviction.” It means “a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode.” ORS 137.712(6)(b).

Despite that definition, the parties continue to debate what “previous conviction” means. Focusing on the word “entered,” defendant argues that “a conviction * * * entered prior to imposing sentence” means a judgment of conviction entered in the register before the sentence was imposed on the current crime. The state responds that defendant makes too much of a single word. In its view, the term “conviction” cannot be read to mean “judgment.” It follows, the state reasons, that the entry of a conviction is necessarily a separate event from the entry of a judgment of conviction.

The word “conviction” has two generally accepted meanings. Vasquez v. Courtney , 272 Or 477, 480, 537 P2d 536 (1975). As the court explained in Vasquez:

“The first [meaning] refers to a finding of guilt by a plea or verdict. The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court.”

Id. It follows that, under Vasquez, the initial question is whether the legislature intended that the word “conviction” would refer to a finding of guilt or to a judgment of conviction. See State v. Rodarte, 178 Or App 173, 35 P3d 1116 (2001); State v. Allison, 143 Or App 241, 923 P2d 1224, rev den 324 Or 487 (1996). In analyzing that question, we look initially to the text and context of ORS 137.712. PGE v. Bureau of Labor and Industries, 317 Or 606, 611-12, 859 P2d 1143 (1993).

ORS 137.712(6)(a) defines the term “conviction.” It provides that “ ‘[c]onviction’ includes, but is not limited to” a [527]*527juvenile court adjudication and an out-of-state conviction for a crime that has an Oregon counterpart. ORS 137.712(6)(a). The listed examples make clear that the term “conviction” includes adjudications that might not otherwise be viewed as such. Those two examples, however, do not expressly or by implication resolve the question presented by this case, and we note that the legislature specifically provided that they are not exclusive.

In other parts of ORS 137.712, the legislature used the term “conviction” to refer to a finding of guilt. ORS 137.712(l)(a) provides that “when a person is convicted [of certain crimes], the court may impose a [guidelines] sentence” rather than a Measure 11 sentence. Similarly, ORS 137.712(2) provides that a “conviction is subject to” a guidelines sentence if certain criteria are met. See also ORS 137.712(2)(a)-(d) (using conviction in the same manner). More specifically, the subsection that applies here provides that, “[i]f the conviction is for robbery in the second degree,” a guidelines sentence may be imposed if, among other things, the “defendant does not have a previous conviction” for certain specified crimes. ORS 137.712(2)(d).

The legislature repeatedly used the word “conviction” in ORS 137.712 to refer to an event that precedes sentencing; that is, it repeatedly used the word to refer to a finding of guilt. The court has explained that the “use of the same term throughout a statute indicates that the term has the same meaning throughout the statute.” PGE, 317 Or at 611. That rule of construction leads to the conclusion that the term “conviction” means a finding of guilt in both the definition of “previous conviction” and the remainder of the statute. Defendant, however, seeks to avoid the force of that rule. He notes that, in defining the phrase “previous conviction,” the legislature referred to a “conviction that was entered.” He also notes that judgments of conviction are entered in the register.

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Related

State v. Dewhitt
368 P.3d 27 (Court of Appeals of Oregon, 2016)
People v. Guillen
2014 IL App (2d) 131216 (Appellate Court of Illinois, 2015)
State v. Arnold
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State v. Jacob
145 P.3d 212 (Court of Appeals of Oregon, 2006)
State v. Isbell
38 P.3d 272 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
38 P.3d 272, 178 Or. App. 523, 2001 Ore. App. LEXIS 1910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-isbell-orctapp-2001.