State v. Jensen

379 P.3d 792, 279 Or. App. 323, 2016 Ore. App. LEXIS 800
CourtYamhill County Circuit Court, Oregon
DecidedJune 29, 2016
DocketCR100079; A157199
StatusPublished

This text of 379 P.3d 792 (State v. Jensen) is published on Counsel Stack Legal Research, covering Yamhill County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jensen, 379 P.3d 792, 279 Or. App. 323, 2016 Ore. App. LEXIS 800 (Or. Super. Ct. 2016).

Opinion

SHORR, J.

Defendant appeals the trial court’s denial of his motion to set aside his record of conviction under ORS 137.22500(a) and (8)(b) (2013)1 for two counts of third-degree rape. For the reasons set forth below, we conclude that ORS 137.225(6)(b), which requires a person convicted of a second criminal offense to wait 10 years before becoming entitled to expunction, applies to a request for expunction under ORS 137.225(8)(b). Therefore, the trial court did not err when it denied defendant’s motion to set aside his convictions, and we affirm.

We begin with a recitation of the applicable law. This appeal involves the relatively complex interplay of at least four different statutory subsections of ORS 137.225, the expunction statute. Not all of those statutory subsections clearly cross-reference each other, even though each has a potential impact on the other. As a result of this complexity, we set out each subsection below to assist in understanding defendant’s argument and the opinion. We later set them out again in the context of defendant’s argument.

ORS 137.225(l)(a) creates the general rule for expunction for certain criminal convictions listed in subsection 5 and provides, in relevant part:

“At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5) of this section by motion may apply to the court where the conviction was entered for entry of an order setting aside the conviction.”

ORS 137.225(5) then lists the categories of convictions eligible for expunction, but excludes sexual crimes. It provides, in relevant part:

“The provisions of subsection (l)(a) of this section apply to a conviction of:
⅜ ⅜ ⅜ *
[325]*325“(b) A Class C felony, except for * * * any sex crime.
«‡‡⅜‡⅜
“(d) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for:
“(A) Any sex crime [.] ”

ORS 137.225(6) provides certain exceptions to eligibility for expunction. It states, in relevant part:

“Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
«⅜‡‡⅜⅜
“(b) A person convicted, within the 10-year period immediately preceding the filing of a motion pursuant to subsection (1) of this section, of any other offense, * * * whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside.”

ORS 137.225(8) was added by the legislature in 2013, and, despite subsection (5), allows for expunction of certain sexual crimes. It provides, in relevant part:

“Notwithstanding subsection (5) of this section, the provisions of subsection (l)(a) of this section apply to a conviction for:
«⅜ ⅜⅜‡*
“(b) A sex crime listed in ORS 181.830(l)(a) if:
“(A) The person has been relieved of the obligation to report as a sex offender pursuant to a court order * **[.]”

We turn next to the facts before returning to the application of the law above. Defendant started dating the victim when they were in high school. At that time, he was an 18-year-old senior and she was a 14-year-old freshman. They had a sexual relationship and started having intercourse when the victim was either 14 or 15 years old. Eventually, the victim’s mother alerted police to the defendant’s sexual relationship with the victim and they stopped dating. Defendant was ultimately charged with 12 counts of sexual offenses. Following plea negotiations, defendant pleaded guilty to two counts of third-degree rape. All parties [326]*326agreed that the victim’s lack of legal consent was solely due to her age. The trial court sentenced defendant to a term of probation and relieved defendant of the obligation to register as a sex offender pursuant to former ORS 181.830(l)(a)(A) (2011), renumbered as ORS 163A.140 (2015).2

On May 6, 2014, more than three years after the entry of judgment, defendant moved to set aside his convictions under ORS 137.225(l)(a) and (8)(b). In determining defendant’s eligibility for expunction, the trial court found that defendant had fully complied with and performed his sentence, that he had shown himself to be a person of good moral character, and that, under the circumstances and considering his behavior from the date of conviction to the motion hearing, the facts would warrant setting aside his convictions. However, the trial court ruled that defendant was ineligible for expunction because he did not meet the general requirement under ORS 137.225(6)(b), which provides that a person seeking to set aside a conviction cannot have another conviction in their criminal history within the 10-year period immediately preceding the conviction that the person seeks to set aside, even if both convictions arose from the same criminal episode. The trial court concluded that this exception applied because defendant had pleaded guilty to two counts of third-degree rape based on two separate acts occurring during his relationship with the same victim. Therefore, the trial court denied defendant’s motion to set aside his convictions.

On appeal, defendant renews his argument that he is eligible to set aside his convictions under ORS 137.225(8)(b), which, as noted, allows for expunction of certain sexual offenses. He asserts that, although he has two convictions in the past 10 years arising from his former relationship with the victim, expunction is not precluded under ORS 137.225

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Related

State v. Gaines
206 P.3d 1042 (Oregon Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
379 P.3d 792, 279 Or. App. 323, 2016 Ore. App. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jensen-orccyamhill-2016.