State v. Richards

370 P.3d 874, 277 Or. App. 128, 2016 Ore. App. LEXIS 355
CourtCourt of Appeals of Oregon
DecidedMarch 23, 2016
Docket120833582; A155895
StatusPublished
Cited by2 cases

This text of 370 P.3d 874 (State v. Richards) 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. Richards, 370 P.3d 874, 277 Or. App. 128, 2016 Ore. App. LEXIS 355 (Or. Ct. App. 2016).

Opinion

DEMUNIZ, S. J.

Defendant appeals from a judgment that revoked his probation and imposed revocation sanctions of 17 months in prison and a three-year post-prison supervision term. On appeal, defendant contends that the trial court lacked authority to revoke his probation, because he had already completed a structured, intermediate post-prison supervision sanction for the same conduct relied on by the court in revoking his probation. For the reasons explained below, we affirm.

The relevant facts are not in dispute. In November 2012, defendant pleaded guilty to one count of first-degree burglary and one count of first-degree theft. The court sentenced defendant to a probation term of three years on each conviction. Later, defendant violated conditions of his probation, and, in March 2013, the trial court continued probation on the burglary conviction and revoked probation on the theft conviction. The court imposed a revocation sanction of 60 days in jail followed by 12 months post-prison supervision on the theft conviction. In May 2013, defendant’s supervising officer alleged that defendant had violated the terms of his post-prison supervision on the theft conviction by failing to contact his probation officer and by failing to notify the officer of his change in residence. The supervising officer sanctioned defendant with three days of jail for those violations of his post-prison supervision. In November 2013, based on that same conduct, the trial court revoked defendant’s probation on the burglary conviction and imposed a revocation sanction of a 17-month term of imprisonment followed by three years of post-prison supervision.

As noted, on appeal defendant argues that the trial court lacked authority to revoke the probation imposed on the burglary conviction based on the same conduct for which defendant had served the three-day jail sanction for violating conditions of post-prison supervision on the theft conviction. Defendant relies on ORS 137.593(3), which provides:

“In no case may the sentencing judge cause a probationer to be brought before the court for a hearing and revoke probation or impose other or additional sanctions [130]*130after the probationer has completed a structured, intermediate sanction imposed by the Department of Corrections or a county community corrections agency pursuant to rules adopted under ORS 137.595.”

Defendant argues that the trial court lacked authority to revoke defendant’s probation on the burglary conviction, because defendant had completed a structured, intermediate sanction for the post-prison supervision violation on the theft conviction, pursuant to “rules adopted under ORS 137.595.” ORS 137.593(3). In support of that argument, defendant refers to OAR 291-058-0045(3)(b). That rule was adopted under ORS 137.595 and provides, in part, that “[a]n administrative sanction or intervention at the agency level cannot be imposed on more than one case at a time and cases cannot be sanctioned separately for individual violations arising from a series of violations.” According to defendant, because the rule does not distinguish between structured, intermediate sanctions imposed for violation of conditions of post-prison supervision and sanctions imposed for violation of probation, the trial court was prohibited from revoking his probation based on the same conduct for which he had already been sanctioned.

The state responds that the text and context of the statute establish unambiguously that ORS 137.593(3) limits the authority of a court to impose a probation revocation sanction when an administrative sanction for the same probation violation has been imposed by the probation supervisory authority. The statute does not apply to limit judicial authority when a sanction has been imposed by a different supervisory authority for violations of conditions of supervision for a different crime. We agree with the state.

As part of our long-established interpretive paradigm, we look first to the plain meaning of the statutory text and context of the provision in question, as well as other related statutes. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Where a statute’s plain meaning is unambiguous, we adopt that meaning to give effect to the legislature’s intent. See Taylor v. Lane County, 213 Or App 633, 639, 162 P3d 356 (2007). Following those tenets of statutory construction, we review the text of ORS [131]*131137.593(3) in the context of ORS 137.595, because, based on the unambiguous text of ORS 137.593(3), no court may-revoke probation if that probationer has already completed a structured, intermediate sanction imposed “pursuant to rules adopted under ORS 137.595.” Whenever possible, we construe statues to be consistent with one another. ORS 174.010 (“[W]here there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”).

We begin with the observation that ORS 137.593(3), on its face, applies to different sanctions for a single probation violation and not to different sanctions for a probation violation for one crime and a post-prison supervision violation for another crime. The statute uses the term “probationer” to refer to the person subjected to a sanction and potentially subject to “other additional sanctions” for a probation violation. Had the legislature intended a broader meaning—to refer to a person who is both a probationer and subject to other supervision—it would have used the term “person” or “offender.” In ORS chapter 144, the legislature used the terms “person” or “offender” to describe someone on post-prison supervision and used the term “violator” to describe an individual who violates a condition of post-prison supervision. See, e.g., ORS 144.106(3) (“An offender may not be confined in a restitution center, work release center or jail for more than 15 days for a violation of conditions of post-prison supervision unless [certain conditions are met].”); ORS 144.106

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Related

State v. Richards
401 P.3d 767 (Oregon Supreme Court, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
370 P.3d 874, 277 Or. App. 128, 2016 Ore. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richards-orctapp-2016.