State v. Roberts

296 P.3d 603, 255 Or. App. 132, 2013 WL 458275, 2013 Ore. App. LEXIS 141
CourtCourt of Appeals of Oregon
DecidedFebruary 6, 2013
Docket200717429; A148465
StatusPublished
Cited by1 cases

This text of 296 P.3d 603 (State v. Roberts) 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. Roberts, 296 P.3d 603, 255 Or. App. 132, 2013 WL 458275, 2013 Ore. App. LEXIS 141 (Or. Ct. App. 2013).

Opinion

NAKAMOTO, J.

This is a state’s appeal from an order of a circuit court expunging defendant’s conviction for unlawful delivery of marijuana, a misdemeanor. The state asserts that defendant was not entitled to have the conviction set aside because, within the 10-year period preceding his initiation of expunction, defendant had been convicted of a municipal violation (urinating in public). We agree with the state and reverse.

The facts are straightforward and undisputed. On October 9, 2007, defendant pleaded guilty to, and was convicted of, unlawful delivery of marijuana, an offense that had been charged as a Class B felony but was reduced by plea agreement to a misdemeanor. On January 21, 2010, defendant entered a plea of “no contest” to public urination, a violation of the Eugene municipal code, and paid a fine of $100. In a letter to the municipal court, he explained that he was working in Arizona and could not attend a trial in Eugene.

On October 14, 2010, defendant filed his motion to set aside the marijuana conviction. The state opposed the motion, because defendant had been convicted of the public urination violation within the 10-year period preceding the filing of his motion. Without explanation, the trial court rejected the state’s argument that defendant was ineligible to have his conviction set aside as a result of the public urination violation and granted defendant’s motion by order entered April 4, 2011, setting aside defendant’s conviction and ordering that his records be sealed. This appeal followed.

Under ORS 137.225(l)(a),

“[a]t 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 [.]”

Defendant’s misdemeanor conviction for unlawful delivery of marijuana is a conviction for which expunction is authorized under ORS 137.225(5)(e).

[134]*134Nonetheless, pursuant to ORS 137.225(6)(b), the provisions allowing a person to apply for expunction do not apply to

“[a]person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, 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.”

(Emphasis added.) In the state’s view, defendant’s municipal code violation is “any other offense” that precludes expunction.

The state notes that an “offense” is defined in ORS 161.505 as

“conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008.”

Thus, an “offense” includes violations. Under ORS 153.008(l)(c), an offense is a violation if

“[t]he offense is created by an ordinance of a county, city district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.”

It is not disputed that defendant’s municipal offense was a violation as described in ORS 153.008(l)(c). We reject defendant’s policy-based argument that we should not give effect to ORS 137.225(6)(b) as written because it “makes no sense” to prohibit expunction when the defendant commits a relatively insignificant offense but to allow expunction when the defendant commits a serious traffic violation. That is an argument that must be taken up with the legislature.

The remaining question on appeal is whether defendant was “convicted” as that term is used in ORS [135]*135137.225(6)(b) by virtue of the judgment entered following his no contest plea to a municipal violation. Defendant contended at trial and contends on appeal that a no contest plea “would seem not to result in a ‘conviction.’” In support of the trial court’s ruling, defendant cites provisions of ORS chapter 153 that defendant contends, when read together, implicitly require the conclusion that a judgment entered after a no contest plea to a violation is something other than a conviction.

Defendant notes that, under ORS 153.061(3)(b), a defendant may enter a plea of no contest to a violation by “delivering to the court the summons, a check or money order in the amount of the base fine set forth in the summons, and a statement of matters in explanation or mitigation of the violation charged,” and the delivery of the statement “constitutes a waiver of trial and consent to the entry of a judgment forfeiting the base fine ***.” Defendant further points out that when there is a trial or a guilty plea, the court enters a judgment, ORS 153.099(1) and (3), but when a defendant enters a plea of no contest, then the court “shall make a decision,” ORS 153.099(2). Thus, defendant’s view is that his no contest plea to the violation may have resulted in a “judgment forfeiting the base fine,” or maybe a “decision,” but not a “conviction.”1 Defendant reasons:

“In effect, the statutes are designed to create a speedy and fair resolution of the defendant’s alleged offense. That resolution — a judgment forfeiting the base fine — potentially gives both sides a ‘win’: The state or municipality, which believes the defendant likely committed an offense, receives a payment from the defendant that should help deter him from repeating such behavior and warn other transgressors that the law cannot be ignored; the defendant is allowed to cap the money he will pay and to claim that he remains unconvicted; and both sides avoid the expense and trouble of going to trial.”

[136]

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Related

State of Washington v. Kevin Wade Zimmerman
566 P.3d 855 (Court of Appeals of Washington, 2025)

Cite This Page — Counsel Stack

Bluebook (online)
296 P.3d 603, 255 Or. App. 132, 2013 WL 458275, 2013 Ore. App. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roberts-orctapp-2013.