State v. Sparks

439 P.3d 980, 364 Or. 696
CourtOregon Supreme Court
DecidedApril 18, 2019
DocketCC 14CR08738, 140331053; SC S065728
StatusPublished
Cited by1 cases

This text of 439 P.3d 980 (State v. Sparks) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sparks, 439 P.3d 980, 364 Or. 696 (Or. 2019).

Opinion

DUNCAN, J.

*981**698Defendant appealed the trial court's imposition of three consecutive probation revocation sanctions, the Court of Appeals affirmed, and this court allowed defendant's petition for review. On review, defendant argues that, under a provision of the sentencing guidelines, OAR 213-012-0040(2)(b), a trial court must find a separate probation violation for each consecutive probation revocation sanction it imposes.1 Thus, according to defendant, in order for the trial court to impose three consecutive sanctions as it did, it had to find three separate violations.

We need not, and do not, address defendant's argument regarding OAR 213-012-0040(2)(b), because the trial court found 10 separate violations. Specifically, the trial court found one violation of a condition that defendant not use illegal drugs and nine violations of a condition that defendant not contact the victim of his crimes. On review, defendant argues that the trial court erred in finding nine violations of the no-contact condition. According to defendant, the state alleged only a single violation of the no-contact condition and, therefore, failed to provide sufficient notice to support a finding of more than one violation of that condition. For the reasons explained below, we reject defendant's argument that the state's notice was insufficient to support the trial court's findings of multiple violations of the no-contact provision. Therefore, we conclude that, even under defendant's interpretation of OAR 213-012-0040 (2)(b), the trial court could find enough separate violations to support the consecutive sanctions it imposed. Accordingly, we affirm.

We begin with the historical and procedural facts. This appeal involves two criminal cases, which have been consolidated for review. In the first case, defendant was charged with multiple crimes against the victim, TM, with whom he had been in a relationship. Pursuant to a plea agreement, defendant pleaded guilty to one count of felony fourth-degree assault and one count of attempted second-degree **699assault, each constituting domestic violence. The trial court imposed a presumptive 30-month prison term on the felony fourth-degree assault count. The presumptive sentence on the attempted second-degree assault count was 31 to 36 months' imprisonment but, based on a stipulation by the parties, the trial court imposed a downward departure sentence of 60 months' probation.

In the second case, defendant was again charged with multiple crimes involving TM. Defendant pleaded guilty to two counts of tampering with a witness. The presumptive sentence for each of those counts was also 31 to 36 months' imprisonment, but the trial court imposed stipulated downward departure sentences of 60 months' probation on each count.

Shortly after defendant finished serving his prison term on the felony fourth-degree assault, the trial court issued a notice in each of the two cases for defendant to appear for a probation violation hearing. The notices appointed an attorney to represent defendant and directed defendant to contact that attorney. The notices did not specifically allege what conditions of probation defendant had *982violated. Instead, they stated that "a copy of the allegations and discovery will be provided to you through your attorney." As described more fully below, before the probation violation hearing, defendant received a copy of a probation violation report alleging that he had violated certain conditions of his probation.

At the probation violation hearing, the trial court began by recounting the crimes for which defendant was on probation, specifically, attempted second-degree assault in the first case and two counts of tampering with a witness in the second case. The trial court then described the probation violation allegations against defendant:

"The probation violation report from [defendant's probation officer] *** alleges that [defendant] violated his probation for several different-in several different respects.
"First of all, in having contact with [TM], the victim in these cases, in violation of the conditions of probation. Secondly, in failing to abide by the [probation officer's]
**700directions with respect to being within 1,000 feet of [TM's] home, school, work. And lastly, that he used illegal drugs in violation of the conditions of probation.
"So those are the allegations and the history."

As described on the record by the trial court, the probation violation report stated that defendant had violated the condition that he not have contact with TM by sending her letters from prison. The trial court asked defense counsel whether defendant wanted to admit any of the violations. Defense counsel told the trial court that defendant would stipulate that "he did write the letters and send the letters that are before us." The trial court addressed defendant directly, stating that "the violation report alleges seven letters from prison between November 20, 2014 and February 1, 2015," and asking defendant whether he was admitting that he wrote those letters. Defendant confirmed that he was.

Defense counsel also told the trial court that defendant was admitting that he had used methamphetamine. The trial court asked defendant directly whether he was admitting the alleged drug use, and defendant said that he was.

Defendant disputed the allegation that he had failed to abide by his probation officer's direction to not come within 1000 feet of TM's work place. The parties litigated that allegation, and the trial court ultimately concluded that the state had failed to establish a probation violation with respect to that allegation.

TM testified that defendant had sent her nine letters (not just seven) from prison. The state introduced the letters and their envelopes, and they were received into evidence without objection as State's Exhibit 5. Each envelope contained a different postmark date. The letters expressed defendant's hatred of TM and contained implicit and explicit threats that defendant would harm TM and her family.

After the presentation of the evidence, the trial court again asked defense counsel whether defendant was stipulating that "he sent letters to [TM] from prison *** multiple letters from prison and that he used methamphetamine **701after his release from prison." Defense counsel confirmed that defendant was stipulating to those factual allegations. The trial court then stated, "I find, as a matter of fact, based on the stipulations of the defendant, that he wrote multiple letters to [TM] while he was in prison and that he used methamphetamine."

The trial court turned to the parties' legal arguments. Defense counsel argued that defendant could not be sanctioned for sending TM the letters because he had already received a prison sanction for doing so.

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Related

Sparks v. Laney
D. Oregon, 2021

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Bluebook (online)
439 P.3d 980, 364 Or. 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sparks-or-2019.