State v. Tucker

343 P.3d 656, 268 Or. App. 723, 2015 Ore. App. LEXIS 119
CourtCourt of Appeals of Oregon
DecidedFebruary 4, 2015
DocketC002356CR; A150756
StatusPublished

This text of 343 P.3d 656 (State v. Tucker) 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. Tucker, 343 P.3d 656, 268 Or. App. 723, 2015 Ore. App. LEXIS 119 (Or. Ct. App. 2015).

Opinion

ARMSTRONG, P. J.

Defendant appeals an order denying his motion to set aside his conviction and records of arrest for public indecency. Defendant contends that the trial court erred in concluding that, under ORS 137.225, he was ineligible to have his conviction set aside because it amounted to a “sex crime,” as defined in ORS 181.805. For the reasons set out below, we affirm.

In July 2000, defendant was convicted of misdemeanor public indecency under ORS 163.465. Eight months after that conviction, in March 2001, defendant was again convicted of public indecency. The crime that led to the second conviction occurred in September 2000, approximately two months after defendant’s first conviction. Because it was his second conviction for public indecency, defendant’s conviction was for a Class C felony. ORS 163.465(2)(b). It also was for a sex crime, as defined in ORS 181.805(5)(t).

In November 2011, defendant’s misdemeanor public-indecency conviction was set aside under ORS 137.225(l)(a). That statute allows a defendant to have a conviction set aside if three years have elapsed since the court pronounced its judgment on the conviction and the defendant has fully complied with the sentence imposed for the conviction. Thereafter, defendant sought to have his felony public-indecency conviction set aside, and the state objected, contending that, because his felony conviction was for a “sex crime,” it was ineligible to be set aside under ORS 137.225. The trial court agreed with the state and denied defendant’s motion, and defendant appealed.

Before addressing the parties’ arguments on appeal, an overview of the pertinent statutory provisions is necessary. ORS 137.225(l)(a) allows a criminal defendant to move for an order setting aside his or her conviction “[a]t any time after the lapse of three years” from the judgment of conviction if (1) the defendant “has fully complied with and performed the sentence of the court,” and (2) the defendant’s conviction falls within ORS 137.225(5). Subsection (5) provides, as pertinent here:

“The provisions of subsection (l)(a) of this section apply to a conviction of:
[725]*725“(b) A Class C felony, except for * * * any sex crime.
“(d) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for:
“(A) Any sex crime [.] ”

If the defendant successfully establishes that he or she is entitled to have the conviction set aside, the court shall enter an appropriate order. “Upon entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted.” ORS 137.225(3).

On appeal, defendant contends that the trial court erred when it concluded that the conviction that he seeks to have set aside was for a sex crime and, therefore, was ineligible to be set aside. He notes that, under ORS 137.225(14), “‘sex crime’ has the meaning given that term in ORS 181.805.” In turn, ORS 181.805(5) provides a list of offenses that qualify as sex crimes, including “[p]ublic indecency or private indecency if the person has a prior conviction for a crime listed in this subsection.” ORS 181.805(5)(t) (emphasis added). Given that framework, defendant argues that, because he is “deemed not to have been previously convicted” of the misdemeanor public-indecency conviction that was set aside, his Class-C felony conviction is no longer a conviction for a “sex crime.” In other words, although defendant’s second public-indecency conviction was a conviction for a sex crime when the court entered the conviction, it ceased to be a conviction for a sex crime after the court set aside defendant’s first public-indecency conviction. Accordingly, he contends that he was entitled to have the second public-indecency conviction set aside as well.

In support of that argument, defendant cites two cases — State v. Blankenship, 129 Or App 87, 877 P2d 674 (1994), and State v. Burke, 109 Or App 7, 818 P2d 511 (1991), rev den, 312 Or 589 (1992) — for the proposition that eligibility for the set-aside remedy in ORS 137.225 is governed by the law that applies at the time that relief is sought, not the law that applied at the time of the conviction. Blankenship and Burke both involved defendants who had been convicted [726]*726of first-degree sexual abuse before 1989. The defendants both moved to have their convictions set aside after 1989. However, in the interim, the legislature had amended ORS 137.225 to exclude certain convictions for child abuse— including first-degree sexual abuse — from that statute’s set-aside remedy.

In both cases, we concluded that the defendants were ineligible to have their convictions set aside, notwithstanding that each defendant would have been eligible for relief under ORS 137.225 as it existed at the time of their convictions. In doing so, we noted that ORS 137.225(8) (1989)1 “unambiguously expresses legislative intent to have ORS 137.225 apply, regardless of the date of conviction.” Burke, 109 Or App at 10 (emphasis in original). Because the context of the statute evinced “the legislature’s determination to bar the setting aside of convictions for child-related sexual abuse in the first, second or third degrees,” Blankenship, 129 Or App at 91, and because both defendants had been convicted of that type of offense, neither was eligible for relief.

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Related

State v. Burke
818 P.2d 511 (Court of Appeals of Oregon, 1991)
State v. Blankenship
877 P.2d 674 (Court of Appeals of Oregon, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
343 P.3d 656, 268 Or. App. 723, 2015 Ore. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tucker-orctapp-2015.