State v. Allison

• Decision Date: 28 August 1996
• Citation: 143 Or.App. 241,923 P.2d 1224
• Parties: STATE of Oregon, Respondent, v. Bradley David ALLISON, Appellant. C9407 34404; CA A87094.
• Court: Oregon Court of Appeals

Page 1224

923 P.2d 1224

143 Or.App. 241

STATE of Oregon, Respondent, v. Bradley David ALLISON, Appellant.

C9407 34404; CA A87094.

Court of Appeals of Oregon.

Argued and Submitted Feb. 28, 1996.

Resubmitted in banc July 10, 1996.

Decided Aug. 28, 1996.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

LANDAU, Judge.

ORS 137.635, enacted by the voters in 1988, provides that, when a court sentences a convicted defendant on any of a list of enumerated felonies, and that defendant "has previously been convicted" of any of those felonies, the court must impose a determinate sentence that is not subject to reduction or parole. In this case, defendant was charged with several felonies listed in ORS 137.635, on the basis of crimes committed over the course of several years. After conviction of those charges in a single trial, the trial court imposed sentence on the first of them. On the remaining convictions, the trial court then reasoned that ORS 137.635 was applicable, defendant having "previously been convicted" of one of the enumerated felonies. Defendant appeals, arguing that the trial court erred in applying ORS 137.635. We affirm the convictions and remand for resentencing.

Defendant was charged by a single eight-count indictment with a series of crimes committed between January 1992 and July 1994. Only four of the counts are relevant to this appeal. In chronological order, they are: count 7 (first-degree burglary), count 3 (first-degree burglary), count 4 (first-degree burglary) and count 8 (first-degree robbery). Following a trial to the court, the court determined that defendant was guilty on counts 3, 4, 7 and 8. Before the court's determinations of guilt, defendant did not have a prior conviction for any offense listed in ORS 137.635. Both first-degree burglary and first-degree robbery are, however, listed in that statute.

At the sentencing hearing one month later, the court imposed sentences on each of the four counts. It began with count 7, and, in accordance with the applicable sentencing guidelines, it imposed the presumptive sentence of 36 months probation. At that point, over defendant's objections, the court concluded that defendant had "previously been convicted" of a crime listed in ORS 137.635 and, pursuant to that statute, imposed determinate sentences of 14 months, 16 months and 60 months for defendant's convictions on counts 3, 4 and 8, respectively.

On appeal, defendant argues that the trial court erred in applying ORS 137.635 to any of his convictions, because, at the time of sentencing, he had not "previously been convicted" of any of the offenses listed in the statute. The state asserts that the trial court was correct in doing so, because, at the time defendant was sentenced on counts 3, 4 and 8, he had "previously been convicted" of count 7, which is an offense listed in ORS 137.635. According to the state, a "conviction" occurs "upon the imposition of sentence in open court." Thus, it reasons, once defendant had been sentenced on count 7, as to the remaining counts, he had "previously been convicted." In support of its proposed construction, the state relies on State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), in which the Supreme Court construed a related statute adopted after the enactment of ORS 137.635.

Defendant replies that the state's reading of the statute establishes, at most, the existence of an ambiguity, which justifies examination of the legislative history. That history, defendant contends, conclusively proves that the purpose of the statute was to punish "repeat offenders" who, after having already been found guilty, sentenced and had both matters affirmed on appeal, do not learn from their mistakes and commit additional crimes. In that light, defendant argues, it is clear that the statute's reference to "previously * * * convicted" means convicted prior to the commission of the crimes for which a defendant is currently being sentenced. The state argues that we should not look to the legislative history, because the statute is plain on its face. In any event, it argues, "repeat offenders" are simply people who commit more than one crime.

We review the trial court's decision as a matter of law, to determine whether the court correctly applied the statute. ORS 138.222(4)(a); State v. Graham, 125 Or.App. 516, 519, 865 P.2d 490 (1993).

In interpreting a statute enacted by initiative, we apply standard principles of statutory construction. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559, 871 P.2d 106 (1994). We attempt to ascertain the intention of the voters, looking first to the text of the measure in its context. If that inquiry does not clearly reveal the voters' intention, we also examine the legislative history and, if necessary, other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

The text of the statute, as originally enacted by the voters, provides, in relevant part:

"(1) When, in the case of a felony described in subsection (2) of this section, a court sentences a convicted defendant who has previously been convicted of any felony designated in subsection (2) of this section, the sentence shall not be an indeterminate sentence to which the defendant otherwise would be subject under ORS 137.120, but, unless it imposes a death penalty under ORS 163.105, the court shall impose a determinate sentence, the length of which the court shall determine, to the custody of the Department of Corrections. Any mandatory minimum sentence otherwise provided by law shall apply. The sentence shall not exceed the maximum sentence otherwise provided by law in such cases. The convicted defendant who is subject to this section shall not be eligible for probation. The convicted defendant shall serve the entire sentence imposed by the court and shall not, during the service of such a sentence, be eligible for parole or any form of temporary leave from custody. The person shall not be eligible for any reduction in sentence pursuant to ORS 421.120.

"(2) Felonies to which subsection (1) of this section apply include and are limited to:

" * * * * *

"(h) Burglary in the first degree * * *.

" * * * * *

"(j) Robbery in the first degree * * *."

ORS 137.635 (1991). ¹ The language at issue is the phrase "[w]hen * * * a court sentences a convicted defendant who has previously been convicted" of a crime listed in ORS 137.635(2). More particularly, the question is what the voters intended by the use of the words "previously * * * convicted" in that statute.

The word "conviction" has two generally accepted meanings. As the Supreme Court explained in Vasquez v. Courtney, 272 Or. 477, 480, 537 P.2d 536 (1975):

"The first [meaning] refers to a finding of guilt by a plea or verdict. The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court."

To determine which meaning is applicable to ORS 137.635, we consider the manner in which the term is used in the statute itself. See State v. Smith, 298 Or. 173, 182, 691 P.2d 89 (1984) (concluding that, as used in OEC 609(1), the term "convicted" refers only to a finding of guilt). From the manner in which the term is used in ORS 137.635, it is clear that the term "conviction" refers to the first of the two accepted meanings. Several times, the statute uses the term "convicted defendant" to refer to a defendant who has been found guilty of a listed offense but has not yet been sentenced.

Given the apparent meaning of the term "convicted," we must ascertain the intended meaning of the reference to a convicted defendant who has "previously been convicted" of a crime listed in ORS 137.635(2). The term "previous" is generally understood to mean "going or existing before in time: earlier." Webster's Third New International Dictionary 1798 (unabridged 1976). By itself, that definition seems straightforward enough. The problem is that it establishes that "previous" has meaning only in relation to another event, and the language of the statute provides few clues as to what the voters intended that other event to be. The statute, in other words, says that a convicted defendant who has "previously been convicted" of a listed crime is subject to determinate sentencing, but it does not say "previous" to what event the earlier conviction must have taken place. The statute does not say, for example, that it applies to a convicted defendant who, "previous to the sentencing" or "previous to committing the crime of which defendant has been found guilty" or "previous to" any other specified event, has been convicted of another crime listed in the statute. It says only that it applies when a convicted defendant "has previously been convicted" of a listed crime. Thus, we must determine the prior event to which the voters intended "previously" to refer.

At the outset, it bears emphasis that, in examining the statutory language, we are permitted to rest on a "first level," textual analysis only if the words will permit a single construction and all other possibilities are "wholly implausible." Owens v. MVD, 319 Or. 259, 268, 875 P.2d 463 (1994); Carroll v. Boise Cascade Corp., 138 Or.App. 610, 616, 910 P.2d 1111 (1996). As a result, our initial task is to determine whether the text of the statute permits one, and only one, plausible construction.

So far as we can tell, there are at least three possibilities. First, a defendant who has "previously been convicted" could refer to a defendant who, at any time before the sentencing, has been found guilty of a crime...