State v. Hutcheson

• Citation: 447 P.2d 92,251 Or. 589
• Parties: The STATE of Oregon, Respondent, v. Frank HUTCHESON, Appellant.
• Decision Date: 20 November 1968
• Court: Oregon Supreme Court

Page 92

447 P.2d 92

251 Or. 589

The STATE of Oregon, Respondent, v. Frank HUTCHESON, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1968.

Reargued Nov. 13, 1968.

Decided Nov. 20, 1968.

Gary D. Babcock, Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, former Public Defender, Salem.

Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed a brief for respondent.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

McALLISTER, Justice.

The defendant, Frank Hutcheson, was convicted in Marion county of the crime of escape from official detention, and sentenced to a year in the Oregon State Correctional Institution (OSCI). He appeals and contends only that venue of his offense was not in Marion county where OSCI is located, but rather in Clackamas county where his 'unlawful departure' ¹ occurred.

Defendant was a prisoner of OSCI serving a three-year sentence. On January 27, 1967, defendant was enrolled in the work release program established pursuant to ORS 144.410 to 144.525, and administered by the Corrections Division of the Oregon State Board of Control. Under the program a person confined in a 'correctional institution may be granted the privilege of leaving secure custody during necessary and reasonable hours' for the purpose Inter alia of working at gainful private employment. The Corrections Division is responsible for the supervision of persons enrolled in the work release program and for their quartering in suitable local facilities. ORS 144.420 and 144.460.

The superintendent of OSCI, pursuant to ORS 421.170, recommended that defendant be enrolled in the work release program by a memorandum reading in part as follows:

'Therefore, approval is requested for said inmate to be taken to the Clackamas County Jail in Oregon City and assigned to the Work Release Program for housing and such treatment as may be indicated in accordance with ORS 144.450 and revised Board of Control procedures.'

The administrator of the Corrections Division, pursuant to ORS 144.450, approved the recomendation as follows:

'Transfer of inmate for the purpose of housing and treatment under the Work Release Program is approved. Please return inmate to the Oregon State Correctional Institution should his status change regarding the Work Release Program. Custody shall remain with the Oregon State Correctional Institution.'

As an enrollee in the work release program defendant was employed in Oregon City by a construction company and quartered in the Clackamas county jail. On February 24, 1967, defendant failed to return to his quarters at the end of his work day. He was at large until March 21, 1967, when he was apprehended and returned to OSCI.

We have held that '(v)enue is a material allegation of the indictment by virtue of Art. I, § 11, of our constitution, which guarantees the defendant a trial 'in the county in which the offense shall have been committed. '"' State v. Cooksey, 242 Or. 250, 251, 409 P.2d 335, 336 (1965); State v. Jones, 240 Or. 129, 130, 400 P.2d 524 (1965), and cases there cited; see, also, State ex rel. Ricco v. Biggs, 198 Or. 413, 428, 255 P.2d 1055, 38 A.L.R.2d 720 (1953).

We held recently, in State v. Gilmore, 236 Or. 349, 355, 388 P.2d 451, 454 (1964), that 'escape from the county farm of a prisoner serving a sentence in the county jail is escape from the jail.' Although that case did not involve venue, it embraced the theory that a prisoner outside the prison walls for a limited purpose, such as a work detail, is still in constructive custody of the penal institution to which he was sentenced. See authorities cited at 236 Or. 354, 355, 388 P.2d 451.

At the time of his escape defendant was in constructive rather than actual detention or custody. The controlling question is whether defendant was constructively in the custody of the superintendent of OSCI. The question is answered in a large measure, if not entirely, by State v. Gilmore, supra, and by the applicable statutes. ORS 144.490(2) provides that a person enrolled in the work release program is considered to be an inmate of the penal institution to which he was sentenced. ORS 144.500(2) provides further that absence of an enrollee from his place of employment or his designated quarters without a reason acceptable to the administrator of the Corrections Division constitutes an escape from official detention.

We think these and other provisions indicate a clear legislative intent to consider a work release enrollee in the constructive custody of the penal institution to which he was sentenced. His enrollment in the program is subject to the rules and regulations promulgated by the administrator of the Corrections Division pursuant to ORS 144.450. The absence of an enrollee from his place of employment or from his designated quarters is not escape from official detention if he has 'a reason that is acceptable to the administrator.' Thus, if an enrollee offers an excuse for his absence he can be prosecuted for escape only if the administrator finds the excuse unacceptable.

When the act establishing the work release program is read in its entirety, it seems clear that the legislature intended that a work release enrollee would remain in the constructive custody of the penal institution to which he had been sentenced. The act specifically so states, and was given that construction by the administrator, who specifically provided that '(c)ustody shall remain with the Oregon State Correctional Institution.'

It is not clear whether ORS 144.490(2) was intended to specifically control venue or to control all administrative problems arising out of the work release program, including venue. It is clear that ORS 144.490(2) is well within the legislative power to regulate venue. We quote a statement of the Supreme Court of Michigan in People v. Richards, 247 Mich. 608, 226 N.W. 651, 653 (1929), as follows:

'The right of an accused to be tried in the jurisdiction where it is alleged he committed crime is ancient and valuable, and should be maintained. But, in case of escape of a prisoner, in confinement under sentence to a state prison, is the mere place of the act to fix the venue, or may the act itself, in its relation to the imprisonment, be declared by law to fix the venue? In order to be guilty of an escape, a prisoner need not break doors or walls; he escapes, if he removes himself from...