State v. Langan

• Decision Date: 22 April 1986
• Citation: 301 Or. 1,718 P.2d 719
• Parties: STATE of Oregon, Respondent on Review, v. John LANGAN, Petitioner on Review. TC 10-80-00383; CA A35228; SC S32380.
• Court: Oregon Supreme Court

Page 719

718 P.2d 719

301 Or. 1

STATE of Oregon, Respondent on Review, v. John LANGAN, Petitioner on Review.

TC 10-80-00383; CA A35228; SC S32380.

Supreme Court of Oregon.

Argued and Submitted March 11, 1986.

Decided April 22, 1986.

Gary K. Jensen, Eugene, argued the cause for petitioner on review.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

LINDE, Justice.

Defendant, who owns a tavern in Eugene, Oregon, was convicted in 1980 of promoting gambling in violation of ORS 167.122, a Class C felony. See State v. Langan, 293 Or. 654, 652 P.2d 800 (1982). In 1984, he moved in the circuit court to have the conviction "set aside" pursuant to ORS 137.225. The court denied the motion, and the Court of Appeals affirmed without opinion.

The relevant text of ORS 137.225 provides:

"(1)(a) At 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 * * * by motion may apply to the court wherein that conviction was entered for entry of an order setting aside the conviction;

" * * *

"(3) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as it deems proper. If the court determines that the circumstances and behavior of the applicant from the date of conviction, * * * to the date of the hearing on the motion warrant setting aside the conviction, * * *, it shall enter an appropriate order * * *." ¹

Defendant submitted an affidavit in which he stated that he had "fully complied with and performed the sentence of the Court," that his "circumstances and behavior since the date of the conviction to the present time have been exemplary," and that he had "conducted the business of the Eldorado Club Tavern without any difficulties with any law enforcement agency." He also submitted affidavits of other persons attesting to his good character.

The state opposed the motion, and a hearing was held before the circuit judge who originally sentenced defendant.

The prosecutor representing the state called defendant as a witness over his objection that this was impermissible in a criminal proceeding. In response to the state's questions, defendant testified that he was licensed by the City of Eugene to permit "socialized gambling" at his tavern, and that he sold his customers decks of cards, which he required them to replace every two hours, at a substantial profit. The prosecutor pressed defendant on the question whether he did not "know that profiting from the sale of decks of cards at card games" was illegal and had been so advised by a police officer, which defendant denied. The only other witness was a police officer called by the prosecutor, who testified that he had told defendant that it was illegal to "sell cards at a profit while using them at a table for play." ² He also testified that defendant was not charged with any offense for selling the cards. Defendant's testimony on that point was that the customers wanted him to furnish the cards rather than have people bring them in, and that he made a profit on anything he sold in his business: "Nobody in business cannot sell anything without making money at it, or they couldn't be in business."

The circuit court denied "expungement" on January 21, 1985, followed by a hearing at which counsel argued several defense motions. ³ On February 20, the court signed the amended order from which defendant appealed. The operative paragraph of the order states:

"The defendant does not meet the statutory qualifications that would otherwise entitle him to an order of expungement. Specifically, the Court finds, although the evidence was in conflict, the defendant's continuance of an activity after being advised according to a police officer's testimony that it was an illegal activity, whether or not it was in fact illegal, is sufficient circumstance and behavior pursuant to ORS 137.225(3) to deny defendant expungement."

The order continues with some general "findings and observations" concerning the difficulty of enforcing the laws against gambling and the incidence of recidivism among gambling offenders. These findings are superfluous and, if they were not surplusage, as the state concedes, they have no evidentiary basis in the record.

Defendant contends that the court erred in letting the prosecutor call him as a witness and in finding that defendant fell short of the "qualifications that would otherwise entitle him to an order of expungement" because he continued "an activity after being advised according to a police officer's testimony that it was an illegal activity, whether or not it was in fact illegal." Defendant also claims error in the court's denying him a supplementary hearing to rebut the officer's testimony.

The circuit court did not err in letting the state call defendant as a witness. A defendant is the movant in seeking to have his conviction set aside under ORS 137.225, and it is his burden to show that he meets the criteria of that statute. Defendant wished to do so purely by affidavits, but he stated no legal basis for resisting the state's demand to dispute the facts and to question him. The point is not whether a proceeding under ORS 137.225 is a "criminal" or a "civil" proceeding, as the parties argued before the circuit court, but whether defendant was "compelled in any criminal prosecution to testify against himself." Or, Const, Art. I, § 12. Although the guarantee refers to compelled testimony "in" a criminal prosecution, it long has been interpreted to apply to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the witness in a criminal prosecution. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924); Counselman v. Hitchcock, 142 U.S. 547, 563-85, 12 S.Ct. 195, 198-206, 35 L.Ed. 1110 (1892). ⁴ The prosecution in this case had been completed when defendant was convicted, and he was immune from further jeopardy for the same offense. Of course, defendant could have declined to answer the prosecutor's questions, but he did not claim that privilege, perhaps thinking it inconsistent with a claim of law-abiding behavior.

Defendant is correct, however, that the circuit court erred in basing its order on a finding that defendant did not accept a police officer's advice that selling playing cards to gamblers was an illegal activity, whether or not it actually was illegal. The state argues that defendant's failure to heed the officer's statement that his conduct "was illegal and that he should stop" showed an attitude of "complete indifference" on the part of one who had been previously convicted, and that the court "could properly rely on this act alone to determine that defendant had failed to 'demonstrate his ability to be a responsible citizen,' " words paraphrased from an opinion of the Court of Appeals rather than from the statute. ⁵ Defendant, in turn, has held to the stance of an honest businessman operating a licensed business within the law; in fact, the hearing was devoted to defendant's criticism of the city's allegedly lenient and inconsistent enforcement practices toward his competitors in the "socialized gambling" business almost as much as to testimony bearing directly on the standards of ORS 137.225. On the issue of disqualification for not heeding the officer's advice, the state's position is untenable. "Responsible citizens" are bound to conform their conduct to the law, not to the views of police officers.

The state also maintains that defendant in fact did engage in unlawful conduct. Perhaps he did, but that is not the stated basis of the order from which he appealed. At the time he signed the January 21 order, the circuit judge apparently was prepared to make such a finding, but the order was changed after further argument. The record is unclear on exactly what occurred at this point, but it appears that the court instructed defendant's counsel to prepare an amended order. Perhaps the arguments made the court less certain that defendant's conduct in fact was unlawful; in any event, the court on February 20 signed the amended order from which defendant then appealed. A finding that a party committed a criminal offense is one that a trial court, not an appellate court, should make in the first instance, and it is not as obvious a finding as the state would have it. At least defendant's argument that as a licensed entrepreneur he could hardly be expected to give merchandise away at his own wholesale cost deserves to be addressed, and the state's position that profiting from sale of playing cards is unlawful does not seem to depend on whether the seller's mark-up is excessive.

The parties have described the circuit court's task under ORS 137.225 as an exercise of "discretion," a term used by the Court of Appeals in State v. Green, 29 Or.App. 337, 340, 563 P.2d 756 (1977). The state's brief contends that "[g]ranting of expunction is entirely discretionary with the court." The description would be acceptable if the legislature in ORS 137.225 had meant to authorize setting aside a conviction as a special dispensation or act of grace, but the legislative record shows otherwise.

ORS 137.225 was first enacted in 1971 as HB 1802. ⁶ The original form of the bill, and of a similar Senate bill, SB 362, repeatedly used the verb "shall" in describing the rights of a defendant who met the bill's criteria to withdraw a previous guilty plea or to have a verdict of guilt set aside by the trial court. However, the legislative committees working on the subject substituted a different version proposed by Judge Richard Unis of the Portland Municipal Court as the basis for their consideration. Judge Unis's draft, in the key operative sentence, would have provided:

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