State v. Larson

• Decision Date: 09 September 2021
• Docket Number: A171615
• Citation: 497 P.3d 818,314 Or.App. 309
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Mark William LARSON II, aka Mark W. Larson, aka Mark W. Lawson, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 309

497 P.3d 818

STATE of Oregon, Plaintiff-Respondent,

v.Mark William LARSON II, aka Mark W. Larson, aka Mark W. Lawson, Defendant-Appellant.

A171615

Court of Appeals of Oregon.

Argued and submitted July 23, 2021.

September 9, 2021

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. On the opening brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services.

Weston Koyama, Assistant Attorney General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Kamins, Judge, and Kistler, Senior Judge.

JAMES, P. J.

Defendant appeals a judgment of conviction and sentence for one count of driving under the influence of intoxicants (DUII), driving while revoked, reckless driving, and refusal to take a test for intoxicants. The trial court executed 90 days of the DUII sentence but suspended execution of the remaining jail sentences on all three convictions. The trial court also ordered that, if defendant later violated probation and probation was revoked on all three sentences, then one of the sentences would run consecutively to one of the others. On appeal, defendant argues that the not-yet-executed sentences violate ORS 137.123, which generally bars consecutive sentences except under certain circumstances. We agree and remand for resentencing.

We begin by noting that, although the issue here concerns sentences to be imposed upon a potential future probation violation, we disagree with the state that the issue is nonjusticiable because it is not ripe.

ORS 137.010(3) provides that, "[e]xcept when a person is convicted of a felony," a court "may suspend the imposition or execution of any part of a sentence for any period of not more than five years." ORS 137.010(4) provides that "[i]f the court suspends the imposition or execution of a part of a sentence for an offense other than a felony," then the court "may also impose and execute a sentence of probation on the defendant for a definite or indefinite period of not more than five years."

Accordingly, if a defendant violates misdemeanor probation, the trial court "that imposed probation, after summary hearing, may revoke the probation" and "[i]f the execution of some other part of the sentence has been suspended, the court shall cause the rest of the sentence to be executed." ORS 137.545(5)(a)(A) (emphasis added). The statute is mandatory. See, e.g. , State v. Rudnick , 268 Or. App. 125, 129-31, 341 P.3d 211 (2014) (a trial court that imposes but suspends the execution of a misdemeanor sentence, places a defendant on probation, and later revokes probation must execute the previously imposed sentence without amendment).

Because ORS 137.010(3) is nondiscretionary, the time for defendant to challenge the legality of the consecutive sentences, even though a probation violation may never occur, is now. State v. Burns , 259 Or. App. 410, 417, 314 P.3d 288 (2013), recons. den. and appeal dismissed , 261 Or. App. 113, 323 P.3d 275 (2014).

Turning to the merits, we recently reversed the imposition of consecutive sentences for DUII and driving while suspended in State v. Porter , 313 Or. App. 565, 494 P.3d 988(2021). There, w...