State v. Newell
| Decision Date | 03 November 2010 |
| Docket Number | 200613140; A138850. |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Richard Andrew NEWELL, Defendant-Appellant. |
Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
Defendant appeals from an amended judgment that revoked his probation and imposed revocation sanctions of imprisonment on his four convictions for second-degree encouraging child sexual abuse. ORS 163.686. On appeal, defendant contends that the trial court erred in imposing the revocation sanctions of imprisonment consecutively to one another without first having made findings in support of consecutive sentences pursuant to ORS 137.123. For the reasons explained below, we affirm.
The relevant facts are not in dispute. In September 2006, defendant pleaded guilty to four counts of encouraging child sexual abuse in the second degree, based on admissions that he was in possession of child pornography. On the first count, the sentencing court classified defendant under grid block 5-F on the sentencing guidelines, which provides for a presumptive probationary sentence of two years, but imposed an upward durational departure sentence of three years' probation; on the second, third, and fourth counts, which were classified under grid blocks 5-C, 5-B, and 5-A, respectively, and which carried presumptive sentences of imprisonment, the court imposed downward dispositional departure sentences of three years' probation on each of those. The court did not make findings in support of consecutive sentences pursuant to ORS 137.123.
In April 2008, the court revoked defendant's probation on all four convictions based on defendant's admission that he had committed five probation violations. On the first conviction, the court imposed a revocation sanction of six months' imprisonment. On the second conviction, the court imposed a term of imprisonment of 12 months, to be served consecutively to the term imposed for the first conviction. On the third conviction, the court imposed a term of imprisonment of 14 months, to be served consecutively to the term imposed on the second conviction. And on the fourth conviction, the court imposed a term of imprisonment of 16 months, to be served consecutively to the term imposed on the third conviction.1 In sum, the court imposed a total period of incarceration of 48 months.
At the probation revocation hearing, defendant argued that, although he had waived a jury when he pleaded guilty to the charges and had stipulated to the violations, under State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), 2 the court could not impose consecutive revocation sanctions because factual findings in support of such sanctions were required by ORS 137.123, and defendant had not waived his right to jury findings in support of revocation sanctions. The court rejected that argument, noting that OAR 213-012-0040(2)(b) provided authority, when a defendant is serving multiple probationary terms and commits multiple supervision violations, for the court to "impose the incarceration sanctions concurrently or consecutively." Thus, the court concluded that findings pursuant to ORS 137.123 were not necessary; the only findings required were the findings of multiple supervision violations to which defendant had, in fact, stipulated.
On appeal, defendant has abandoned his argument concerning Ice, but continues to contend that probation sanctions that involve consecutive terms of incarceration require factual findings made pursuant to ORS 137.123. He asserts that, if the court does not make the required findings under ORS 137.123, the sanctions must be concurrent. In this case, defendant contends, the courtdid not make the necessary findings at the probation revocation proceeding, and defendant did not admit to them when he pleaded guilty to the four offenses. Accordingly, he concludes, the sentencing court could impose only concurrent terms for each conviction upon revocation of probation.
The state does not dispute that the court did not make the findings that would be required for the imposition of consecutive sentences under ORS 137.123. It nevertheless contends for two reasons that the trial court did not err in imposing consecutive sentences without making suchfindings. First, the state contends that the sentencing guideline administrative rule, OAR 213-012-0040(2)(b), provides for the imposition of consecutive sentences upon revocation of probation and makes no mention of any finding requirement. The state acknowledges that, in that respect, the sentencing guideline stands in direct conflict with ORS 137.123. According to the state, because the sentencing guidelines have "the authority of statutory law," the guidelines should prevail over any inconsistency in ORS 137.123 because the guidelines are more recent. Second, the state argues that, in any event, ORS 137.123 does not apply to probation revocation sanctions and, instead, applies to initial sentencing only.
As explained below, we conclude that ORS 137.123 applies when a person is sentenced (or resentenced), but has no application in the context of probation violation proceedings.
ORS 137.123 provides in part:
The statute plainly asserts in subsection (1) that a court may impose consecutive sentences "only in accordance with the provisions of this section" and, in subsection (5), then states that findings are required.
The sentencing guideline on which the state relies, OAR 213-012-0040(2)(b), applies to the imposition of a sentence upon revocation of probation. It provides, in part:
The rule does not require findings before imposing consecutive incarceration sanctions on revocation of probation for multiple supervision violations. The question in this caserequires us to determine how to reconcile the statute and the guideline.
We begin with the state's argument that the guidelines control because they, in effect, supersede any contrary requirement of the statute. The linchpin of the state's argument is its assertion that the sentencing guidelines are themselves statutes. According to the state, that assertion is supported by State v. Langdon, 330 Or. 72, 74, 999 P.2d 1127 (2000), in which the Oregon Supreme Court stated that, "[a]lthough the sentencing guidelines were created as administrative rules, the legislature approved them in 1989, thus giving them the authority of statutory law." That means, thestate contends, that the ordinary rules of statutory construction that pertain to conflicting statutes come into play, and one of those rules is that more recently enacted and particular statutes prevail over older more general statutes that stand in irreconcilable conflict.
The problem with the state's argument is its premise, viz., that the sentencing guidelines are statutes. We considered, and rejected, precisely that argument in State v. Norris, 188 Or.App. 318, 72 P.3d 103, rev. den., 336 Or. 126, 81 P.3d 709 (2003), which the state does not cite. (Indeed, the state's argument in this case is especially odd, given that it is directly contrary to the argument that the state advanced in Norris.)
In Norris, the defendant argued that certain amendments to the sentencing guidelines are unconstitutional because their adoption did not conform with the publication requirements of Article IV, section 22, of the Oregon Constitution, which applies only to the enactment of statutes. The defendant, citing Langdon, contended that, because the sentencing guidelines have the force of statutes, they should be considered as such and, as a result, subject to the publication requirements of Article IV, section 22.
We rejected the argument, explaining:
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