State v. Parkerson
| Docket Number | SC S069918 |
| Decision Date | 21 December 2023 |
| Citation | 371 Or. 716 |
| Parties | STATE OF OREGON, Respondent on Review, v. WILLIAM JACK PARKERSON, Petitioner on Review. |
| Court | Oregon Supreme Court |
1
371 Or. 716
STATE OF OREGON, Respondent on Review,
v.
WILLIAM JACK PARKERSON, Petitioner on Review.
SC S069918
Supreme Court of Oregon, En Banc
December 21, 2023
Argued and submitted September 19, 2023
On review from the Court of Appeals. (CC 16CR67985) (CA A166232) [*]
Stephanie Hortsch, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
Philip Thoennes, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
James, J., concurred and fled an opinion, in which Masih, J., joined.
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for resentencing.
[371 Or. 717]
[371 Or. 718] BUSHONG, J.
Defendant was convicted of assault in the first degree and sentenced to a term of imprisonment under Oregon's dangerous offender statutes. He challenges that sentence, contending that (1) the trial court violated ORS 161.735 when it sentenced him as a dangerous offender without reviewing new presentence investigation (PSI) and psychological evaluation reports that had been prepared specifically for this case; and (2) the determinate part of his sentence-that is, the part that he must serve before he can be released to post-prison supervision[1]-exceeds the maximum sentence allowed by ORS 161.605 and OAR 213-008-0003(2).
The Court of Appeals rejected both arguments, State v. Parkerson, 319 Or.App. 477, 511 P.3d 25 (2022), and we allowed review to address these important issues of statutory interpretation. We agree with the Court of Appeals that the determinate part of defendant's sentence did not exceed the statutory maximum. But we conclude that the trial court erred in sentencing defendant as a dangerous offender using old PSI and psychological evaluation reports, because the statute required the court to consider new reports prepared for this case. Accordingly, we reverse and remand for resentencing.
I. BACKGROUND
A. Historical Facts
There are two separate criminal proceedings relevant to this case. First, defendant was convicted of attempted aggravated murder and first-degree assault with a firearm for shooting a sheriffs deputy ("the shooting case"). State v. Parkerson, 310 Or.App. 271, 273, 484 P.3d 356 (2021), rev den, 369 Or. 505 (2022) (affirming those convictions). The state sought a dangerous offender sentence in that case, and the trial court ordered a psychological evaluation and PSI
[371 Or. 719] pursuant to ORS 161.735. Defendant participated in the psychological evaluation but not the PSI. Ultimately, the court concluded that defendant was a dangerous offender and sentenced him accordingly. Defendant's convictions in the shooting case were affirmed on appeal, and that dangerous offender sentence is not before us.
Second, several months after his conviction in the shooting case, defendant was indicted on a charge of first-degree assault based on an earlier incident in which he attacked the victim with a knife. A jury convicted defendant of that charge. The state again requested, and the court again imposed, a dangerous offender sentence. That sentence is before us on review.
B. Sentencing Proceedings
After the state requested a dangerous offender sentence in the present case, the trial court ordered a PSI and a psychological evaluation. Defendant declined to participate in either process. The PSI and psychological evaluation ordered by the court were never done, and, consequently, the court did not receive or consider PSI and psychological evaluation reports prepared for this case. The court proceeded with sentencing, considering testimony offered at the hearing and redacted versions of the psychological evaluation and PSI reports prepared for defendant's sentencing in the shooting case. The redactions removed defendant's express statements in an attempt to comply with ORS 161.735(4), which precludes using the defendant's statements made in connection with a dangerous offender PSI and psychological evaluation "in any other criminal proceeding."
Dr. Phillips, the psychologist who had prepared the previous evaluation, testified that, despite defendant's lack of participation in a second psychological evaluation, she could make a diagnosis "'solely based upon the records if the records are comprehensive enough.'" Parkerson, 319 Or.App. at 483. She stated that her initial evaluation of defendant had included his self-report, but she removed that material and based her subsequent evaluation solely upon the discovery, the Department of Corrections (DOC) records, and her rescoring of the psychological tests-without defendant's
[371 Or. 720] self-report. She also considered the information about defendant's prior attempted murder and assault convictions in the shooting case, and the information about his conviction in the current case. Based on that material, Phillips stated in a short cover letter and testified at the hearing that it was her opinion that defendant met '"the diagnostic criteria for antisocial personality disorder'"-one of the requirements for dangerous offender sentencing under ORS 161.725-but she did not submit a full written report explaining her evaluation. Id.
The state also offered the earlier PSI report from the shooting case and the testimony of Edson, who had prepared it. Edson testified that, although he did not prepare a new PSI for this case, he could have drafted a new PSI without defendant's participation by using "proxy data"-a reference to the offender's age at the time of the charged offense, his number of prior arrests, and his age at the time of his first arrest. Id.
Defendant objected to the procedures employed in his dangerous offender sentencing, arguing that ORS 161.735 required the court to consider a new psychological evaluation and a new PSI. Defendant further argued that the state's attempt to comply with ORS 161.735(4) by redacting his statements from the previous reports was insufficient because the court was prohibited from using a psychological evaluation drawn, in part, from defendant's previous interviews and other self-reported information, even if the statements themselves were redacted. The state responded that its experts should be able to offer opinions based on information that was properly admissible, excluding any statements or self-reported information by defendant in the shooting case.
The trial court overruled defendant's objections. With respect to the psychological evaluation, the court reasoned as follows:
"[A]lthough a new psychological evaluation was ordered, the Defendant refused to participate in one. The psychological evaluation that was done before not as to [defendant's] statements but the other 1,800 pages of discovery that [the state] talked about is identical to the information that
[371 Or. 721] would essentially be used for the new evaluation, there's no substantive changes. It is the very exact same information that would be used to make the new report, minus [defendant's] statements. The Court does find that because this is a new evaluation and [defendant] chose not to participate, those statements cannot be used and will not be used in this new evaluation and cannot be considered by the Court or in the doctor's opinion should she testify as to one."
The court applied the same reasoning to the PSI report and sentenced defendant as a dangerous offender. The court made the findings required by ORS 161.725 (not challenged here) and sentenced defendant to a 30-year indeterminate sentence-the maximum indeterminate sentence allowed by ORS 161.725-with a 260-month determinate term that defendant must serve before release to post-prison supervision. Defendant appealed.
C. Court of Appeals Decision
The Court of Appeals affirmed the judgment of conviction and sentence, rejecting defendant's challenge to the trial court's use of the PSI report and psychological evaluation from the shooting case to sentence defendant as a dangerous offender in this case. Relying on State v. Odoms, 117 Or.App. 1, 844 P.2d 217 (1992), rev den, 316 Or. 529 (1993),[2]the court concluded that, "in the absence of defendant's willingness to cooperate with a new evaluation, there was nothing in ORS 161.735(1) that prohibited the court from receiving the redacted psychological evaluation and the previous PSI that had been prepared less than one year before." Parkerson, 319 Or.App. at 486. The Court of Appeals also rejected defendant's challenge to the trial court's decision to impose a 260-month determinate part of the 30-year dangerous offender sentence, concluding that the sentence "was
[371 Or. 722] within the court's discretion under the applicable statutes." Id. at 479. Defendant sought review, which we allowed, in part.[3]
II. DISCUSSION
We review a defendant's challenge to a trial court's interpretation of the applicable statutes in sentencing the defendant as a dangerous offender for errors of law. See State v. Thompson, 328 Or. 248, 256-57, 971 P.2d 879 (1999) (trial court's interpretation of a statute is reviewed for legal error). When interpreting a statute, we attempt to discern the intent of the legislature that enacted it. ORS 174.020; see also State v. McDowell, 352 Or. 27, 30, 279 P.3d 198 (2012) (noting that "[o]ur task is to discern what the legislature contemplated" in enacting the statute at issue). To determine that intent, we give primary weight to the statutory text in context, with appropriate additional weight accorded to any relevant legislative history. City of Portland v. Bartlett, 369 Or. 606, 610,...
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