State v. Rodarte

• Decision Date: 21 November 2001
• Citation: 178 Or. 173,178 Or. App. 173,35 P.3d 1116
• Parties: STATE of Oregon, Appellant, v. Jose Alejandro RODARTE, Respondent.
• Court: Oregon Court of Appeals

35 P.3d 1116

178 Or. App. 173

178 Or. 173

STATE of Oregon, Appellant, v. Jose Alejandro RODARTE, Respondent.

CF980340, CF980144; A105240 (Control), A105284

Court of Appeals of Oregon.

Argued and Submitted March 29, 2000.

Decided November 21, 2001.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Andy Simrin, Deputy Public Defender, argued the cause for respondent. With him on the brief was David E. Groom, Public Defender.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

In this consolidated appeal arising out of two charges of felony driving while suspended (FDWS), the state challenges orders excluding the evidence that defendant's driving privileges were suspended at the time in question. The only issue presented is whether ORS 809.410(4) authorizes suspension of a driver's license for a felony vehicular conviction¹ that has been reduced to a misdemeanor pursuant to ORS 161.705(1). The trial court concluded that it does not. We agree, and affirm.

The relevant facts are procedural in nature. Defendant previously pleaded guilty to unauthorized use of a vehicle (UUV), which is a Class C felony. After accepting the plea, the trial court exercised its discretion pursuant to ORS 161.705(1) to enter judgment on the conviction as a misdemeanor. In entering judgment, the trial court also ordered that defendant's driving privileges be suspended for one year. When the Department of Transportation (Department) received notice of the UUV conviction, it entered an administrative order revoking defendant's driving privileges for one year. During the one-year period of suspension, defendant allegedly twice drove a motor vehicle, which resulted in the FDWS charges in these cases.² Before trial, defendant collaterally attacked the validity of the suspension order and, on the basis of that attack, moved to exclude the evidence of it. More specifically, defendant asserted that ORS 809.410(4) does not authorize the suspension of driving privileges based on a felony vehicular conviction when a sentencing court chooses, pursuant to ORS 161.705(1), to reduce the conviction to a misdemeanor.³ The trial court agreed, and granted the motions. Because the issue turns on the meaning of the applicable statutes, we review the trial court's ruling for errors of law, following the interpretative methodology outlined in PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993).

This case, like most cases involving an issue of statutory interpretation, requires us to determine the meaning of a particular word or phrase in a particular statute. But in addition to that, it requires us to assess the interplay between two statutes and the policies that they embody. In particular, we must consider whether ORS 809.410(4), which requires revocation of driving privileges for felony vehicular offenses, applies when a felony is reduced to a misdemeanor pursuant to ORS 161.705(1).

We begin with ORS 809.410(4) and its provisions for revocation by the Department following a felony vehicular offense. It provides, in part:

"Any felony conviction with proof of a material element involving the operation of a motor vehicle constitutes grounds for revocation of driving privileges. The following apply to this subsection:

"(a) Upon receipt of a record of conviction for an offense described in this subsection, the department shall revoke the driving privileges or right to apply for driving privileges." ORS 809.410(4).

Such a revocation is not achieved exclusively through the Department's administrative authority, however. Rather, if revocation or suspension is required under ORS 809.410, the sentencing court also is required to order the revocation or suspension for the required time period "at the time of conviction." ORS 809.240(1)(a).

In many circumstances, the application of ORS 809.410(4) is straightforward. Often, when a defendant pleads to or is found guilty of a felony vehicular offense, the trial court enters judgment on the offense as a felony, either because the offense is not a Class C felony and therefore cannot be reduced to a misdemeanor or because the trial court does not consider misdemeanor treatment appropriate in the particular instance. In those circumstances, the factual determination of guilt, as represented by the plea or verdict, is identical to the legal adjudication, as represented by the judgment of conviction. Thus, no issue arises as to whether ORS 809.410(4) requires revocation in such an instance; it plainly does.

The problem in this case arises, however, because the trial court in this circumstance could and did opt to treat defendant's felony conviction as a misdemeanor pursuant to ORS 161.705. Under that statute, for persons "convicted" of a Class C felony, a trial court has discretion to enter a judgment of conviction for a Class A misdemeanor if the court believes that felony treatment would be "unduly harsh."⁴ Thus, as occurred in this case, a person who is factually guilty of a felony vehicular offense may be legally adjudicated to be guilty of only a misdemeanor offense. The question then becomes whether the legislature, in providing for any vehicular "felony conviction" to be grounds for revocation or suspension, intended that consequence to follow from the factual determination of guilt for such an offense, or from the legal adjudication of guilt, as reflected by the judgment entered in the case. If the factual determination of guilt triggers the revocation, then entry of judgment as a misdemeanor does not avoid that consequence. Conversely, however, if the legislature intended the conviction to be the entry of judgment, then revocation is not authorized when the offense is reduced to a misdemeanor.

The legislature's choice of terms does little to provide an answer. The word "conviction" is often vexing, precisely because it has a number of potential meanings. See generally State v. Dintelman, 112 Or.App. 350, 352, 829 P.2d 719 (1992)

. The two most common meanings are the two we must decide between here: (1) a finding of guilt by jury verdict or plea; and (2) an adjudication of guilt by formal judgment. See Vasquez v. Courtney, 272 Or. 477, 480, 537 P.2d 536 (1975) (citing representative cases); see also In re Sonderen, 303 Or. 129, 134, 734 P.2d 348 (1987) (conviction determined to mean judgment); State v. Smith, 298 Or. 173, 691 P.2d 89 (1984) (conviction determined to mean factual determination of guilt). The statute itself does not define the term, and nothing in the substance of ORS 809.410(4) makes one meaning more likely than the other. Thus, as a matter of plain text, the reference to "felony conviction" plausibly could assume either meaning, rendering it ambiguous.

The parties agree. They therefore turn to context to aid in understanding the legislature's intent. See PGE, 317 Or. at 610-11,

859 P.2d 1143 (a court first looks to text and context in interpreting a statute). Defendant places considerable reliance on subsection (4)(a) of the statute, set out above, which requires the Department to revoke a defendant's driving privileges upon receipt of the "record of conviction." Without offering any analysis or support for the proposition, defendant asserts that the record of conviction is "of course, the judgment." In fact, however, that proposition is not obvious at all. The legislature did not refer to the "record of judgment," as it could have if that is what it meant, and as it has before. See Smith, 298 Or. at 181-82,

691 P.2d 89 (discussing former ORS 45.600, which provided for proof of conviction by "record of the judgment," and holding that the change of reference to "public record" was intended to encompass factual adjudication). Moreover, defendant's argument overlooks ORS 810.370, which expressly describes what records a court is to provide to the Department for vehicle code offenses. The statute specifically directs the court to forward "the record of conviction containing the date of any offense, any arrest and conviction." ORS 810.370(2). In effect, what a court sends to the Department is akin to an abstract of the charge and conviction, and not merely the judgment. For both reasons, the reference to the "record of conviction" in subsection (4)(a) does not help in determining whether conviction means the factual determination of guilt of the charge or the legal judgment entered by the court.

The state points us to a different contextual clue to assist in understanding which meaning to give the term "conviction." Specifically, the state relies on ORS 811.182(3)(c) (1997),⁵ which provides the penalty for driving in violation of a revocation order issued based on a felony vehicular conviction. Under its provisions, driving while suspended or revoked is a felony offense if the revocation or suspension order resulted from "[a]ny crime punishable as a felony with proof of a material element involving the operation of a motor vehicle." ORS 811.182(3)(c) (1997) (emphasis added). The state argues, and we agree, that the two statutes are context for one another because they operate as parallel provisions, with ORS 809.410(4) requiring revocation of driving privileges following a conviction for a felony vehicular offense, and ORS 811.812(3)(c) (1997) penalizing a later violation of the revocation so ordered. The state further argues, with some force, that the use of the term "punishable" rather than "punished" is important, because it suggests that the legislature was concerned with factual guilt of a felony vehicular offense rather than with the entry of a judgment legally adjudicating it as a felony. See Smith, 298 Or. at 181-82,

691 P.2d 89 (use of term "punishable" rather than "punished" contributed to conclusion that legislature did not intend impeachment for prior offenses to be limited to those offenses for...