State v. Rusen

• Decision Date: 12 May 2022
• Docket Number: CC 17CR12207 (SC S068295)
• Citation: 369 Or. 677,509 P.3d 628
• Parties: STATE of Oregon, Petitioner on Review, v. Jonathan William RUSEN, Respondent on Review.
• Court: Oregon Supreme Court

369 Or. 677

509 P.3d 628

STATE of Oregon, Petitioner on Review,

v.Jonathan William RUSEN, Respondent on Review.

CC 17CR12207 (SC S068295)

Supreme Court of Oregon.

Argued and submitted September 24, 2021

Resubmitted January 25, 2022.

May 12, 2022

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Anne Fujita Munsey, Deputy Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.^**

FLYNN, J.

In the criminal case before us, defendant challenges the trial court's imposition of consecutive terms of incarceration upon revoking defendant's probation. Defendant had been serving the sentence of probation pursuant to a plea agreement and had stipulated that, if the court revoked his probation, the court could impose consecutive terms of incarceration as sanctions. Defendant had reserved the right, however, to argue that any probation revocation sanctions should be run concurrently. The first question this case presents is whether defendant is barred from obtaining appellate review by ORS 138.105(9), which provides that an "appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant." The second question, on the merits, is how to resolve an apparent conflict between ORS 137.123(2), which generally authorizes consecutive sentences for defendants—like this defendant—whose multiple offenses "do not arise from the same continuous and uninterrupted course of conduct," and OAR 213-012-0040(2)(a), a sentencing guideline that restricts the ability of sentencing judges to impose consecutive incarceration sanctions upon revoking probation.

The Court of Appeals concluded that defendant's challenge to the revocation sanction was reviewable and, on the merits, that the trial court lacked authority in this case to impose consecutive terms of incarceration following revocation of defendant's probation. We allowed the state's petition for review and now affirm the decision of the Court of Appeals on both questions.

On the procedural question, we conclude that the legislature did not intend ORS 138.105(9) to bar review of challenges to "part of a sentence" when the parties reserved the right to make competing arguments regarding what the court should decide with respect to that part of the sentence. Accordingly, petitioner's challenge to the court's decision to impose consecutive terms of incarceration is reviewable. On the merits, we conclude that ORS 137.123(2) applies to initial sentencing and, therefore, is compatible with OAR 213-012-0040(2)(a), which applies when a court revokes probation and requires the court to impose concurrent incarceration terms where, as here, probation is revoked based on a single violation. We therefore affirm the decision of the Court of Appeals, reverse the judgment of the trial court, and remand for further proceedings.

I. BACKGROUND

In 2017, defendant pleaded no contest to four counts of second-degree sexual abuse involving the same minor victim. As part of the plea agreement, the state agreed to dismiss six counts charging defendant with other sexual offenses involving the same victim. The plea agreement specified that the four counts to which defendant pleaded guilty were committed on four different dates—i.e. , not "the same continuous and uninterrupted course of conduct," ORS 137.123(2) —and specified the applicable grid block for each offense under the Oregon Sentencing Guidelines (guidelines).¹

Although each of the specified grid blocks carried a presumptive sentence of incarceration that could amount to a total of 122 months if run consecutively, the parties agreed that the state would recommend that the court depart from the presumptive sentences and impose, instead, three years of supervised probation. At the sentencing hearing, defense counsel also advised the court that, "if the Court revokes probation," defendant was "acknowledg[ing] *** that the State could ask for up to 122 months, but [ ] defendant would *** be free to ask that [the sentences] run concurrently." The prosecutor confirmed the agreement, explaining that, in the event of revocation, "[i]t would be open sentencing within those parameters." The court characterized that agreement to mean, "in the event of revocation on the downward departure[,] that the Court could impose consecutive sentences," and the parties confirmed that characterization. The court then followed the parties’ recommendation and sentenced defendant to supervised probation on each count, with the probation terms to be served concurrently. The judgment of conviction included a term memorializing the agreement regarding revocation: "The parties agree that[,] should this probation be revoked, the convictions on each count are eligible for consecutive sentences to be imposed."

The conditions of probation included that defendant have no contact with the victim, except as specified in writing by the court or defendant's probation officer. Less than a year later, however, the state alleged that defendant had violated the terms of his probation by having sexual intercourse with the same victim. Defendant pleaded guilty to a new charge of second-degree sexual abuse and conceded that his contact with the victim had violated the terms of probation. In light of defendant's concession, the probation revocation hearing largely focused on an appropriate sanction.

The state asked the court to impose consecutive terms of incarceration, noting the parties’ agreement that, in the event that defendant's probation were revoked, the court could impose consecutive sentences. Defendant emphasized, however, that he had reserved the right to argue at the time of revocation that the court should not impose consecutive sentences. He characterized the agreement as merely acknowledging that, under certain circumstances, the sentencing guidelines would authorize consecutive probation revocation sanctions, such as, for example, "if more than one term of probationary supervision is revoked for separate supervision violations." OAR 213-012-0040(2)(b). But, because defendant's multiple terms of probationary supervision were revoked for a single supervision violation, defendant argued that the sentencing guidelines required the trial court to impose the probation revocation sanctions concurrently.² See OAR 213-012-0040(2)(a) ("If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.").

The trial court concluded that the parties’ agreement that the court could impose consecutive probation revocation sanctions meant that the court did not need to consider whether the guidelines authorized consecutive sentences under the circumstances. The court then announced that it was revoking defendant's probation on all counts, imposing a term of incarceration for each count, and ordering the incarceration terms to be served consecutively—for a total of 106 months’ incarceration.

Defendant appealed the revocation judgment and assigned error to the trial court's imposition of consecutive terms of incarceration. State v. Rusen , 307 Or. App. 759, 760, 479 P.3d 318 (2020). Although the state contended that the consecutive incarceration terms were the product of "a stipulated sentencing agreement," and thus that ORS 138.105(9) precluded review, the Court of Appeals rejected that argument. Id. at 760-61, 479 P.3d 318. The court reasoned that the parties’ agreement as to the issue of consecutive sentences was not a "stipulated sentencing agreement" because it was not "specific"—rather, it was an agreement that, "upon revocation, the state could argue for consecutive sentences and defendant could argue for concurrent ones." Id . at 761, 479 P.3d 318.

On the merits, the Court of Appeals concluded that, under OAR 213-012-0040(2)(a), the trial court erred in imposing consecutive terms of incarceration as probation revocation sanctions for a single violation of probation. In reaching that result, the court rejected the state's argument that the trial court had authority to impose consecutive sanctions under ORS 137.123(2). The court resolved the apparent conflict between the provisions by holding that ORS 137.123(2) governs a trial court's authority to impose consecutive terms of incarceration as an initial sentence, while OAR 213-012-0040(2) governs the trial court's authority to impose consecutive terms of incarceration as a probation revocation sanction. Id. at 761-62, 479 P.3d 318.

The state petitioned this court for review, which we allowed. State v. Rusen , 368 Or. 168, 486 P.3d 795 (2021).

II. ANALYSIS

The state contends that the decision of the Court of Appeals is wrong for two alternative reasons. First, the state argues that defendant's consecutive incarceration sanctions are the product of "a stipulated sentencing agreement" and, thus, that ORS 138.105(9) makes the sentences unreviewable. Second, the state argues that the trial court had authority to impose the consecutive terms of incarceration under ORS 137.123(2), because defendant's underlying offenses did "not arise from the same continuous and uninterrupted course of conduct," and that OAR 213-012-0040(2) does not limit that authority. We turn first to the issue of reviewability. See State v. Kephart , 320 Or. 433, 435 n. 2, 887 P.2d 774 (1994) (noting that, before reviewing whether the trial court failed to comply with the law in imposing a sentence, this court will "determine whether review is permitted").

A. Bar on Reviewability

1. Framework

The authority of the Court of Appeals...