Argued and submitted on January 30, 2013.
Polk County Circuit Court 09P50711, 10P3043 William M. Horner, Judge.
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
Defendant appeals the trial court's probation revocation judgments in two cases: Case Number 09P50711 (A148651) and Case Number 10P3043 (A148650). On appeal, defendant raises a single assignment of error, which relates only to Case Number 10P3043. Specifically, defendant assigns error to the trial court's imposition of consecutive revocation sanctions in that case. He argues that, because the sanctions were based on a single probation violation, OAR 213-012-0040(2) required the court to impose concurrent sanctions. For the reasons explained below, we agree. Accordingly, in Case Number 09P50711, which is not the subject of defendant's assignment of error, we affirm, and in Case Number 10P3043, we reverse and remand for further proceedings.
The relevant facts are procedural. Pursuant to a plea agreement with the district attorney, defendant pleaded guilty to three felony drug offenses (Counts 1, 2, and 4) and one misdemeanor drug offense (Count 6). On each of Counts 1, 2, and 4, the trial court imposed a downward dispositional departure from the presumptive prison sentence and placed defendant on supervised probation for five years. On Count 6, the court sentenced defendant to 120 days in jail.
More than a year later, the trial court issued an order for defendant to show cause why his probation terms on Counts 1, 2, and 4 should not be revoked. At the subsequent show-cause hearing, defendant admitted that he had violated the conditions of his probation terms by using marijuana. Thereafter, the court revoked each of defendant's probation terms and imposed incarceration sanctions. On Count 1, the court imposed 24 months of incarceration. On Count 2, the court imposed 23 months of incarceration, to be served consecutively to Count 1. On Count 4, the court imposed 25 months of incarceration, to be served concurrently with Count 1.
On appeal, defendant argues, as he did in the trial court, that, because he committed only one probation violation, the court could not impose consecutive incarceration sanctions. Therefore, defendant argues, the court erred in making the incarceration sanction on Count 2 consecutive to that on Count 1.
Whether a sentencing court exceeded its authority in imposing consecutive sanctions for probation violations is a question of law, which we review for errors of law. State v. Stokes, 133 Or.App. 355, 357-58, 891 P.2d 13 (1995). A court may revoke an offender's probation "upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity." OAR 213-010-0001. When an offender has been sentenced to multiple terms of post-prison supervision or is serving multiple terms of probationary supervision at the time of a violation, OAR 213-012-0040 governs a court's authority to impose revocation sanctions. That rule provides:
"(1) If the offender has been sentenced to multiple terms of post-prison supervision, the terms of post-prison supervision shall be served as a single term. The maximum sanction for a post-prison supervision violation in such a case shall be limited as provided by OAR 213-011-0004 for a single term of post-prison supervision.
"(2) When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose revocation sanctions for supervision violations as provided by OAR 213-010-0002 for the violation of each separate term of probationary supervision.
"(a) If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the ...