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State v. Brand

Court of Appeals of Oregon

July 24, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
AUSTIN CALLAHAN BRAND, Defendant-Appellant.

Argued and submitted on January 30, 2013.

Polk County Circuit Court 09P3143 William M. Horner, Judge.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the briefs 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.

DUNCAN, J.

Defendant appeals the trial court's judgment revoking the terms of his probationary supervision and imposing consecutive incarceration sanctions. He argues that, because he committed a single probation violation, the court was required, by OAR 213-012-0040(2), to impose concurrent sanctions. We agree and, therefore, we reverse and remand for further proceedings.

The relevant facts are procedural. On September 24, 2009, pursuant to a plea agreement, defendant pleaded guilty to Counts 1 and 2, unlawful delivery of a controlled substance to a minor, ORS 465.906, and Count 4 of the indictment, sexual abuse in the second degree, ORS 163.425. Counts 1 and 2 were based on incidents in which defendant delivered controlled substances to two different minors. As provided by the plea agreement, the court imposed downward dispositional departure sentences on Counts 1 and 2 and a downward durational departure sentence on Count 4. On Counts 1 and 2, the court imposed 60 months' probation, subject to general and special conditions, including a condition forbidding defendant from consuming alcohol. On Count 4, the court imposed 10 months' incarceration and 36 months' post-prison supervision.

On March 23, 2011, police arrested defendant for an incident in a store; defendant's blood alcohol content was 0.15 percent. The court granted the state's motions for an arrest warrant and an order to show cause why defendant's probation should not be revoked. At the subsequent probation violation hearing, defendant admitted that he had violated the conditions of his probation by consuming alcohol. The court accepted defendant's admission, revoked defendant's probation, and imposed consecutive incarceration sanctions of 27 months on Count 1 and 29 months on Count 2. Defendant objected, contending that the court could not impose consecutive incarceration sanctions because there was "only one violation, which was the use of alcohol." The state made no argument. The court overruled defendant's objection, stating, with respect to the victims of Counts 1 and 2, "They're two different minors; two different girls."

On appeal, defendant renews his argument that the court erred in imposing consecutive incarceration sanctions after finding only one probation violation. Whether a sentencing court exceeded its authority in imposing consecutive incarceration 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).

We begin with an overview of the relevant rule. When an offender is 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 the 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 ...

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