Argued and submitted March 12, 2013
On review from the Court of Appeals.[*] Nos. CC 08040789, CA A144974
Andrew D. Robinson, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Gregory A. Rios, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.[**]
Defendant challenges his conviction for the crime of felon in possession of a firearm, arguing that, when he possessed the firearm in question, he was not a "person who has been convicted of a felony" within the meaning of the felon-in-possession statute, ORS 166.270. Paragraph (3)(a) of that statute provides that a conviction shall not be deemed a felony conviction if, "at the time of judgment, " the court declared the conviction to be a misdemeanor. We interpret that paragraph to refer not only to the original judgment of conviction, but also to subsequent judgments of conviction entered prior to an accused's firearm possession. In this case, we conclude that the court had not declared defendant's conviction to be a misdemeanor in the original or a subsequent judgment of conviction by the time that defendant possessed the firearm in question. Accordingly, we reject defendant's claim of error and affirm his conviction on the felon-in-possession charge.
The following undisputed facts appear in the record. In 2004, defendant was convicted in Marion County Circuit Court of felony possession of a controlled substance and was sentenced to 18 months of supervised probation. The judgment of conviction included a handwritten notation: "If defendant successfully completes probation with no violations, [he] may apply to [the] court for misdemeanor treatment."
When defendant completed his probation early in 2006, he moved the Marion County Circuit Court for "an order reducing the charge in the present case from a felony to a misdemeanor." In an affidavit attached to the motion, defendant explained that he was seeking reduction to a misdemeanor because he thought that would give him a better chance of obtaining employment. The state informed the court that it did not object, and the court, "having reviewed the files and records herein and good cause appearing, " issued an order on March 29, 2006, reducing defendant's felony conviction to a misdemeanor.
Some years later, in 2008, police discovered a handgun in defendant's possession. Defendant subsequently was charged, this time in Linn County Circuit Court, with being a felon in possession of a firearm, ORS 166.270. Before the matter came to trial, defendant moved in Marion County Circuit Court for a judgment "memorializing" that his 2004 drug conviction had been for a misdemeanor. That court issued a judgment stating that "defendant [was] guilty of a misdemeanor * * * and has been since * * * 2004." Later, the court vacated that judgment and entered a different judgment that was worded in terms of granting defendant's motion to reduce his felony conviction to a misdemeanor. The latter judgment, dated January 5, 2009, purported to be "nunc pro tunc" to March 29, 2006, the date of the order reducing the 2004 felony conviction to a misdemeanor.
At trial, defendant moved for a judgment of acquittal on the felon-in-possession charge, arguing that, in light of the January 5, 2009, judgment that purported to retroactively reduce his conviction to a misdemeanor, the state could not establish that, at the time that he possessed the firearm in question, he was a "person who has been convicted of a felony." ORS 166.270(1). Relying on the statutory definition of that phrase at ORS 166.270(3), which excludes circumstances in which "the court declared the conviction to be a misdemeanor at the time of judgment, " defendant argued that he was not a "person who has been convicted of a felony" at the time that he was alleged to have possessed the firearm. The trial court disagreed with defendant's interpretation of ORS 166.270(3) and denied his motion for a judgment of acquittal. The felon-in-possession charge went to the jury, which found defendant guilty.
Defendant appealed, arguing, among other things, that the trial court had erred in denying his motion for a judgment of acquittal. The Court of Appeals affirmed. The court concluded that, when ORS 166.270(3)(a) provides that a "conviction shall not be deemed a conviction of a felony if * * * the court declared the conviction to be a misdemeanor at the time of judgment, " it refers only to declarations made at the time of the original judgment of conviction. Thus, the court reasoned, once a judgment is entered convicting a person of a felony, a later order or judgment reducing that conviction to a misdemeanor cannot alter the person's status as a felon for purposes of the felon-in-possession statute. State v. Stark, 248 Or.App. 573, 580, 273 P.3d 941 (2012).
Before this court, defendant argues that that interpretation of ORS 166.270(3)(a) is incorrect. He contends that the phrase "at the time of judgment" refers to the judgment in effect at the time that the person charged with the crime possessed the firearm. Employing that construction, defendant contends that his 2004 conviction was adjudged to be a misdemeanor conviction on March 29, 2006, before the felon-in- possession issue arose. In that regard, defendant contends that the order issued by the Marion County Circuit Court on that date in fact was an erroneously labeled judgment, which error the same court corrected, retroactively, in its January 5, 2009, "nunc pro tunc" judgment. Thus, this case presents two questions, one pertaining to the proper construction of ORS 166.270(3)(a), and one pertaining to the timing and effect of the March 29, 2006, order and the January 5, 2009, judgment issued by the Marion County Circuit Court. For obvious reasons, the latter question is relevant only if defendant's construction of ORS 166.270(3)(a) is correct.
We approach the first (statutory construction) issue in our usual way, attempting to discern the legislature's intent from statute's text and context and any helpful legislative history. State v. Gaines, 346 Or 160, 171-72, 206 P.3d 1042 (2009). Our starting point is the text of ORS 166.270, which provides, in part:
"(1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person's possession or under the person's custody or control any firearm commits the crime of felon in possession of a firearm.
"* * * * *
"(a) The court declared the conviction to be a misdemeanor at the time of judgment[.]"
(Emphasis added.) The parties' disagreement focuses on the emphasized wording, with the state reading the phrase "the time of judgment" to mean the time of the original judgment of conviction, and defendant reading it to mean the time of the judgment of conviction in effect when the person is found in possession ...