Argued and submitted on February 19, 2013.
Lincoln County Circuit Court 100255 Sheryl Bachart, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jamie K. Contreras, Assistant Attorney General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
Lincoln County jail authorities authorized defendant, an inmate, to spend a day working at the Lincoln County Animal Shelter. Some time after arrival at that facility, he walked away. Later apprehended, he was charged with, and convicted of, escape in the second degree (escape from a "correctional facility") and escape in the third degree (escape from "custody"). On appeal, he argues that neither of those violations occurred; rather, he argues, he failed to return from a "form of temporary release, " a less serious crime. He also argues that the court erred in denying his motion for judgment of acquittal on the charge of escape in the third degree. The state maintains that the conviction for second-degree escape was proper, but concedes that the court should have granted defendant's motion for judgment of acquittal on the charge of escape in the third degree; however, according to the state, the latter error was harmless because the judgment merged the third-degree escape conviction into the second-degree conviction. We reverse and remand.
The facts are undisputed. Defendant was serving a sentence in the Lincoln County jail. As is apparently customary, he was assigned to work at the local animal shelter cleaning kennels and feeding animals. A police officer took defendant and two other inmates to the shelter and then departed, leaving the inmates under the supervision of Stowell, an unarmed civilian employed by the Lincoln County Sheriff's Department as the animal shelter manager. One of Stowell's duties was to periodically check on inmates working there. At around 10:00 a.m., Stowell noticed that defendant was missing. After looking around the shelter for him, Stowell telephoned the jail and reported that defendant was not on the premises. Defendant was subsequently apprehended and charged with escape in the second degree and escape in the third degree. He waived his right to a jury trial and was found guilty of both counts. The court merged the third-degree escape conviction into the second-degree escape conviction and sentenced defendant to 10 months' incarceration and two years of post-prison supervision, plus fines and fees totaling $1, 178.
Defendant's appeal revolves around the escape statutes and cases construing them. ORS 162.155(1) defines escape in the second degree, as relevant to this case, as follows: "A person commits the crime of escape in the second degree if * * * [t]he person escapes from a correctional facility[.]" A "correctional facility, " in turn, is defined in ORS 162.135(2), again as relevant to this case, as "any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order[.]" Further, "an inmate is considered confined within a 'correctional facility' from time of original commitment until lawfully discharged, regardless of his actual presence within the institution." State v. Dillenburg, 49 Or.App. 911, 916, 621 P.2d 1193 (1980) (internal quotation marks omitted). Escape in the second degree is a Class C felony. ORS 162.155(2). "Unauthorized departure, " a Class A misdemeanor, ORS 162.175, is "the failure to return to custody after any form of temporary release * * * from a correctional facility, " ORS 162.135(8). "Temporary release" is not defined by statute or rule.
Defendant does not dispute that the Lincoln County jail is a "correctional facility" or that he left the animal shelter without permission. He argues, rather, that leaving the shelter was not an "escape" because, when he left, he was not actually or constructively in a "correctional facility"; rather, he argues, he was on "temporary release" from such a facility and therefore guilty only of unauthorized departure, ORS 162.175. In support of that argument, he relies primarily on State v. Manley, 326 Or 204, 951 P.2d 686 (1997). In that case, the defendant was in the Benton County jail for a probation violation; his sentence allowed authorities to let him attend an alcohol treatment center in Ontario, Oregon, while serving his time. Id. at 207. Before leaving for Ontario, the defendant was told that failure to return to the jail after completing the program would amount to second-degree escape. Id. Upon discharge, he failed to return; he was later arrested after a traffic stop, and then tried and convicted of second-degree escape. Id. at 207-08. After this court affirmed without opinion, the Supreme Court took up the case to address "whether defendant's failure to return to a county correctional facility as ordered, upon completion of an alcohol treatment program located elsewhere, constitutes the felony offense of escape in the second degree or the misdemeanor offense of unlawful departure." Id. at 206. Unable to answer that question on the basis of the offenses' statutory text, the court turned to contextual statutes and reasoned as follows:
"Other statutes, contextually, help to answer that question, however. ORS 144.410 to 144.525 provide for a 'work release' program. ORS 144.420(1)(d) (1995) provided:
"'The Department of Corrections shall establish and administer a work release program in which a misdemeanant or felon may participate, and if confined, be authorized to leave assigned quarters for the purpose of:
"'* * * * *
"'(d) Participating in alcohol or drug treatment programs.' ...