Argued and Submitted June 5, 2013
On review from the Court of Appeals. No. CC 100748130, CA A147724[*]
Jeremy C. Rice, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Karen J. Mockrin, Portland, argued the cause and filed the brief for respondent on review.
Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating Attorney for ACLU Foundation of Oregon, Inc. and Kevin Diaz, Legal Director, ACLU Foundation of Oregon, Inc., filed a brief in support of the respondent on review.
Like the defendant in State v. Benoit, __ Or __, __ P.3d __ (2013), also decided today, defendant in this case was arrested and incarcerated on misdemeanor charges that the state later reduced to violations under ORS 161.566(1). The issue is whether the prosecutor's election to treat the offenses as violations precluded defendant from asserting her right to a jury trial and other protections under Article I, section 11, of the Oregon Constitution. Consistently with our decision in Benoit, we conclude that the circuit court erred in rejecting defendant's demand for those protections and that the Court of Appeals correctly reversed defendant's convictions after a trial to the court. Accordingly, although the basis for our decision differs in some respects from that of the Court of Appeals, we affirm the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand the case to the circuit court.
In July 2010, defendant was accused of shoplifting, and she was arrested and briefly incarcerated. Defendant was charged with third-degree theft, a Class C misdemeanor, and attempted first-degree theft, a Class A misdemeanor. At defendant's arraignment, the state elected under ORS 161.566(1) to prosecute the charges as violations rather than misdemeanors. Defendant filed a motion to have the charges tried to a jury and to be proved guilty beyond a reasonable doubt, contending that she was entitled to those protections even though the state was prosecuting the charges as violations. The trial court denied the motion and found defendant guilty on both charges by a preponderance of the evidence. Defendant was fined $300 on each conviction.
Defendant appealed, asserting that the trial court erred in denying her motion because the proceeding retained characteristics that made it a "criminal prosecution" for purposes of Article I, section 11, notwithstanding the prosecutor's election to treat the charges as violations. The state responded that a violation case is not a criminal prosecution and that defendant was not entitled to a jury trial and to a standard of proof requiring evidence of her guilt beyond a reasonable doubt. The Court of Appeals agreed with defendant, and reversed and remanded the case. State v. Fuller, 252 Or.App. 391, 287 P.3d 1263 (2012). The state now seeks review.
ORS 161.566 provides, in part, that, except for misdemeanors created under the vehicle code,
"(1) * * * a prosecuting attorney may elect to treat any misdemeanor as a Class A violation. * * * If no election is made within the time allowed, the case shall proceed as a misdemeanor.
"(2) * * * Notwithstanding ORS 153.018, the maximum fine that a court may impose upon a conviction of a violation under this section may not exceed the amount provided in ORS 161.635 for the class of misdemeanor receiving violation treatment."
As discussed in Benoit, this court determined in Brown v. Multnomah County Dist. Ct., 280 Or 95, 100-02, 570 P.2d 52 (1977), that the legislature may decriminalize minor offenses by enacting a system to prosecute violations, but, in doing so, may not deny an accused the right to a jury trial under Article I, section 11, if the proceeding retains attributes of a "criminal prosecution." Id. at 102-04. In Brown, the court outlined five factors that bear on whether a violation proceeding is so similar to a criminal proceeding that the constitutional right to a jury trial attaches: (1) the type of offense, including, for example, whether the offense was a crime at common law, or whether it involves traditional elements of mens rea or a lower degree of culpability; (2) the penalty incurred, and, specifically, whether there is the potential for imprisonment or a heavy fine; (3) collateral consequences, such as, in Brown, the revocation or suspension of a driver license; (4) punitive significance of the prosecution, that is, whether a judgment is stigmatizing and condemnatory; and (5) the role, if any, of pretrial arrest and detention. Id. at 102-09. The court stated, further, that "[a]ll [of those factors] are relevant, but none is conclusive" in reaching the "ultimate determination" whether a proceeding is a "criminal prosecution" for constitutional purposes. Id. at 102. Applying those factors in Brown, the court concluded that a DUII proceeding was properly characterized as a criminal prosecution. Id. at 109-10.
In deciding this case, the Court of Appeals applied the Brown factors and determined that prosecuting defendant for third-degree theft and attempted first-degree theft "retains too many characteristics of a criminal prosecution to deny defendant the protections of a jury trial and an evidentiary standard of proof of the offenses beyond a reasonable doubt." Fuller, 252 Or.App. at 399. In doing so, the court reasoned that society has long considered theft to be a crime and, therefore, it would be difficult for the public "to discriminate between the significance of a conviction for theft [as] a misdemeanor" versus a violation. Id. at 397-98. The court further noted that, under ORS 161.566 (2009), the penalty for a misdemeanor charged as a violation ...