Submitted on September 06, 2013.
Washington County Circuit Court C900196CR Suzanne Upton, Judge.
James F. O'Rourke, Jr., filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
ORS 137.225(1) generally describes the circumstances under which individuals who were convicted of certain specified crimes and who have "fully complied with and performed" their sentences may apply to have their convictions set aside. Under subsection (6) of that statute, a person who otherwise would qualify to have his or her conviction set aside is ineligible for that relief if, "within the 10-year period immediately preceding the filing of the motion, " the person was "convicted * * * of any other offense, excluding motor vehicle violations." ORS 137.225(6)(b). This case presents the question whether a person who is found in contempt of court has been "convicted * * * of any other offense" for purposes of ORS 137.225(6)(b), thereby becoming ineligible to have a previous criminal conviction set aside under ORS 137.225(1). We conclude that a contempt adjudication does not constitute conviction of an offense for those purposes. Accordingly, we reverse and remand the trial court's order denying defendant's motion to set aside her 1990 forgery conviction, which was based on the trial court's determination that defendant's 2005 contempt adjudication made her ineligible to have her earlier conviction set aside.
The pertinent facts are undisputed. In 1990, defendant pleaded guilty to one count of forgery. The trial court sentenced defendant to 24 months of probation. According to defendant's unchallenged assertion in this proceeding, she "successfully completed her probation without incident."
In 2005, defendant was found to be in contempt of court for violating a restraining order. A computer printout from the Multnomah County Circuit Court reflects the contempt adjudication, labeling it as "Offense Misdemeanor-Contempt of Court/Punitiv[e]" and indicating that defendant had been "[c]onvicted" of violating a restraining order. Defendant was placed on probation and ordered to pay a unitary assessment of $67.
In 2011, defendant moved to have her 1990 forgery conviction set aside, along with the associated records of her arrest. Defendant averred in a supporting affidavit that she had "no criminal convictions within the past ten (10) years" and that "no criminal cases [were] pending against [her] in any court." The state opposed defendant's motion on the ground that the 2005 contempt adjudication rendered her ineligible to have the forgery conviction set aside. The trial court denied defendant's motion based on its determination that "defendant had a conviction within the ten year period immediately preceding the filing of the motion, and therefore [was] ineligible per ORS 137.225(6)(b)."
On appeal, defendant argues that "the term 'offense' used in ORS 137.225" does not include an "adjudication for contempt." Defendant points to ORS 161.505, which defines "offense" as "either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008." Contempt is not a crime, defendant argues, because it is neither a felony nor a misdemeanor. See ORS 161.515(2) ("A crime is either a felony or a misdemeanor."). Moreover, according to defendant, contempt is not a violation because ORS 153.008(1)(b) provides that a violation cannot be punishable by confinement, as contempt may be. Defendant also relies on cases that she describes as holding that "contempt is not a crime."
In response, the state contends that, "[e]ven though a contempt of court is not a crime, it may still be an offense for purposes of the expunction statute." The state does not provide any statutory analysis to support that contention. Instead, the state relies exclusively on State v. Thompson, 294 Or 528, 659 P.2d 383 (1983), in which the Supreme Court addressed a situation in which a person had been charged both with "criminal contempt" and with criminal trespass for having entered a neighbor's property after having been enjoined from doing so. Id. at 530-31. The question presented was whether the state's pursual of both charges violated ORS 131.515, which provides in part:
"(1) No person shall be prosecuted twice for the same offense.
"(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first ...