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State v. Ashcroft

Court of Appeals of Oregon

December 18, 2013

STATE OF OREGON, Plaintiff-Respondent,
DOUGLAS ALLEN ASHCROFT, Defendant-Appellant.

Argued and submitted on July 31, 2012.

Umatilla County Circuit Court CFH090105 Daniel J. Hill, Judge.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Stephanie Striffler, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.


Defendant, who was convicted of harassment, argues that the trial court erred in denying his motion to dismiss the charge for failure to bring him to trial within 90 days of his request for a timely trial under the inmate speedy-trial statutes, ORS 135.760 to 135.765. As explained below, we conclude that, under the current version of ORS 135.765(2), defendant was not brought to trial within 90 days due to continuances that were authorized by ORS 135.763(2), and, hence, the court was not required to dismiss the case. We therefore affirm.

The facts pertinent to our decision are procedural and are not in dispute. Defendant was arraigned on the harassment charge on June 2, 2009, in the Umatilla County Circuit Court. On June 5, 2009, defendant, who was then an inmate at a state prison, submitted a request pursuant to ORS 135.760 to be tried on the harassment charge within 90 days. The trial initially was set for August 27, 2009. On August 10, 2009, defense counsel informed the court that she would not be ready to proceed to trial on August 27 and she filed a motion to determine defendant's fitness to stand trial. The prosecutor explained that getting defendant evaluated at the Oregon State Hospital would likely take several months, and, at that point, the trial was taken off the docket at defense counsel's request. Status hearings were held on September 21 and October 13, 2009, when further scheduling was discussed. On December 14, 2009, the court received notification from the Oregon State Hospital that defendant was fit to stand trial, and the court subsequently scheduled the trial for March 4, 2010.

On January 21, 2010, defendant filed a pro se motion to dismiss the case and to dismiss his counsel. On February 16 and 18, 2010, a hearing was held. The court noted that the case had originally been scheduled for trial on August 27, within 90 days of defendant's request. Defense counsel stated that she had filed the motion on defendant's fitness to proceed, that defendant had had a "denied evaluation, " and that

"I understand that that was received December 14, so that time from August 10th until December 14th was tolled against defense. And then the way we see it, the time--and restarted.
"But as far as [defendant] would be concerned, June 5th, '09, was when the speedy trial was filed, so minus the 126 days that were tolled against him, he still should have had a trial within 24 days after the 24th [sic: 14th] of December. So that's going to be his position."

Defense counsel then noted that she had moved to withdraw because defendant had asked her to do so and that defendant was proceeding on his own motion. The court allowed counsel to withdraw, and defendant argued his motion to dismiss pro se. The court denied defendant's motion and issued a letter opinion in which it concluded that defendant had consented to the delay between August 10, 2009, and December 14, 2009, and that, "[i]f the time only for the evaluation was excluded from the 90 days then the defendant's 90 days would already be up, that being about 127 days to this hearing date." The court concluded, however, that, under ORS 135.763(2), it had the authority to grant a continuance on its own motion, although it stated that such a period should not be greater than 90 days:

"The court has set the trial within 90 days of the date when the court learned that defendant was fit to proceed. The court so finds good cause and that the time frame is reasonable under the circumstances."

Defendant subsequently entered a conditional guilty plea, reserving his right to appeal the trial court's decision on the speedy-trial issue.

On appeal, defendant reiterates his position that, in order to comply with ORS 135.760 to 135.765, a defendant must be tried within 90 days of the request for trial, excluding defendant's requested continuances. He argues that the effect of a continuance is to "toll" the 90-day period and that days both before and after the continuance count toward the 90-day deadline.[1] In support of that position, defendant points to three cases in which we have referred to "tolling" of the 90-day period described in an earlier version of the statutes. The state responds that the wording of the statute is not susceptible to the interpretation urged by defendant. As explained below, we agree with the state.

In interpreting a statute, we attempt to discern its meaning under the rules of PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines, 346 Or 160, 206 P.3d 1042 (2009). Our goal is to discern the legislative intent behind the statute by examining the text, context, and any helpful legislative history. Id. at 171-72. "Changes in the text of a statute over time are context for interpreting the version at issue in a given case." Montgomery v. City of Dunes City, 236 Or.App. 194, 199, 236 P.3d 750 (2010). In this case, we find it useful to first look at the text of the current statutes, then the text of the previous version of the statutes and our case law interpreting them, as well as the legislature's intention in changing the statutes, before circling back to the current text of the statutes.

ORS 135.760 provides that inmates in the custody of the Department of Corrections against whom there are outstanding charges may give written notice requesting to be brought to trial on the outstanding charges. There is no dispute that defendant provided the requisite notice that he wished to be tried on the charge at issue in this case.

ORS 135.763 provides:

"(1) The district attorney, after receiving a notice requesting trial under ORS 135.760, shall, within 90 days of receipt of the notice, bring the ...

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