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State v. Granberry

Court of Appeals of Oregon

December 18, 2013

STATE OF OREGON, Plaintiff-Appellant,
v.
SHERRY DIANE GRANBERRY, Defendant-Respondent.

Argued and submitted on July 31, 2012

Josephine County Circuit Court, No. 05CR0959 Pat Wolke, Judge.

Jamie Contreras, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

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

ARMSTRONG, P. J.

The state appeals a judgment dismissing a charge against defendant for unlawful possession of a controlled substance. The trial court dismissed the charge pursuant to a conditional-discharge agreement under which defendant had been placed on probation. See generally ORS 475.245.[1] The state sought a court determination that defendant had violated the terms of her probation and to have the court enter a conviction on the drug-possession charge, but the court rejected the state's request on the ground that the state had not sought that relief before defendant's probation had expired. The state assigns error to the dismissal of the charge, and we affirm.

We summarize the facts, which are undisputed. The state charged defendant with a single count of unlawful possession of marijuana, ORS 475.864. Defendant pleaded guilty to the charge in February 2007 pursuant to a conditional-discharge agreement. In accordance with the agreement, the court deferred the proceedings and placed defendant on probation with Josephine County Community Corrections for two years. The terms of defendant's probation required her to pay all of her court-ordered financial obligations, refrain from using or possessing controlled substances without a prescription, and obey all laws. In conformity with ORS 475.245, the court ordered that, on "fulfillment of the terms and conditions of [defendant's] probation, the court shall discharge the defendant and dismiss the proceedings without an adjudication of guilt." (Capitalization altered.)

Defendant's term of probation ended on February 6, 2009, but neither the state nor defendant took action at that time. On March 19, 2009, in an apparent attempt to resolve the proceedings, the trial court forwarded defendant's case register to the state.[2]The following day, the state filed a motion for an order to show cause why the court should not enter a conviction on the unlawful possession charge that was the subject of the conditional-discharge agreement. The state's motion, and an accompanying affidavit, alleged that defendant had failed to comply with the terms of her probation. Specifically, it alleged that she had failed to pay her court-ordered financial obligations and had been convicted in October 2008 of theft and of unlawful possession or use of a prescription drug.

The court conducted a hearing on the show-cause order in August 2010. There, defendant conceded that she had failed to comply with the terms of her probation, but she contended that the court lacked authority to enter a judgment of conviction based on her failure to comply. Defendant argued that, under Oregon's probationary scheme, the state was required to file its show-cause motion--or take other action to establish a violation--before the probationary term expired. Because the state had failed to do that, defendant argued that the court was required to treat defendant as having fulfilled the terms of her probation and, thus, to dismiss the drug-possession charge pursuant to ORS 475.245 and the conditional-discharge agreement.

The state disagreed. It acknowledged that, when a defendant is sentenced to a term of probation, the state cannot initiate probation-violation proceedings after the conclusion of the probationary period. However, it distinguished a sentence of probation, which is imposed in a judgment of conviction, from probation imposed under a conditional-discharge agreement, which defers the proceedings without the entry of a judgment. The state contended that, because there is no judgment in the conditional-discharge context, the trial court retained jurisdiction over defendant--and, consequently, the authority to find defendant in violation of the terms of her probation--until the court entered a judgment of conviction or dismissal. And the state contended that, because defendant had not, in fact, complied with the terms of her probation, she was ineligible for discharge and dismissal.

The trial court agreed with defendant. In a letter opinion, the court explained that ORS 475.245 contemplates "two things that can happen" to a defendant who enters into a conditional-discharge agreement: The defendant can either complete the probationary term successfully, obligating the court to dismiss the charge, or the defendant can violate the terms of probation, allowing the court to "enter an adjudication of guilt and proceed as otherwise provided." ORS 475.245. The court reasoned that "the [s]tate must proceed 'as otherwise provided' for a probation violation, " which includes initiating violation proceedings during the probationary term. Because the state had failed to do that, the court concluded that it "retain[ed] jurisdiction" after the completion of defendant's probationary term "only to dismiss the charge against defendant[ ] and not to initiate probation violation proceedings." The court then entered a judgment dismissing the charge against defendant, and the state appealed.

The parties' arguments on appeal emphasize different parts of ORS 475.245 and, therefore, must be understood in the context of the entire statute.[3] Conceptually, ORS 475.245 can be divided into two parts. The first half--contained in the statute's first sentence--addresses the availability and creation of a conditional-discharge agreement:

"Whenever any person pleads guilty to or is found guilty of possession of a controlled substance * * *, the court, without entering a judgment of guilt and with the consent of the district attorney and the accused, may defer further proceedings and place the person on probation."

ORS 475.245. The second--contained in the statute's second and third sentences-- addresses the termination of a conditional-discharge agreement, due to either violation or fulfillment of the terms of the defendant's probation:

"Upon violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person."

ORS 475.245.

On appeal, both parties direct their arguments toward the second half of ORS 475.245. The state focuses on the final sentence of the statute, contending that the court's authority to dismiss the charges against defendant was conditioned on a showing that defendant had "fulfill[ed] the terms and conditions" of her probation. Under the state's reading, the onus of making that showing, and thereby demonstrating that she is entitled to discharge, rests squarely on defendant. Furthermore, the state contends that the temporal limitation that applies to a court's authority to enter a probation violation for a defendant serving a sentence of probation--viz., the trial court's loss of authority to do that if probation-violation proceedings have not been initiated before the expiration of the defendant's sentence--does not apply in the conditional-discharge context. Thus, it contends, ORS 475.245 did not require the state to take action to terminate the conditional-discharge agreement before the end of defendant's term of probation. Consequently, the state contends that it may seek to establish a probation violation and, if established, the entry of a conviction on the charge that is the subject of a conditional-discharge agreement, at any time until a defendant meets her burden to establish that she is entitled to discharge--whether during, after, or years after a defendant's probationary term.

Defendant, in turn, focuses on the second sentence of ORS 475.245, noting that, although that sentence grants the court authority to enter a judgment of conviction "[u]pon violation of a term or condition of probation, " ORS 475.245 does not specify how the court is to determine whether a violation has occurred. Emphasizing the use of the term "probation" throughout ORS 475.245, defendant contends that, because the legislature provided no other definition of probation in the context of a conditional-discharge agreement, the standard rules and procedures for probation must apply. Defendant contends, consequently, that a proceeding to establish a probation violation must be commenced before the expiration of the probationary term. See, e.g., State v. Miller, 224 Or.App. 642, 645, 199 P.3d 329 (2008) (court lacks authority to revoke probation if probation-violation proceeding is not initiated before expiration of probationary term). Because the state did not initiate such a proceeding against defendant before the expiration of defendant's probationary term, defendant argues that the trial court lacked authority to determine that she had violated her probation and correctly dismissed the charge against her.

As a starting point, we agree with defendant that "probation, " as used in ORS 475.245, is best understood in the context of the statutes and case law governing probation that existed when the legislature enacted ORS 475.245 in 1977 as part of the Uniform Controlled Substances Act, Or Laws 1977, ch 745, § 21. Cf. Mastriano v. Board of Parole, 342 Or 684, 693, 159 P.3d 1151 (2007) ("[W]e generally presume that the legislature enacts statutes in light of existing judicial decisions that have a direct bearing on those statutes."). Three aspects of ORS 475.245 lead us to that conclusion.

First, and primarily, is the legislature's use of the term probation. That term, undefined in ORS 475.245 or the Uniform Controlled Substances Act, evokes the court's well-delineated statutory authority to impose a term of supervised release in lieu of or in addition to incarceration. See generally ORS 137.520 - 137.630; see also State v. Ludwig, 218 Or 483, 492, 344 P.2d 764 (1959) ("Probation is a statutory process * * *."). Thus, we assume that the legislature understood the term to have that well-understood legal meaning. See, e.g., Allen v. County of Jackson County, 340 Or 146, 154-55, 129 P.3d 694 (2006).

Second, the structure of ORS 475.245 supports our conclusion. As noted, conceptually, the statute can be divided in half. The first half sets out, in detail, the creation of a term of probation pursuant to a conditional-discharge agreement; the second half sets out, in detail, the termination of such an agreement. See ___Or App at ___(slip op at 4-5). However, notably absent are any provisions to guide the court or the parties during the term of probation--that is, aside from legislature's decision to employ the term probation. Thus, if the legislature did not intend to import the full features of probation through its use of that term, ORS 475.245 contains a glaring omission--viz., the lack of direction on administering probation that is imposed under the statute. We do not believe that the legislature intended to do that, especially assuming, as we do, that the legislature enacted ORS 475.245 with full awareness of the probation statutes and case law in effect at the time. See, e.g., DeNucci v. Henningsen, 248 Or.App. 59, 74, 273 P.3d 148 (2012) (court assumes that legislature enacts statutes in light of existing judicial decisions relevant to the statutes).

Third, the way in which ORS 475.245 provides for the termination of a conditional-discharge agreement supports the idea that the full procedures and structure of probation apply in the conditional-discharge context. That is because the statute does not contemplate competing, strictly binary outcomes. When a defendant satisfactorily completes a term of probation, the court is obligated to "discharge the person and dismiss the proceedings." However, the converse is not true: "Upon violation of a term or condition of probation, " the court "may enter an adjudication of guilt." ORS 475.245 (emphasis added).

Implicit in that formulation is that the court may also not enter an adjudication of guilt based on a probation violation. The court's discretion in that respect makes sense only if other, alternative features of probation are available to the court. For example, applying the procedures attendant to probation, the court could instead opt to modify the conditions of probation. See ORS 137.540(6) ("Failure to abide by all general and special conditions [of probation] may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions * * *."). Likewise, the term of probation could, "in the discretion of the court, be continued or extended." ORS 137.545(1)(a).

For those reasons, we conclude that the legislature intended probation pursuant to ORS 475.245 to mirror probation under ORS chapter 137.[4] The thrust of the state's argument on appeal is aimed, not at that broad conclusion, but specifically at the requirement that proceedings to establish a probation violation must commence before the probationary term has expired. That requirement is rooted in Ludwig, 218 Or 483. There, the defendant had been sentenced to a two-year term of imprisonment, which was suspended while the defendant was placed on a two-year term of probation.[5] Just before the end of the defendant's probationary term, the trial court issued a bench warrant and an order to show cause why the defendant's probation should not be revoked. The court ultimately revoked the defendant's probation, but the revocation hearing was held after the termination of the defendant's probationary term.

On review, the Supreme Court concluded that the statutes governing probation in Oregon at that time authorized each of the trial court's actions. As relevant here, the court relied on former ORS 137.550 (1957), renumbered as ORS 137.545 (1999), which provided, as relevant:

"At any time during the probation period, the court may issue a warrant and cause a defendant to be arrested for violating any of the conditions of probation. * * * Thereupon the court, after summary hearing, may revoke the probation and suspension of sentence and cause the sentence imposed to be executed * * *."

The court concluded that, because the court had issued the order to show cause and the bench warrant within the defendant's probationary period, the court "had jurisdiction" to conduct the revocation proceedings. Ludwig, 218 Or at 492.

Much like the parties before us, it appears that the court in Ludwig used the terms "jurisdiction" and "authority" loosely. See id. at 488 (former "ORS 137.510[, repealed by Or Laws 1971, c. 743, § 43, ] is the source of the authority and jurisdiction for the court to grant probation"). As we have noted above, ___Or App at ___n 3 (slip op at 4 n 3), the proper inquiry in this case, as it was in Ludwig, is whether the trial court had statutory authority to impose or revoke probation. See State v. O'Neal, 24 Or.App. 423, 427, 545 P.2d 910 (1976) (noting that Oregon has adopted "the general rule that the sentencing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized"). That statutory inquiry is not a jurisdictional one.

Thus, notwithstanding the Supreme Court's occasional use of the term "jurisdiction, " the issue in Ludwig reduced to whether the probation statutes in effect at the time gave the trial court the statutory authority to conduct a probation-violation proceeding after the defendant's term of probation had expired. Building on Ludwig, we addressed in O'Neal whether a trial court has the authority to initiate a probation-violation proceeding after a defendant's term of probation has expired--a question that the court in Ludwig expressly declined to address. Relying on the same set of statutes, we held that

"a court is without authority to revoke probation for a crime committed during the probationary period when revocation proceedings have not been initiated before the probationary period has expired."

24 Or.App. at 427. Stated another way, taken together, Ludwig and O'Neal stand for the proposition that, "unless [a] defendant's probation was extended either by the court or by operation of law beyond [its original term], the court commit[s] error by initiating revocation proceedings * * * and revoking probation at a later time." Miller, 224 Or.App. at 645-46 (emphasis added).[6]

Returning to the state's argument on appeal, we see no basis for the distinction that the state advances between finding a probation violation for a probation imposed as a sentence and doing that for a probation imposed under ORS 475.245. As Ludwig, O'Neal, and Miller demonstrate, a court's authority to initiate probation-violation proceedings is expressly limited to "any time during the probation period." ORS 137.545(2). The salutary effect of that rule is that, where, as here, the state fails to initiate proceedings during the probationary period, it cannot establish a probation violation on which the court can act in the case in which the violation determination is sought.

That brings us, finally, to the state's characterization of the respective obligations of the state, the court, and defendant on the termination of probation under ORS 475.245, which, again, provides:

"Upon violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person."

As noted, the state contends that the court's authority to dismiss a charge against a defendant is conditioned on a showing that the terms of probation have been satisfied and that, unless and until the defendant makes that showing, the court cannot take action. The state does not point to, and we cannot find, that requirement in the text of ORS 475.245. Nor are we inclined to believe that the legislature intended a system in which the trial court is without authority--and the state without obligation--to take any action with respect to a defendant's charge. To the contrary, by its terms, ORS 475.245 requires the court to dismiss the charges against a defendant on the successful completion of the probationary term, which, for these purposes, is the completion of the term without the state having initiated a probation-violation proceeding against the defendant.[7]

Here, defendant's probationary term expired without the state having initiated a probation-violation proceeding against her. Hence, the trial court lacked authority to find defendant in violation of the terms of her probation and, accordingly, the trial court correctly dismissed the drug-possession charge against defendant. Affirmed.


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