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State v. Granberry

Court of Appeals of Oregon

December 18, 2013

STATE OF OREGON, Plaintiff-Appellant,
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.


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 ...

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