Submitted on September 27, 2013.
Marion County Circuit Court 07C49819, Joseph V. Ochoa, Judge.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals, challenging the revocation of four separate probationary terms that defendant was serving for crimes that he had committed against different victims. The trial court found that defendant had violated a probationary term that prohibited him from consuming alcohol and imposed four prison terms as a sanction for that single violation. The trial court ordered some of those prison terms to run consecutively. OAR 213-012-0040(2)(a) provides that "[i]f more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently." Article I, section 44(1)(b), of the Oregon Constitution provides that "[n]o law shall limit a court's authority to sentence a criminal defendant consecutively for crimes against different victims." The issue in this case is whether OAR 213-012-0040(2)(a) foreclosed the trial court from imposing consecutive terms for the single probation violation, or whether Article I, section 44(1)(b), instead operated to invalidate that regulatory limitation on the court's authority. For the following reasons, we conclude that OAR 213-012-0040(2) limited the trial court's authority to impose consecutive prison terms and accordingly remand for entry of judgment ordering the terms to run concurrently.
The facts are procedural and not disputed. Defendant pleaded no contest to four felony counts of encouraging child sexual abuse. Defendant admitted that the conduct involved four different victims. The judgments of conviction provided that the applicable sentencing gridblock for each count was 8-I, which calls for a presumptive prison sentence of 16 to18 months. Pursuant to a plea petition, the court imposed a dispositional departure sentence of 60 months' probation on each of the four counts. One of the probationary conditions prohibited defendant from consuming alcohol.
A little less than two years after the judgments of conviction were entered, the state requested, and the court signed, an order for defendant to show cause why his probation should not be revoked. The state asserted that defendant had admitted to consuming alcoholic beverages; it also indicated that defendant had visited a bar in violation of his probationary terms.
The court held a revocation hearing at which defendant admitted that he had imbibed in violation of his probationary terms. The court found defendant in violation of his probation and scheduled a second hearing to determine an appropriate sanction for that violation. In a memorandum filed before the second hearing, defendant argued that the trial court lacked the authority to impose consecutive prison terms for a single probation violation, citing ORS 137.123, OAR 213-012-0040, and State v. Stokes, 133 Or.App. 355, 891 P.2d 13 (1995). The state responded that Article I, section 44(1)(b), of the Oregon Constitution provided the court with the authority to sentence defendant to consecutive prison terms because there were four separate victims of the underlying crimes of conviction. The trial court concluded that it did have the authority to impose consecutive prison terms, stating:
"I think if this was a case where time was imposed, but not executed, and nothing was on the box checked as consecutive, the Court would have no choice but to run those concurrent. This is not such a case. The imposition of sentence was suspended. Therefore, the Court is at liberty to make that decision now.
"Second of all, I agree with [the state] that the Court allows--is allowed to give consecutive sentences in this case, based upon the fact that there were four separate victims. That was made clear in the plea petition."
The court imposed 18 months in prison on each of the four counts. It ordered the prison terms on Counts 1 and 2 to run concurrently to one another, the terms for Counts 3 and 4 to also run concurrently to one another, and the combined term imposed for Counts 1 and 2 to run consecutively to the combined term for Counts 3 and 4. Accordingly, the court imposed a total of 36 months in prison for the probation violation.
Defendant's sole contention on appeal is that the trial court lacked the authority to impose consecutive prison terms for the single probation violation. As he did before the trial court, ...