CHESTER C. WESTFALL, Respondent on Review,
STATE OF OREGON, by and through the actions of its agency the Oregon Department of Corrections, Petitioner on Review
Argued and Submitted March 8, 2013.
CC 07C23164; CA A140772. On review from the Court of Appeals.[*]
Westfall v. State, 247 Or.App. 384, 271 P.3d 116 (2011)
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
Erin C. Lagesen, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Richard L. Cowan, Salem, argued the cause and filed the brief for respondent on review.
[355 Or. 146] LINDER, J.
Plaintiff brought a civil action against the State of Oregon, alleging that the Department of Corrections had kept him in prison longer than his lawful term of incarceration. Specifically, plaintiff alleged that the department had extended his prison term unlawfully by having a sentence run consecutively to another sentence imposed the same day, rather than running consecutive to a sentence that had been imposed previously. The state moved for summary judgment, asserting that it was entitled to discretionary immunity under ORS 30.265(6)(c) because the department's written policies required its employees to treat the sentence as consecutive to other sentences imposed the same day. The trial court agreed and granted
summary judgment for the state. The Court of Appeals reversed on appeal, concluding that any discretionary immunity that applies to the department's decision to adopt the written policies did not also apply to those employees who carried out the policies. Westfall v. Dept. of Corrections, 247 Ore App 384, 392-93, 271 P.3d 116 (2011). On review, we conclude that the Court of Appeals erred in its analysis, and we reject plaintiff's alternative argument that the actions of the department and its employees are not of a kind protected by discretionary immunity. We remand, however, for the Court of Appeals to consider other arguments by plaintiff that the Court of Appeals did not address.
I. BACKGROUND, FACTS, AND PROCEDURAL POSTURE
On review, we examine the trial court's grant of summary judgment to determine whether there was no genuine issue of material fact such that the state was entitled [355 Or. 147] to judgment as a matter of law. See ORCP 47 C; Hughes v. Wilson, 345 Ore 491, 500-01, 199 P.3d 305 (2008). In this case, the facts are essentially undisputed. Before we turn to the particular events at issue, however, we first describe in a general way how prison terms are calculated, because doing so is helpful context for the particular calculation made in this case.
A. Overview of Sentences and Sentence Calculation
As noted, this case arose because plaintiff disputed the department's calculation of the amount of time that plaintiff was required to serve in prison as a result of multiple sentences. For that purpose, there are two different types of sentences: concurrent and consecutive. See ORS 137.123 (so providing). Concurrent sentences are served at the same time, while consecutive sentences are served in sequence, one following the other. See generally Black's Law Dictionary 1485 (9th ed 2009) (defining " concurrent sentences" and " consecutive sentences" ). By statute, sentences are concurrent unless the sentencing court specifically orders otherwise. ORS 137.123(1).
If a prisoner has multiple sentences that are all concurrent, then the length of time that the prisoner spends in prison will essentially be determined by the longest sentence. That is so because, in effect, all the sentences are running at the same time, so the shorter sentences will have been served before the final release date.
The trial court may, however, impose a sentence consecutive to any combination of existing sentences. See ORS 137.123(1) (sentence may be " concurrent or consecutive to any other sentence which has been previously imposed or is simultaneously imposed" ). Thus, a court may order a particular sentence to be served consecutive to some or all prior sentences, concurrent with some or all prior sentences, [355 Or. 148] or both consecutive to some sentences and concurrent with others. No law prescribes the precise terminology that a court must use in imposing a consecutive sentence, however. As a result, courts may -- and in fact do -- use widely varying terminology to describe the extent to which a particular sentence is consecutive, concurrent, or both.
The legislature has entrusted to the Department of Corrections (at least in the first instance) the task of calculating a prisoner's prison term based on the variable text that trial courts often use in their judgments to impose concurrent and consecutive sentences. ORS 137.320(3). In 2004, the department
promulgated an extensive written policy directing how a prison term analyst (PTA) should calculate a prisoner's term of incarceration. That policy contains two sections relevant to this case. The first section, which addresses " facially invalid and/or problem judgments," provides that the PTA will make all calculations based on the judgment alone, although in some circumstances the PTA must bring apparent problems with the judgment to the attention of a supervisor or the court. Specifically, the policy states:
" Occasionally, courts issue judgments that do not comply with statutory requirements. If a PTA becomes aware of a problem with a judgment, particularly a problem that might result in a violation of the inmate's rights or a deprivation of a liberty interest of the inmate, the PTA must immediately bring the problem to the attention of a leadworker or technician.
" Such problems include clerical mistakes or oversights (including typographical errors) as well as substantive errors in the application of sentencing laws. Where an error in a judgment appears to be a clerical error, the PTA will contact the court for clarification and to allow the court the [355 Or. 149] opportunity to correct the error. The PTA may contact the court by telephone, but will follow-up with written confirmation or notification to the court of the problem.
" The PTA must also request that the court send an amended judgment. The PTA must not rely solely on verbal instructions regarding changes to a written judgment.
" Note: In order for [the department] to accept a judgment as valid, the judgment must be received from an official source, such as a court, District Attorney, Board of Parole and Post Prison Supervision (BPPPS), community corrections office, etc. [The department] may not make adjustments to inmate's sentences based on a judgment received from a defense attorney, inmate, or other unofficial source. Additionally, [the department] may not accept letters or verbal instructions from the court, District Attorney, or other sources for use in sentence calculation. [The department] is bound by the judgment and must receive amended judgments before any changes can occur."
(Emphases in original.)
The second relevant part of the policy describes various ways in which a judgment of conviction and sentence could describe a consecutive sentence and directs the PTA how to calculate the term of imprisonment. The policy states:
" 1. 'Consecutive to Sentences Previously Imposed'
" A consecutive sentence begins on the date of completion of the preceding sentence in the sequence of sentences. If the court orders that a sentence be served 'consecutive to sentences previously imposed,' the sentence will be set up as consecutive to any other sentences imposed the same date or on an earlier date. (Sentences imposed the same date will be considered as 'previously imposed.') * * *
" 2. 'Consecutive to Sentences Simultaneously Imposed'
" If the court orders that a sentence be served 'consecutive to sentences simultaneously imposed,' the sentence will be set up as consecutive to any other sentences imposed the same date. (Sentences imposed on an earlier date will not be considered 'simultaneously imposed.')
[355 Or. 150] " 3. 'Consecutive to Sentences Currently Being Served'
" If the court orders that a sentence be served 'consecutive to sentences currently being served,' the sentence will be set up as consecutive to any other sentences imposed the same date or on an earlier date. (Sentences imposed the same date will be considered as [']currently serving.')"
(Emphases in original.)
The policy also provides that a sentence that is consecutive to more than one sentence
will be calculated to begin when the last of those other sentences ends:
" If a sentence is consecutive to more than one other sentence, the PTA will determine which of the other sentences will be completed last and enter the consecutive sentence as CS [consecutive] to that sentence."
B. Facts of Plaintiff's Case
With that background, we turn to the particular facts of plaintiff's sentences. Preliminarily, we note that plaintiff's sentences formed a complicated mosaic of at least 19 different sentences arising from seven criminal cases heard in four counties. Because a number of those sentences did not bear on the proper calculation of plaintiff's term of imprisonment, we will omit any discussion of them here.
Plaintiff was serving a prison sentence when he escaped from custody. In July 2001, after he was recaptured, the Marion County Circuit Court sentenced plaintiff to a 20-month consecutive sentence for second-degree escape II. Because the sentence was " consecutive to any sentence previously imposed," plaintiff's prison term would end when that 20-month sentence was served.
In September 2002, plaintiff received six prison sentences in a Josephine County Circuit Court case. Those sentences are the essential source of plaintiff's complaint here. [355 Or. 151] Four of the sentences were concurrent, and two were consecutive. Plaintiff received 12-month concurrent sentences on Counts 14 and 22, and 13-month concurrent sentences on Counts 10 and 46. On Count 49, however, the judgment provided that the trial court sentenced plaintiff to 26 months " consecutive to all previously imposed sentences." Finally, on Count 5 the trial court sentenced plaintiff to 10 months consecutive to the sentence imposed in Count 49.
At that time, then, plaintiff's term of imprisonment would have ended when he completed three consecutive sentences sequentially: The 20-month Marion County sentence, the 26-month sentence for Josephine County Count 49, and the 10-month sentence for Josephine County Count 5. All plaintiff's other outstanding concurrent sentences -- including the four concurrent sentences in Josephine County -- had no effect on the term of imprisonment, at least at that time. They were running concurrently with the 20-month Marion County sentence and would have expired before the Marion County sentence was completed.
In 2005, however, the 20-month Marion County escape sentence was vacated and remanded. On resentencing, the new sentence in that case was so reduced that plaintiff had already completed that sentence.
The department thus had to recalculate plaintiff's remaining term of imprisonment. In particular, the department needed to determine which sentence would, when it expired, trigger the beginning of plaintiff's 26-month consecutive sentence for Josephine County Count 49. The department's employees interpreted the department's written policy to dictate that the words " consecutive to all previously imposed sentences" in the Josephine County judgment for Count 49 meant consecutive not only to sentences imposed previously, but also consecutive to sentences imposed the same day. Because the longest outstanding remaining sentences that met those criteria were the two 13-month sentences on Counts 10 and 46 imposed by the Josephine County Circuit Court on the same day, the department recalculated plaintiff's term of imprisonment so that the 26-month sentence on Count 49 would start when the 13-month sentences on Counts 10 and 46 expired. Thus, [355 Or. 152] plaintiff would serve a total of 49 months on his Josephine County sentences: 13 months on Counts 10 and 46, followed by 26 months on Count 49, followed by 10 months on Count 5 (with the two 12-month sentences in Counts 14 and 22 running concurrently).
When plaintiff learned of the department's recalculation, he objected. He asserted that the Josephine County Circuit Court had not intended the 26-month sentence in Count 49 to run consecutively to any sentence entered that same day. The court, he maintained, had intended the sentence to be consecutive to only the sentences imposed in earlier cases. Plaintiff noted that his plea agreement in the Josephine County case specifically stated that he would only serve a total of 36 months for the sentences imposed on that case. Plaintiff thus contended that the Josephine County Circuit Court had intended the total time served ...