Submitted: May 29, 2014.
Multnomah County Circuit Court 091234965, 120130446. Eric J. Bergstrom, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[264 Or.App. 206] LAGESEN, J.
The issue on this appeal is whether the trial court was required to find " substantial and compelling reasons" under ORS 137.750 to deny defendant eligibility for alternative incarceration programs (AIPs) and early release under ORS 421.508. We conclude that it was not, because ORS 137.751, not ORS 137.750, governs eligibility for AIPs, and ORS 137.751 does not require a trial court to find " substantial and compelling reasons" to deny eligibility for AIPs.
Defendant was on probation. He failed to comply with the terms of that probation by, in the words of the trial court, presenting " positive U. A.'s, resisting arrest, [and] faking medical issues."  As a result of those violations, the trial court revoked defendant's probation and sentenced him to a net of 60 months' incarceration, to be followed by 36 months' post-prison supervision. The trial court denied defendant AIP eligibility on the ground that defendant's probation history demonstrated that defendant was not a " good fit" for an AIP and that defendant did not have " any chance of completing the program." In so doing, the trial court rejected defendant's contention that it was required to find " substantial and compelling reasons" to deny AIP eligibility to defendant. On appeal, defendant assigns error to the trial court's determination that he was not eligible for AIPs, arguing that ORS 137.750(1) required the trial court to find " substantial and compelling reasons" to deny eligibility, and [264 Or.App. 207] that the trial court erred by not making those findings. We review for legal error the trial court's determination that it was not required to find " substantial and compelling reasons" to deny eligibility for AIPs, and affirm.
Had defendant committed his offenses before January 1, 2009, he would be correct about what findings the trial court needed to make to deny AIP eligibility. Before that date, ORS 137.750(1) (1997), amended by Or Laws 2008, ch 35, § 2 (Spec Sess), governed the determination of whether a defendant was eligible for AIPs, among other things. It provided:
" When a court sentences a defendant to a term of incarceration upon conviction of a crime, the court shall order on the record in open court as part of the sentence imposed that the defendant may be considered by the executing or releasing authority for any form of temporary leave from custody, reduction in sentence, work release, alternative incarceration program or program of conditional or supervised release authorized by law for which the defendant is otherwise eligible at the time of sentencing, unless the court finds on the record in open court substantial and compelling reasons to order that the defendant not be considered for such leave, release or programs. "
ORS 137.750(1) (1997) (emphases added). That is, the statute required a trial court to order a defendant's eligibility for, among other things, AIPs, unless the trial court found " substantial and compelling reasons" to deny eligibility.
In 2008, the legislature changed the process for determining ...