July 9, 2014
STATE OF OREGON, Plaintiff-Respondent,
CARRIE DAWN GOODENOUGH, Defendant-Appellant
Submitted: May 29, 2014.
Marion County Circuit Court. 13C40176. Dale Penn, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[264 Or.App. 212] LAGESEN, J.
The issue on this appeal is whether the trial court erred when it determined defendant's eligibility for alternative incarceration programs (AIPs) and early release under ORS 421.508(4) under the statutory framework that governed that determination for offenses committed before January 1, 2009. We conclude that the trial court erred by applying the former statutory framework rather than the current statutory framework, but affirm because defendant was " actively instrumental" in bringing about that error and therefore invited it.
Defendant was convicted of multiple offenses, including first-degree burglary as charged in Count 1 of the indictment. At sentencing, defendant requested that the trial court determine that she was eligible for AIPs. The state argued that the court should deny AIP eligibility for " substantial and compelling reasons," namely, defendant's " persistent involvement in * * * past sanctions."  Defendant, [264 Or.App. 213] in response, asserted that " it's our position that there are not essential and compelling reasons to deny AIP for good time[.]" The trial court denied AIP eligibility with respect to Count 1. The court explained:
" And I would find that on count 1, because there are multiple victims, I would order that there be 936 program[s], but I find substantial and compelling reason[s] to order that AIP would not be appropriate on count 1. All right. As a separate criminal episode and separate victims."
On appeal, defendant assigns error to the trial court's denial of AIP eligibility with respect to Count 1. She argues that the trial court applied the wrong legal framework to determine her eligibility for AIPs when it used the " substantial-and-compelling-reasons" test under ORS 137.750(1), and that
the trial court instead should have applied the criteria in ORS 137.751(1) to assess her eligibility for AIPs.
[264 Or.App. 214] We agree that the trial court applied the wrong legal test to determine defendant's eligibility for AIPs. However, defendant not only failed to preserve that issue for appeal, but she also affirmatively invited any error. Accordingly, we affirm.
The trial court's decision is consistent with the statutory framework as it existed for offenses committed prior to January 1, 2009. Prior to 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. As we observed in State v. Cross, 264 Or.App. 205, 207, 331 P.3d 1073, (July 9, 2014), that 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." (Emphases in original.) In 2008, however, the legislature enacted House Bill (HB) 3638 and altered the process for determining AIP eligibility. Under the current statutory framework, ORS 137.751(1), not ORS 137.750(1), governs a trial court's determination of a defendant's eligibility for AIPs. See Or. Laws 2008, ch 35, § 2 (Spec Sess) (removing references to AIPs in ORS 137.750); Or. Laws 2008, ch 35, § 1 (Spec Sess) (enacting ORS 137.751). Under ORS 137.751(1), " [T]he state no longer must prove--and a trial court no longer must find--'substantial and compelling reasons' to deny eligibility; rather, the burden is on the defendant to show that the specified eligibility requirements are met." Cross, 264 Or.App. at 209, at *7.
[264 Or.App. 215] In denying AIP eligibility on the ground that there were " substantial and compelling reason[s]" to do so, the trial court erroneously applied the statutory framework set forth in ORS 137.750(1). However, the general rule is that if an appellant " 'was actively instrumental in bringing about' the error, then the appellant 'cannot be heard to complain, and the case ought not to be reversed because of it.'" State v. Ferguson, 201 Or.App. at 261, 269, 119 P.3d 794 (2005), rev den, 340 Or. 34, 129 P.3d 183 (2006) (quoting Anderson v. Oregon Railroad Co., 45 Or. 211, 216-17, 77 P. 119 (1904)). Here, defendant's conduct was actively instrumental in bringing about that error; both defendant and the state invoked the " substantial-and-compelling-reasons" framework of ORS 137.750(1) in arguing the issue of defendant's AIP eligibility to the trial court, and neither party alerted the court that the framework for determining eligibility for AIPs had
changed. For that reason, we decline to reverse.