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State v. Tucker

Court of Appeals of Oregon

February 4, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
GORDON EUGENE TUCKER, Defendant-Appellant

Submitted July 18, 2013

Washington County Circuit Court. C002356CR. Rick Knapp, Judge.

Vincent J. Bernabei, LLC, 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.

OPINION

Page 657

[268 Or.App. 724] ARMSTRONG, P. J.

Defendant appeals an order denying his motion to set aside his conviction and records of arrest for public indecency. Defendant contends that the trial court erred in concluding that, under ORS 137.225, he was ineligible to have his conviction set aside because it amounted to a " sex crime," as defined in ORS 181.805. For the reasons set out below, we affirm.

In July 2000, defendant was convicted of misdemeanor public indecency under ORS 163.465. Eight months after that conviction, in March 2001, defendant was again convicted of public indecency. The crime that led to the second conviction occurred in September 2000, approximately two months after defendant's first conviction. Because it was his second conviction for public indecency, defendant's conviction was for a Class C felony. ORS 163.465(2)(b). It also was for a sex crime, as defined in ORS 181.805(5)(t).

In November 2011, defendant's misdemeanor public-indecency conviction was set aside under ORS 137.225(1)(a). That statute allows a defendant to have a conviction set aside if three years have elapsed since the court pronounced its judgment on the conviction and the defendant has fully complied with the sentence imposed for the conviction. Thereafter, defendant sought to have his felony public-indecency conviction set aside, and the state objected, contending that, because his felony conviction was for a " sex crime," it was ineligible to be set aside under ORS 137.225. The trial court agreed with the state and denied defendant's motion, and defendant appealed.

Before addressing the parties' arguments on appeal, an overview of the pertinent statutory provisions is necessary. ORS 137.225(1)(a) allows a criminal defendant to move for an order setting aside his or her conviction " [a]t any time after the lapse of three years" from the judgment of conviction if (1) the defendant " has fully complied with and performed the sentence of the court," and (2) the defendant's conviction falls within ORS 137.225(5). Subsection (5) provides, as pertinent here:

" The provisions of subsection (1)(a) of this section apply to a conviction of:
[268 Or.App. 725] " * * * * *
" (b) A Class C felony, except for * * * any ...

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