Submitted November 7, 2014.
Washington County Circuit Court. C061425CR. Andrew Erwin, Judge.
Jeremy N. Larson filed the briefs, Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 803] HADLOCK, J.
Defendant appeals a trial court order denying his motion to set aside a conviction under ORS 137.225. The trial court denied the motion because defendant had previously been convicted of an offense in Washington state. Defendant asserts that the conduct underlying the Washington conviction occurred before the conviction that he seeks to set aside and therefore did not preclude relief under ORS 137.225. We agree with defendant and, therefore, reverse and remand.
Defendant was charged in Washington County Circuit Court with possession and delivery of marijuana in June 2006. Around the same time, he was also arrested in Washington state and charged in Clark County Superior Court with manufacturing marijuana. In November 2006, defendant pleaded guilty to delivery of marijuana in the Oregon case, and the possession count was dismissed. In March 2007, he entered a guilty plea in the Washington case.
Defendant later filed a motion in the Clark County court to vacate the Washington conviction under RCW 9.94A.640, which permits courts, under certain circumstances, to " clear the record of conviction" and provides that, once the court has done so, " the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime." The Clark County court granted the motion in July 2013.
The next month, defendant filed a motion in the Washington County court to set aside the Oregon conviction under ORS 137.225. That statute provides, in pertinent part:
" (1)(a) At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5) of this section by motion may apply to the court where the conviction was entered for entry of an order setting aside the conviction; * * *
[268 Or.App. 804] " * * * * *
" (3) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as the court deems proper. The court shall allow the victim to make a statement at the hearing. Except as otherwise provided in subsection (13) of this section, if the court determines that the circumstances and behavior of the applicant from the date of conviction * * * to the date of the hearing on the motion warrant setting aside the conviction, * * * the court shall enter an appropriate order * * *. Upon entry of the order, the applicant for purposes of the law shall be deemed not to ...