Argued and Submitted January 6, 2015.
Lane County Circuit Court 201217651.
Kevin T. Lafky argued the cause for appellant. With him on the briefs were Daemie M. Kim and Lafky & Lafky.
James A. Aaron, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[269 Or.App. 228] HADLOCK, J.
Defendant was convicted of four felonies after he entered guilty pleas, and the trial court imposed probationary sentences. Defendant later admitted that he had violated two of the conditions of his probation. The trial court revoked defendant's probation and purported to sentence him on each of the four underlying convictions. Accordingly, as part of its judgment on revocation, the court " sentenced" defendant to 60 days of jail on one of the convictions and to 18-month prison terms (plus post-prison supervision) on each of the other three convictions. After finding that " this all did not occur in one continuous course of conduct," the court ordered two of the 18-month prison terms to be served consecutively pursuant to ORS 137.123. Defendant appeals, challenging imposition of the consecutive terms of incarceration. As explained below, we conclude that the trial court erred by imposing consecutive sentences under ORS 137.123. Indeed, the court erred by sentencing defendant at all, as defendant had already been sentenced on his
felony convictions when he received his probationary sentences at the time of conviction. Instead of sentencing defendant when it revoked his probation, the trial court should have imposed revocation sanctions. We reverse and remand for the trial court to do so.
The facts pertinent to this appeal are procedural and undisputed. Defendant was charged with two counts of unauthorized use of a vehicle (UUV), second-degree burglary, and first-degree criminal mischief, all Class C felonies. One of the UUV counts (Count 1) related to defendant's unlawful use, in June 2012, of a truck that belonged to Lithia Motors. The prosecutor later asserted (and defendant did not dispute) that defendant committed that crime by entering the Lithia Motors lot through an unlocked fence, taking keys to the truck, and driving the truck off the lot, causing some damage to it. The other three charges--Counts 2 (burglary), 3 (UUV), and 4 (criminal mischief)--related to events that occurred one night in August 2012. The prosecutor asserted (again without contradiction by defendant) that defendant returned to Lithia Motors, took keys to another truck, and drove the truck off the lot by crashing it through a locked gate, causing " pretty extensive damage."
[269 Or.App. 229] The state and defendant entered plea negotiations, which culminated in defendant signing a plea petition that described the negotiated agreement as follows:
" [T]he parties agree that counts 2, 3 and 4 [related to the August incident] fall under BM 57 with each count having a presumptive 18 month prison sentence. The defense represents that defendant has reunited with his parents, enrolled in school, and [is] back on track. Accordingly, the state and defendant agree to a downward dispositional departure to probation for a period of 36 months on all counts. Defendant will be exempt from structured sanctions so that any probation violation will be returned to the court at which time defendant can expect that the presumptive sentences will be imposed. The parties agree to 20 days jail and 100 hours of community service as a condition of probation, as well as restitution * * *."
The trial-court file includes another, unsigned document titled " WAIVER OF INDICTMENT AND PLEA," which includes a statement--apparently related to the parties' negotiations--that defendant would " go to the Department of Corrections for 18 months for any violations of probation."
During a change-of-plea hearing, the court questioned defendant about his desire to waive his right to a jury trial and to enter a guilty plea, and it cautioned defendant that it had not agreed to be bound by the parties' sentencing recommendation. The court also ensured that defendant understood that, by signing the plea petition, he would acknowledge that Counts 2, 3, and 4 " would fall under Ballot Measure 57, with each having a presumptive prison sentence of 18 months." The court further explained that, if it sentenced defendant to probation and his probation was later revoked, defendant would " come ...