Argued and Submitted December 15, 2014.
Deschutes County Circuit Court 12FE1187. Stephen P. Forte, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.
[269 Or.App. 886] FLYNN, J.
Defendant appeals from a judgment convicting him of escape in the second degree under ORS 162.155(1)(b), a crime that requires an escape from custody " imposed as a result" of a felony conviction. Defendant contends that the custody from which he escaped--an attempted arrest pursuant to an order suspending his post-prison supervision (PPS)--was not custody " imposed as a result" of his felony convictions within the meaning of ORS 162.155(1)(b). Defendant, thus, assigns error to the trial court's denial of his motion for judgment of acquittal on the crime of second-degree escape and seeks remand for entry of a judgment of conviction on the lesser-included offense of third-degree escape.
The state counters that the connection to a felony conviction necessary for second-degree escape is met because defendant's term of PPS, suspension of which
prompted the arrest, was part of his sentence for felony convictions. We conclude that, when the legislature classified escape from custody " imposed as a result" of a felony conviction as second-degree escape, ORS 162.155(1)(b), it did not intend the phrase to include new periods of custody arising after the person has served his or her sentence of incarceration for the felony and has been released from that custody. Accordingly, we reverse.
We review the denial of a motion for judgment of acquittal to determine whether, viewing the facts in the light most favorable to the state, a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Clemente-Perez, 261 Or.App. 146, 148, 322 P.3d 1082, rev allowed, 356 Or. 397, 337 P.3d 127 (2014) (citing State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995)). In this case, the relevant facts are not in dispute. Defendant has prior convictions for felonies, for which he was sentenced to the custody of the Department of Corrections for incarceration to be followed by periods of PPS. As pertinent to this appeal, defendant completed his term of incarceration and was released to PPS in April 2011. On October 11, 2012, the State Board of Parole and Post-Prison Supervision (the board) issued an Order of [269 Or.App. 887] Supervision Suspension and Detention directing " any sheriff, peace officer, parole officer, or corrections officer" to take defendant into custody. Pursuant to that order, a Deschutes County Sheriff's deputy initiated a traffic stop of defendant's car. Defendant's vehicle sped away, and defendant was eventually apprehended after a pursuit that included a high-speed car chase, spike strips used to slow defendant's car, and defendant then fleeing on foot while the deputy ran after him yelling " Stop. Police. You're under arrest." Defendant was charged with two counts of " fleeing or attempting to elude a police officer," to which he pleaded guilty. He was also charged with one count of escape in the second degree, ORS 162.155(1)(b), which was tried to the court and is the subject of this appeal.
Defendant's conviction under ORS 162.155(1)(b) required the state to prove that defendant, " [h]aving been convicted or found guilty of a felony, * * * escape[d] from custody imposed as a result thereof." Defendant accepts that the state proved that he escaped from custody, but he disputes that this custody was " imposed as a result" of his felony convictions. Defendant reasons that, once a person serves his sentence of incarceration for a felony conviction and is released from custody, any new custody is not " imposed as a result" of the prior felony conviction.
The appeal, thus, turns on what the legislature meant by custody " imposed as a result" of a felony conviction. We determine that question of legislative intent through the methodology articulated in State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009), considering the pertinent statutory text and context as well as any legislative history that " appears useful to the court's analysis."
The Supreme Court has previously construed the key phrase of ORS 162.155(1)(b) in a way that both parties read as supporting their interpretations of the pertinent [269 Or.App. 888] statutory text, so we begin by examining that case. In State v. Palaia, 289 Or. 463, 465-66, 614 P.2d 1120 (1980), the defendant was serving a 20-year sentence in the custody of the Corrections Division and escaped during transport between the Oregon State Penitentiary and the Marion County Courthouse, where he made a court appearance. He argued that he could not be convicted for escaping from custody imposed as a result of a felony because the order placing him in custody of the ...