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State v. Berger

Court of Appeals of Oregon

March 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
EMRANCE IAN BERGER, Defendant-Appellant.

          Argued and Submitted November 10, 2015

         Polk County Circuit Court 14CR02548 Sally L. Avera, Judge.

         Affirmed.

          Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

          Timothy A. Sylwester, 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 Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

         Case Summary: Defendant appeals a judgment of conviction for three counts of sexual abuse in the second degree, ORS 163.425, assigning error to the trial court's ruling that he is ineligible for a reduction in sentence on any count. Held: A sentencing court may make a defendant ineligible for a reduction in the term of incarceration pursuant to ORS 137.750.

         Affirmed.

          TOOKEY, J.

         Defendant appeals a judgment of conviction for three counts of sexual abuse in the second degree, ORS 163.425, assigning error to the trial court's ruling that he is ineligible for any "reduction in sentence" on any count. For the reasons that follow, we affirm.

         The historical and procedural facts are undisputed. A Polk County grand jury returned an indictment charging defendant with multiple sexual offenses. Defendant pleaded guilty to two counts of sexual abuse in the second degree (Counts 4 and 5) and no contest to another count of sexual abuse in the second degree (Count 8). In his sentencing memorandum, defendant argued that, under ORS 137.750, "the court does not have the authority to deny a defendant eligibility for 'reduction in sentence [;]' [o] nly the Department of Corrections, pursuant to ORS 421.121, has that authority [.]"[1] The trial court rejected defendant's argument, sentenced defendant to a total of 38 months' imprisonment, and denied defendant eligibility for "reduction in sentence" on each count pursuant to ORS 137.750(1). The trial court stated that it was denying a reduction in sentence "based upon [defendant's] violation of public trust, that is the trust placed in [defendant] * * * by the community."

         On appeal, defendant does not challenge the adequacy of the court's finding that there were substantial and compelling reasons for denying defendant's eligibility for any form of temporary leave from custody, work release, or program of conditional or supervised release. Rather, defendant reprises the argument that he made to the trial court-that the trial court lacked the statutory authority to make him ineligible for a "reduction in sentence" under ORS 137.750(1). Specifically, defendant notes that ORS 137.750(1) requires the sentencing court to order "that the defendant may be considered by the executing or releasing authority for any form of *** reduction in sentence[, ]" and "the second clause of ORS 137.750-after the 'unless' portion of ORS 137.750(1)-does not refer to 'reduction in sentence.'" Thus, defendant contends that "the 'plain text' of ORS 137.750 [only] allows for a court to deny a defendant eligibility for 'leave, release or program'" and provides it no "authority to deny a defendant eligibility for 'reduction in sentence.'" Defendant asserts that "[o]nly the Department of Corrections, pursuant to ORS 421.121, has that authority, depending on appropriate institutional behavior [.]"

         The state responds, contending that "[defendant's argument has no merit because the list in the 'unless' clause is modified by the term 'such'" and "the 'such *** release' phrase in the last clause effectively reincorporates the preceding 'reduction in sentence' phrase in the opening clause." The state argues that the "necessary effect of a 'reduction in sentence'-e.g., pursuant to ORS 421.121-is that defendant will be released early on his sentence."

         The parties' arguments and the trial court's ruling present a question of statutory interpretation, which we review for legal error. See State v. Thompson, 328 Or 248, 256, 971 P.2d 879, cert den,527 U.S. 1042 (1999) ("A trial court's interpretation of a statute is reviewed for legal error."). When we interpret a statute, "[w]e ascertain the legislature's intentions by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, canons of construction." State ...


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