and Submitted November 10, 2015
County Circuit Court 14CR02548 Sally L. Avera, Judge.
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
Sercombe, Presiding Judge, and Hadlock, Chief Judge, and
Tookey, Judge. [*]
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.
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.
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
[.]" 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."
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 [.]"
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."
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 ...