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State v. McFerrin

Court of Appeals of Oregon

November 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON ALLEN McFERRIN, Defendant-Appellant.

          Argued and submitted October 27, 2016

         Jackson County Circuit Court 13CR09373; Patricia Crain, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment revoking four terms of probationary supervision for two separate supervision violations. The court imposed 20-month incarceration sanctions on each term of probationary supervision that was revoked. The court ordered three of the incarceration sanctions to be served consecutively, and the fourth incarceration sanction to be served concurrently with the other incarceration sanctions, for a total of 60 months' incarceration. On appeal, defendant contends that, under OAR 213-012-0040(2)(b), "each consecutive sanction requires a 'separate supervision violation' " and, therefore, it was error for the court to impose three consecutive incarceration sanctions because he committed only two separate supervision violations. Held: If the court revokes multiple probationary sentences for "separate supervision violations, " OAR 213-012-0040(2)(b), then the court has the authority to impose concurrent or consecutive incarceration sanctions for each term of probationary supervision that is revoked. Because defendant committed more than a single supervision violation, [289 Or.App. 97] the court did not err in imposing three consecutive sentences for defendant's two "separate supervision violations" of four terms of probationary supervision.

          [289 Or.App. 98]

          TOOKEY, J.

         Following guilty pleas, defendant was convicted of four counts of identity theft, ORS 165.800, and one count of second-degree theft, ORS 164.045. The court imposed sentences of supervised probation for a period of 18 months for each of the identity theft convictions and a 30-day jail term for the second-degree theft conviction. While defendant was on probation, the court issued an order to show cause why defendant's probation should not be revoked for changing employment or residency without permission, and for failing to report as required by the terms of his probation and abide by the directions of the supervising officer. At the show cause hearing, defendant admitted that he had committed those two separate supervision violations.

         As a result of those supervision violations, the sentencing court revoked defendant's four separate terms of probationary supervision and imposed 20-month incarceration sanctions on each of the four counts of identity theft. The court ordered three of the incarceration sanctions to be served consecutively, and ordered the fourth incarceration sanction to be served concurrently with the other incarceration sanctions, for a total of 60 months' incarceration. On appeal, defendant challenges the court's imposition of three consecutive terms of incarceration. As explained below, we conclude that the sentencing court acted within its authority under OAR 213-012-0040(2)(b)[1] in imposing three consecutive incarceration sanctions. Accordingly, we affirm.

         A lengthy recitation of facts in this case would not benefit the parties, the bench, the bar, or the public. Therefore, we begin our discussion with the parties' contentions on appeal. Defendant argues that it was error for the sentencing court to impose three consecutive incarceration [289 Or.App. 99] sanctions when it revoked four terms of probationary supervision because he committed only two separate supervision violations. Defendant contends that, under OAR 213-012-OO4O(2)(b), "each consecutive sanction requires a 'separate supervision violation.'" The state responds that defendant's "claim of error has merit only if he is correct [that] the rule requires a one-for-one match between the violations of probation found and the consecutive sentences imposed." The state asserts that the rule sets up a simple test: "if the court revokes multiple probationary sentences 'for a single supervision violation, ' then all the sentences imposed must be concurrent, but if the revocation is based on 'separate supervision violations, ' then the court has discretion to impose either concurrent or consecutive sentences" for each term of probationary supervision that is revoked. The issue on appeal is whether the sentencing court had the authority under OAR 213-012-0040(2)(b) to impose three consecutive incarceration sanctions based on two separate supervision violations.[2]

         That issue presents a question of law, which we review for legal error. See State v. Lewis. 257 Or.App. 641, 643, 307 P.3d 560 (2013) ("Whether a sentencing court exceeded its authority in imposing consecutive sanctions for probation violations is a question of law, which we review for errors of law."); Johnson v. Employment Dept., 189 Or.App. 243, 248, 74 P.3d 1159, adh'd to as modified on recons, 191 Or.App. 222, 81 P.3d 730 (2003) ("The interpretation of rules is a legal question that we review for errors of law."). "In construing an administrative rule, we apply the same analytical framework that applies to the construction of statutes." State v. Hogevoll. 348 Or. 104, 109, 228 P.3d 569 (2010).[3] Thus, "[w]e [289 Or.App. 100] ascertain the legislature's intentions by examining the text * * * in its context, along with any relevant legislative history, and, if necessary, canons of construction." State v. Cloutier. 351 Or. 68, 75, 261 P.3d 1234 (2011).

         OAR 213-012-0040(2) controls the imposition of consecutive incarceration sanctions when multiple terms of probationary supervision are revoked. We start with the text of OAR 213-012-0040(2) because it is "the best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). As noted, OAR 213-012-0040(2) provides:

"When an offender is serving multiple terms of probationary supervision the sentencing judge may impose revocation sanctions for supervision violations as provided by OAR 213-010-0002 for the violation of each ...

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