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State v. Redmond

Court of Appeals of Oregon

December 19, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
BRIAN KEITH REDMOND, Defendant-Appellant.

          Argued and submitted September 26, 2017.

          Multnomah County Circuit Court 940935853 Cheryl A. Albrecht, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals an amended judgment entered after the trial court granted, in part, his motion under former ORS 138.083 (2013), repealed by Or Laws 2017, ch 529, § 26, to correct the judgment. In that motion, defendant contended that the judgment contained, among other things, merger errors, an error involving the "200-percent rule," and errors in the terms of post-prison supervision (PPS). The trial court denied defendant's motion with respect to the asserted merger and 200-percent-rule errors, but granted it with respect to the asserted PPS errors. The trial court entered an amended judgment refecting the changes to the PPS terms; a 110-month term of PPS on Count 1 and a 218-month term of PPS on each of Counts 2 to 6. Defendant appeals, contending that the trial court's rulings on each request were erroneous. The state responds that defendant's claims of error are unreviewable because the trial court lacked authority under former ORS 138.083 to grant defendant's requested relief and the trial court did not abuse its discretion in denying defendant's motion to correct the asserted merger and 200-percent-rule errors. The state also argues that the [295 Or.App. 454] trial court erred in modifying defendant's PPS terms, but it does not contend that that error should be reversed. Held: The trial court had the authority to entertain defendant's requested modifications to his sentence, and the trial court's denial of his requested modifications was reviewable. The trial court based its denial of the asserted merger and 200-percent-rule errors in defendant's motion on a mistaken understanding of the 200-percent rule. Because the court's exercise of discretion was based on a mistaken understanding of the law, the Court of Appeals vacated and remanded to the trial court to reconsider its ruling on that point. In view of the competing arguments on appeal with respect to the other two issues, on remand the court should hold a hearing and address those issues as well in the manner indicated in the opinion.

         [295 Or.App. 455] LAGESEN, P. J.

         In this criminal case, defendant appeals an amended judgment entered after the trial court granted, in part, his motion under former ORS 138.083 (2013)[1] to correct the judgment. In the motion, defendant contended that his judgment of conviction contained, among other things, merger errors, an error involving the so-called "200-percent rule," OAR 213-012-0020(2)(b), [2] and errors in the terms of post-prison supervision (PPS) imposed, and he requested that the court hold a hearing on the motion and correct those errors. Without holding the requested hearing, the court denied the motion with respect to asserted merger and 200-percent-rule errors, but granted it with respect to asserted PPS errors. Thereafter, it entered an amended judgment reflecting the changes to the PPS terms that the court determined were warranted. Because we conclude that the court's ruling was, in part, based on a mistake of law, we vacate and remand for reconsideration.

         Although the state contests the point, we have jurisdiction over this appeal pursuant to former ORS 138.053 (1)(a) (2013), repealed by Or Laws 2017, ch 529, § 26. State v. Larrance, 270 Or.App. 431, 438-39, 347 P.3d 830 (2015) (amended judgment entered pursuant to ruling on ORS 138.083 motion is appealable); State v. Harding, 222 Or.App. 415, 420, 193 P.3d 1055 (2008) (Harding I), adh'd to on recons, 225 Or.App. 386, 202 P.3d 181 (Harding II), vac'd on other grounds, 347 Or. 368, 223 P.3d 1029 (2009).[3] Our review is for abuse of discretion. Larrance, 270 Or.App. at 438; State v. Lewallen, 262 Or.App. 51, 56, 324 P.3d 530, rev den, 355 Or. 880 (2014). Although that standard is a deferential one, [295 Or.App. 456] as we explained in Larrance, a discretionary decision that is founded on a misapprehension of the law qualifies as an abuse of discretion under the standard. Larrance, 270 Or.App. at 440 ("Here, because the trial court intended to give a lawful sentence, but misapprehended the law and ultimately decided the matter in reliance on that erroneous view of the law, the court abused its discretion.").

         The relevant facts are procedural and not disputed. In 1995, a jury convicted defendant of six counts of first-degree rape (Counts 1 to 6), ORS 163.375; one count of first-degree kidnapping (Count 7), ORS 163.235; one count of first-degree sodomy (Count 8), ORS 163.405; and two counts of first-degree sexual abuse (Counts 9 and 12), ORS 163.427. All counts involved the same victim. In the original judgment of conviction, the trial court designated Count 1 as the primary offense and imposed a 130-month term of incarceration on that count. On each of Counts 2 to 6, the court imposed consecutive 22-month terms of incarceration. On Count 7, the court upwardly departed and imposed a consecutive 60-month term of incarceration. On the remaining counts, the trial court imposed concurrent terms of incarceration. On Counts 1 to 6, the court specified an indeterminate term of PPS: "240 months, less actual time served." With respect to each count, the judgment stated, "Defendant is subject to ORS 137.635 ('Denny Smith law')." Defendant appealed, and, on appeal, we ruled that the court erred when it determined that defendant was subject to ORS 137.635 but otherwise affirmed the judgment. State v. Redmond, 155 Or.App. 297, 298, 963 P.2d 743, rev den, 327 Or. 558 (1998). On remand, the trial court amended the original judgment to eliminate the references to ORS 137.635, but did not otherwise alter its previously imposed sentence.

         In 2014, defendant moved under former ORS 138.083 to correct what, in his view, were errors in the operative judgment of conviction. Pertinent to this appeal, defendant asserted that the judgment (1) erroneously failed to merge the guilty verdicts on Counts 1 to 6; (2) erroneously failed to merge the guilty verdicts on Counts 9 and 12; (3) violated the 200-percent rule; and (4) erroneously imposed indeterminate PPS terms on Counts 1 to 6, contrary to the holding [295 Or.App. 457] in State v. Mitchell, 236 Or.App. 248, 235 P.3d 725 (2010). Defendant requested a hearing on the motion.

         The trial court declined defendant's request to hold a hearing, but granted the motion in part and denied it in part. Regarding defendant's request that it correct the asserted merger errors, the court observed that "[t]here is a public interest in the finality of judgments and the efficient administration of justice." The court noted that defendant had the opportunity to raise his arguments regarding merger at the time of trial and sentencing and that the state's sentencing memorandum indicated that the issue of whether the verdicts should merge was before the court at the time. It noted further that, although "case law in recent years indicates a trend toward merger, the sentencing court's decision was within the range of legally correct choices." Based on those considerations, the court declined to exercise its discretion to grant defendant's motion with respect to the asserted merger errors.

         Regarding defendant's claim that his sentence turned on a misapplication of the 200-percent rule, the court concluded that, "[u]nder the 200-percent rule, [defendant] could receive a sentence of up to twice the maximum presumptive incarceration term. That amount is 380 months for Counts 1 and 2 alone." Therefore, the court reasoned, defendant's 300-month sentence on Counts 1 to 7 did not violate the 200-percent rule, because it was shorter than the 380-month total that the court concluded could have been imposed on the first two counts.

         The trial court, however, agreed with defendant's assertion that his PPS terms on Counts 1 to 6 were unlawfully indeterminate. It also concluded that that error should be corrected. To that end, the court ruled that the judgment should be amended to impose a 110-month term of PPS on Count 1 and a 218-month term of PPS on each of ...


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