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State v. Kelemen

Court of Appeals of Oregon

February 21, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON JOSEPH KELEMEN, Defendant-Appellant.

          Argued and submitted January 7, 2019

          Douglas County Circuit Court 16CR82538 William A. Marshall, Judge.

          Sara F. Werboff, 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.

          Chris Perdue, 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 a judgment revoking his probation. The trial court revoked defendant's probation after finding that, by failing to comply with his probation officer's repeated directives to complete work crew, defendant violated the statutorily required general condition of his probation requiring him to "report as required and abide by the direction of the supervising offcer." ORS 137.540(1)(m). The state concedes that the court's decision was based on a mistaken understanding of ORS 137.540(1)(m), but argues that, based on the trial court's statement that it found defendant was not amenable to supervision and that the purposes of probation were not being met, the Court of Appeals may affirm on the ground that the court's revocation is supported by an independent and adequate basis. Held: In view of State v. Hardges, 294 Or.App. 445, 432 P.3d 268 (2018), defendant's failure to complete his work crew sanction did not constitute a violation of his conditions of probation. When a probation officer's directive is unrelated to the defendant's reporting obligation, the defendant's failure to abide by the directive, as a matter of law, is not a violation of the general condition of probation established by ORS 137.540(1)(m). Additionally, under OAR 213-010-0001, the trial court was not permitted to exercise its discretionary authority [296 Or. App.185] to revoke probation absent the finding of a new crime or other violation of the conditions of probation.

         [296 Or.App. 186] LAGESEN, P. J.

         Defendant appeals a judgment revoking his probation. The trial court revoked defendant's probation after finding that, by failing to comply with his probation officer's repeated directives to complete work crew, defendant violated the statutorily required general condition of his probation requiring him to "[r]eport as required and abide by the direction of the supervising officer." ORS 137.540(1)(m). In view of our recent opinion in State v. Hardges, 294 Or.App. 445, 432 P.3d 268 (2018), we conclude that the court's revocation decision was based on a mistaken understanding of ORS 137.540(1)(m). See State v. Jury, 185 Or.App. 132, 136, 57 P.3d 970 (2002), rev den, 335 Or. 504 (2003) (explaining that error is determined based on the law that exists at the time of appeal rather than the time of the trial court's ruling). The state-correctly-concedes the point under Hardges.

         The question is whether we may affirm nonetheless. The trial court also stated that it found that defendant was not amenable to supervision and that the purposes of probation were not being met. The state contends that, based on those statements, we may affirm on the ground that the court's revocation determination is supported by an independent and adequate basis. Defendant contends that we may not do so for several reasons. Based on our review of the record and applicable law, we agree with defendant. We therefore reverse and remand.

         OAR 213-010-0001 makes the decision to revoke probation in a felony case a discretionary matter for the trial court. It states that "[t]he decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity." OAR 213-010-0001. Even so, statutes and administrative rules set boundaries on a trial court's discretionary revocation authority. Thus, to the extent that a court's discretionary decision to revoke probation turns on the interpretation or application of a statute or administrative rule, we review the court's revocation decision for legal error. Hardges, 294 Or.App. at 448.

         [296 Or.App. 187] The pertinent facts are largely procedural and not disputed. Defendant pleaded no contest to charges of aggravated harassment, ORS 166.070, and interfering with a firefighter or EMT, ORS 162.257. The trial court sentenced him to probation on the harassment charge, and 30 days of jail on the other charge. The court imposed the general conditions of probation identified in ORS 137.540, including the general condition that defendant "[n]ot use or possess controlled substances except pursuant to a medical prescription," ORS 137.540(1)(b), and the general condition that defendant "[r]eport as required and abide by the direction of the supervising officer," ORS 137.540(1)(m). The court also imposed a number of special conditions of probation, including the condition that defendant" [r]efrain from knowingly associating with persons who use or possess controlled substances illegally."

         Three months or so after defendant was sentenced, his probation officer directed him to take a drug test; the test was positive for opiates and THC. Defendant's probation officer sanctioned him with four days of work crew. Defendant failed to complete the sanction. His probation officer gave him a second chance to do so. Defendant did not avail himself of the opportunity. Around the same time, defendant's probation officer received word from a police officer that defendant had been allowing a person on supervision for controlled substance offenses, Easom, to stay with him.

         Defendant's probation officer then recommended revoking defendant's probation, and the state initiated this probation revocation proceeding. The probation violation report alleged that defendant ...


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