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State v. Sparks

Supreme Court of Oregon

April 18, 2019

STATE OF OREGON, Respondent on Review,
v.
PATRICK ALLEN SPARKS, Petitioner on Review.

          Argued and submitted November 1, 2018

          On review from the Court of Appeals (CC 14CR08738, 140331053) (CA A162004 (Control), A162005). [*]

          Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Timothy A. Sylwester, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Jesse Wm. Barton, Salem, fled the brief for amici curiae Oregon Justice Resource Center and Pacifc Sentencing Initiative, LLC.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [364 Or. 697] Case Summary:

         Defendant's probation on three offenses was revoked, and the trial court imposed three consecutive probation violation sanctions. Defendant argued that the court could not impose three sanctions because the trial court should not have found more that two probation violations. Although defendant admitted to using methamphetamine and to writing numerous letters to the victim while in prison, in violation of his conditions of probation, he argued that the multiple letters to the victim should count as only one violation. He argued that if there were only two violations, imposition of three sanctions was impermissible under the sentencing guidelines.

         Held:

         The trial court properly found multiple violations of the condition of probation concerning contact with the victim. The court rejected defendant's argument that he did not receive sufficient notice that the state was alleging multiple violations of that condition, noting that the probation violation report alleged that defendant had sent seven different letters to the victim over the course of several months.

         The decision of the Court of Appeals and the judgments of the trial court are affirmed.

         [364 Or. 698] DUNCAN, J.

         Defendant appealed the trial court's imposition of three consecutive probation revocation sanctions, the Court of Appeals affirmed, and this court allowed defendant's petition for review. On review, defendant argues that, under a provision of the sentencing guidelines, OAR 213-012-0040(2)(b), a trial court must find a separate probation violation for each consecutive probation revocation sanction it imposes.[1] Thus, according to defendant, in order for the trial court to impose three consecutive sanctions as it did, it had to find three separate violations.

         We need not, and do not, address defendant's argument regarding OAR 213-012-0040(2)(b), because the trial court found ten separate violations. Specifically, the trial court found one violation of a condition that defendant not use illegal drugs and nine violations of a condition that defendant not contact the victim of his crimes. On review, defendant argues that the trial court erred in finding nine violations of the no-contact condition. According to defendant, the state alleged only a single violation of the no-contact condition and, therefore, failed to provide sufficient notice to support a finding of more than one violation of that condition. For the reasons explained below, we reject defendant's argument that the state's notice was insufficient to support the trial court's findings of multiple violations of the no-contact provision. Therefore, we conclude that, even under defendant's interpretation of OAR 213-012-0040 (2)(b), the trial court could find enough separate violations to support the consecutive sanctions it imposed. Accordingly, we affirm.

         We begin with the historical and procedural facts. This appeal involves two criminal cases, which have been consolidated for review. In the first case, defendant was charged with multiple crimes against the victim, TM, with whom he had been in a relationship. Pursuant to a plea agreement, defendant pleaded guilty to one count of felony fourth-degree assault and one count of attempted second-degree [364 Or. 699] assault, each constituting domestic violence. The trial court imposed a presumptive 30-month prison term on the felony fourth-degree assault count. The presumptive sentence on the attempted second-degree assault count was 31 to 36 months' imprisonment but, based on a stipulation by the parties, the trial court imposed a downward departure sentence of 60 months' probation.

         In the second case, defendant was again charged with multiple crimes involving TM. Defendant pleaded guilty to two counts of tampering with a witness. The presumptive sentence for each of those counts was also 31 to 36 months' imprisonment, but the trial court imposed stipulated downward departure sentences of 60 months' probation on each count.

         Shortly after defendant finished serving his prison term on the felony fourth-degree assault, the trial court issued a notice in each of the two cases for defendant to appear for a probation violation hearing. The notices appointed an attorney to represent defendant and directed defendant to contact that attorney. The notices did not specifically allege what conditions of probation defendant had violated. Instead, they stated that "a copy of the allegations and discovery will be provided to you through your attorney." As described more fully below, before the ...


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