and submitted November 1, 2018
review from the Court of Appeals (CC 14CR08738, 140331053)
(CA A162004 (Control), A162005). [*]
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.
Wm. Barton, Salem, fled the brief for amici curiae Oregon
Justice Resource Center and Pacifc Sentencing Initiative,
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
Nelson, and Garrett, Justices. [**]
Or. 697] Case Summary:
probation on three offenses was revoked, and the trial court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.
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
decision of the Court of Appeals and the judgments of the
trial court are affirmed.
Or. 698] DUNCAN, J.
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. 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.
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.
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.
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.
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