Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Ramirez

Court of Appeals of Oregon

July 31, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
HUMBERTO ARRELLANO RAMIREZ, Defendant-Appellant.

          Submitted May 30, 2019.

          Marion County Circuit Court 16CR64672; Daniel J. Wren, Judge pro tempore.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant was found in violation of his probation for failing to appear in court on a certain date to show proof of completion of an anger management assessment, which the trial court had ordered him to do. The trial court consequently entered a judgment extending defendant's probation and imposing a probation-violation fee and court-appointed attorney fees. Defendant appeals, arguing that the court erred in finding him in violation of probation because the court appearance was not a condition of his probation. The state responds that, because the order to appear was "directly related" to one of defendant's special probation conditions-that he enter and successfully complete an anger management program-the court did not err. Held: The trial court erred by finding defendant in violation of probation for conduct that did not constitute a violation of a general or special condition of defendant's probation imposed by the court. Although a court may, in some circumstances, extend a defendant's probation term without finding a probation violation, under ORS 137.540(12)(a), the court may not impose a probation-violation fee without such a finding.

         Reversed and remanded.

         [298 Or.App. 597] HADLOCK, P. J.

         Defendant appeals from a judgment finding him in violation of his probation, extending the period of probation, and imposing a probation-violation fee and court-appointed attorney fees. He assigns error to the court's finding that he violated his probation by failing to appear in court on a specific date, contending that the court erred because the court appearance was not a condition of his probation stated in the judgment. The state responds that the trial court ruled correctly because the requirement to appear was ordered by the sentencing court and it was "directly related" to one of defendant's stated probation conditions. As explained below, we reverse and remand.

         Defendant was convicted of fourth-degree assault constituting domestic violence and sentenced to 18 months' bench probation. The resulting judgment (the underlying judgment) imposed several special conditions of probation, including that defendant "[e]nter and successfully complete Anger Management Program." On the same date that the underlying judgment was entered, the court also signed and entered a form order referring defendant to Corrections Associates, Ltd. (CAL), for an anger management assessment and directing defendant to "show proof of completion" at the courthouse on October 10, 2017, at 10:00 a.m. (Capitalization altered.)

         The state subsequently moved the court to revoke defendant's probation, alleging that defendant failed to appear on October 10 as ordered.[1] The state did not allege that defendant had failed to enter or successfully complete an anger management program, as specified in his special condition of probation. At the hearing on the state's motion, defendant did not dispute that he had failed to appear in court on October 10; rather, he argued that he was not in violation of his probation because the conditions of his probation specified in the underlying judgment did not require him to do so. The court acknowledged that the underlying judgment did not include the requirement to appear, but noted that the CAL referral order did, and that defendant [298 Or.App. 598] had notice of that requirement. Consequently, the court found that defendant was in violation of his probation for "Failure to Appear in Court," and it entered a judgment extending defendant's probation, re-referring him to CAL, and ordering him to pay a $25 probation-violation fee and $221 in court-appointed attorney fees.

         Defendant appeals, assigning error to the trial court's finding that he violated his probation. Citing ORS 137.540, he argues that the court erred in finding that he violated his probation when he failed to appear in court on October 10, 2017, because that requirement was not a general or special condition of his probation included in the underlying judgment. The state responds that, because the court's order to appear was "directly related" to defendant's special probation condition that he enter and complete an anger management program, defendant violated that condition when he failed to appear. We agree with defendant.

         Although the parties do not discuss it, we begin by observing that the trial court has discretionary authority under ORS 137.545(1)[2] to extend probation without finding that the probationer has violated his or her probation. State v. Laizure, 246 Or.App. 747, 752, 268 P.3d 680 (2011), rev den, 352 Or. 33 (2012) (so holding); State v. Stanford, 100 Or.App. 303, 306, 786 P.2d 225 (1990) (same).[3] See also State v. Kelemen, 296 Or.App. 184, 193, 437 P.3d 1225 (2019) (recognizing that, although the trial court erred in revoking the defendant's probation for conduct that was not a condition of probation, it retained discretionary authority under ORS 137.545(1) to extend the probationary period). In exercising its discretion to extend probation, the court must, however, determine that "the purposes of probation are not being [298 Or.App. 599] served," balancing considerations of public safety and the rehabilitation of the probationer. Laizure, 246 Or.App. at 752. If-as was the case in Laizure and Stanford-the record demonstrates a permissible exercise of the court's discretion under those principles, we need not decide whether the court erred in finding a probation violation. Laizure, 246 Or.App. at 753-54 (unnecessary to address whether violation finding was legally correct where record reflected permissible exercise of court's limited discretion to extend the defendant's probation); Stanford, 100 Or.App. at 306-07 (unnecessary to determine whether court erred in finding probation violation, where record reflected that court's modification and extension of probation was directed toward the defendant's rehabilitation).

         Here, however, in addition to extending defendant's probationary period, the trial court also imposed a probation-violation fee, which hinges on the court's finding of a probation violation. ORS 137.540(12)(a) ("If the court determines that a defendant has violated the terms of probation, the court shall collect a $25 fee from the defendant * * *. The fees imposed under this subsection become part of the judgment and may be collected in the same manner as a fine.").[4] Consequently, in this case, we must answer the question raised by the parties-whether the court erred in finding a probation violation based on a court order not included as a general or special condition of probation. Cf State v. Daves,145 Or.App. 443, 445, 930 P.2d 265, rev den,337 Or. 83 (1996) (affirming judgment continuing probation with modified ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.