State ex rel Walraven v. Dept. of Corrections ( 2015 )

No. 41 October 22, 2015 71
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE ex rel TREVOR TROY WALRAVEN,
Plaintiff-Relator,
v.
DEPARTMENT OF CORRECTIONS,
Defendant.
(S062747)
En Banc
Original proceeding in mandamus.*
Argued and submitted June 18, 2015.
Andy Simrin, Andy Simrin PC, Portland, argued the
cause and filed the brief for the plaintiff-relator.
Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for the defendant.
With him on the briefs were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
WALTERS, J.
Peremptory writ of mandamus to issue. The Department
of Corrections shall prepare a proposed release plan and
submit that plan to the circuit court in accordance with
ORS 420A.206(1)(a). The plan is due 45 days from the date
of issuance of the peremptory writ of mandamus.
______________
* On petition for a writ of mandamus from an order of Josephine County
Circuit Court, Timothy Gerking, Judge.
72 State ex rel Walraven v. Dept. of Corrections
Case Summary: Relator was sentenced to life imprisonment with a 30-year
mandatory minimum period of incarceration after committing murder in 1998.
The sentencing court held a second look hearing on September 11 and 12, 2014,
pursuant to ORS 420A.203. The court determined that conditional release was the
appropriate disposition, entered a preliminary order of conditional release, and
directed the Department of Corrections to prepare and submit a proposed release
plan within 45 days following the completion of the hearing. The state appealed
the sentencing court’s order of conditional release, and the department argued
that its obligation to prepare and submit a proposed plan of release was therefore
automatically stayed under ORS 138.160. Relator filed a petition for a writ of
mandamus, asking the Supreme Court to compel the Department of Corrections
to prepare and submit a proposed release plan under ORS 420A.206(1)(a). Held:
ORS 138.160 does not apply to preliminary orders of conditional release entered
in second look proceedings, and that the department’s obligation to prepare a
proposed release plan is not stayed under the statute.
Peremptory writ of mandamus to issue. The Department of Corrections shall
prepare a proposed release plan and submit that plan to the circuit court in
accordance with ORS 420A.206(1)(a). The plan is due 45 days from the date of
issuance of the peremptory writ of mandamus.
Cite as 358 Or 71 (2015) 73
WALTERS, J.
Relator was a youth, 14 years old, when he mur-
dered Hull in 1998. Relator was waived into adult court
pursuant to ORS 419C.352 and convicted of aggravated
murder. The court sentenced relator to life imprisonment
with a 30-year mandatory minimum period of incarcera-
tion. State v. Walraven, 214 Or App 645, 650, 167 P3d 1003
(2007), rev den, 344 Or 280 (2008). After relator had served
roughly half of that period, he obtained a “second look”
hearing under ORS 420A.203. The trial court entered a
preliminary order of conditional release, but the state
appealed that order to the Court of Appeals. That appeal is
pending and is not the subject of this mandamus proceed-
ing. State v. Walraven (CA A158001). This proceeding con-
cerns the trial court’s related “direction” to the Department
of Corrections, pursuant to ORS 420A.206(1)(a), requiring
it to prepare a proposed release plan. Relator sought, and
this court issued, an alternative writ of mandamus order-
ing the department to comply with the trial court’s direc-
tion or to show cause for not doing so. The department, how-
ever, contends that its obligation to comply is automatically
stayed under ORS 138.160.1 For the reasons that follow, we
disagree and order the department to comply with the trial
court’s direction to prepare and submit a proposed plan of
release.
Before we discuss the facts in this case in greater
detail, we think it helpful to outline the second look process
and its purpose. The second look process provides an oppor-
tunity for selected persons who were under 18 years of age at
the time of the commission of an offense to have a sentencing
court determine whether they should serve their original
sentences or be granted conditional release. ORS 420A.203.
Among the persons eligible for a second look hearing are
1
ORS 138.160 provides:
“An appeal taken by the state stays the effect of the judgment or order in
favor of the defendant, so that the release agreement and, if applicable, the
security for release, is held for the appearance and surrender of the defen-
dant until the final determination of the appeal and the proceedings conse-
quent thereon, if any; but if the defendant is in custody, the defendant may
be released by the court subject to ORS 135.230 to 135.290, pending the
appeal.”
74 State ex rel Walraven v. Dept. of Corrections
those who, like relator,2 were under 18 years of age at the
time of the commission of the offense, who committed the
offense on or after June 30, 1995, and who were sentenced
to a term of imprisonment of at least 24 months following
waiver into adult court pursuant to ORS 419C.352.3 ORS
420A.203(1)(a).
The second look process entails two steps, and an
appeal is permitted at each one. At the first step, a sentenc-
ing court holds a hearing and considers whether an eligible
person is entitled to conditional release. ORS 420A.203(4).
At the second step, the court adopts a release plan and
enters a final order of conditional release. ORS 402A.206.
The first step of the second look process is set
out in ORS 420A.203. It begins when the Department of
Corrections files a notice and request for a second look hear-
ing.4 The department is required to file such a notice “[n]o
more than 120 days and not less than 60 days before the
date on which a[n eligible] person has served one-half of the
sentence imposed * * *.” ORS 420A.203(2)(a). The sentencing
court must then schedule a hearing “not more than 30 days
after the date on which the [eligible] person will have served
one-half of the sentence imposed or such later date as is
2
The state informs us that it will argue in its appeal to the Court of Appeals
that relator is not eligible for a second look hearing. That issue is not before us,
and we do not consider it.
3
ORS 419C.352 provides:
“The juvenile court, after a hearing, except as provided in ORS 419C.364
or 419C.370, may waive a youth under 15 years of age at the time the act was
committed to circuit court for prosecution as an adult if:
“(1)  The youth is represented by counsel during the waiver proceedings;
“(2)  The juvenile court makes the findings required under ORS 419C.349
(3) and (4); and
“(3)  The youth is alleged to have committed an act or acts that if commit-
ted by an adult would constitute one or more of the following crimes:
“(a) Murder or any aggravated form thereof under ORS 163.095 or
163.115;
“(b)  Rape in the first degree under ORS 163.375 (1)(a);
“(c)  Sodomy in the first degree under ORS 163.405 (1)(a); or
“(d)  Unlawful sexual penetration in the first degree under ORS 163.411
(1)(a).”
4
If the eligible person is in the physical custody of the Oregon Youth
Authority, then the Authority is required to file the notice. ORS 420A.203(2)(a).
Cite as 358 Or 71 (2015) 75
agreed upon by the parties.” ORS 420A.203(2)(b). The par-
ties to the proceeding are the eligible person and the state.
ORS 420A.203(3)(a). At the hearing, the eligible person has
the burden of proving by clear and convincing evidence that
the person has been rehabilitated and reformed; that, if con-
ditionally released, the person would not be a threat to the
safety of the victim, the victim’s family, or the community;
and that the person would comply with the release condi-
tions. ORS 420A.203(3)(k). At the conclusion of the hear-
ing, the court may order one of two dispositions under ORS
420A.203(4)(a): (1) under subparagraph (A), that the person
serve the entire remainder of the sentence of imprisonment,
or (2) under subparagraph (B), that the person be condition-
ally released under ORS 420A.206 at such time as the court
may order. To issue a preliminary order of conditional release
under ORS 420A.203(4)(a)(B), the court must find that the
eligible person has been rehabilitated and reformed, is not a
threat to the victim, the victim’s family, or the community,
and will comply with the conditions of release.
The state, as well as the eligible person, may
appeal a preliminary order of conditional release entered
under ORS 420A.203. ORS 420A.203(6). The appellate
court’s review is limited to claims that the disposition is
not authorized by ORS 420A.203, that the court failed to
comply with the requirements of that section, or that the
court’s findings are not supported by substantial evidence
in the record. Id.The second step of the second look process is set
out in ORS 420A.206. When a sentencing court determines
that conditional release is appropriate, ORS 420A.206(1)(a)
requires the court to direct the department to prepare and
submit a proposed release plan. The department must pre-
pare and submit such a plan no later than 45 days after
receipt of the court’s direction to do so:
“If, after the hearing required by ORS 420A.203, the
court determines that conditional release is the appro-
priate disposition, the court shall direct the Department
of Corrections to prepare a proposed release plan. The
Department of Corrections shall submit the release plan to
the court no later than 45 days after receipt of the court’s
direction to prepare the plan.”
76 State ex rel Walraven v. Dept. of Corrections
ORS 420A.206(1)(a). If the court does not approve the pro-
posed release plan, then the court must return the plan to
the department with recommended modifications and addi-
tions, and the department must submit a revised plan. ORS
420A.206(1)(b). If the court does not approve the revised
plan, then the court may make any changes that the court
deems appropriate and prepare a final release plan. ORS
420A.206(1)(c). When the court has approved a final release
plan, the court shall enter a final order conditionally releas-
ing the eligible person. ORS 420A.206(2).
The state, the department, and the eligible person
may appeal from a final order of conditional release. ORS
420A.206(6)(a). The appellate court’s review is limited to
claims that the court failed to comply with the requirements
of law in ordering the conditional release. Id. The person
conditionally released remains within the jurisdiction of the
sentencing court for the period of the conditional release.
ORS 420A.206(3)(a).
In this case, the department did not file the notice
that would have initiated a second look proceeding on its
own initiative or at relator’s request. Consequently, relator
submitted a motion to the sentencing court asking that it
conduct a second look hearing. When the court denied that
motion, relator filed two petitions in this court for writs of
mandamus—one directed to the department and the other
to the circuit court. This court issued alternative writs
of mandamus to both respondents. The sentencing court
agreed to schedule the hearing, relator moved to dismiss
both writs, and this court granted those motions.
Pursuant to ORS 420A.203(3), the sentencing court
held a second look hearing on September 11 and 12, 2014.
The court took testimony from 13 witnesses and made the
following findings:
“The witnesses, I think one witness * * * characterized
Mr. Walraven as a unique young man who has greatly prof-
ited from his years in incarceration. And I would say that
not only he has profited by taking the right course after
his incarceration by seeking every conceivable means of
bettering himself, he’s also bettered the lives of those who
have been around him and those that he is concerned for.
Cite as 358 Or 71 (2015) 77
In that regard we heard testimony from former inmates,
educators, psychologists, staff at the Oregon Department
of Corrections, many of these folks testified that they had
agreed to testify totally voluntarily. They weren’t under
subpoena, and that they have never testified before in a
proceeding of this nature. They’ve never testified on behalf
of an inmate before. Nevertheless they had agreed to come
forward because they felt so strongly that Mr. Walraven
deserved this second look and deserves this, this condi-
tional release that he’s requesting. And these folks have
come forward because of all of the various things that
Mr. Walraven has done during the course of his incarcera-
tion to better himself and the lives of others around him by
obtaining his high school diploma, * * * by being involved in
this Lifer’s Club, becoming [its] youngest president which
he is now in his second term, by gaining the trust and con-
fidence of the prison system, by placing him in the laundry
where he has achieved kind of a second in command respon-
sibility. And during that period he’s acquired mechanical
skills, electrical skills, computer skills, he’s worked in the
Inside Outside Program as a teaching assistant, and he’s
also been involved in co-teach, co-teaching several of the
classes. He’s been in the Family First Program, parent-
ing classes, the Freedom Road Program, he helped teach
a course on divided society as a teaching assistant. He
was involved in the ACE Program, the Another Chance at
Education. He took a class on non-violent communication
skills in which he had to, I believe[,] come to terms ver-
bally with the crimes that he’s committed. He’s even head
of a grant writing team to assist some of these programs
in getting [the] financial aid so that those programs can
continue. He’s served as a positive influence in the life of
his * * * former girlfriend’s daughter * * *. And he’s been an
informal mentor for many of the inmates in the institution.
These are all extraordinary achievements. So * * *, I can
only conclude that Mr. Walraven is unique. He’s unusual,
remarkable in regard to the efforts he’s displayed to make
himself a better person, and * * * to help others.”
The court further explained:
“I thought of one other factor that the Court should con-
sider[,] and that is for those inmates, for those juveniles
who are still in prison. What kind of message would be sent
to them if Mr. Walraven is not granted the relief requested?
I mean if not him, then who would be eligible?”
78 State ex rel Walraven v. Dept. of Corrections
On September 15, 2014, the court signed an
order that included each of the findings required by ORS
420A.203(4)(a)(B) and recited that the court had “deter-
mined by clear and convincing evidence that conditional
release is the appropriate disposition* * *.” “[I]n accordance
with ORS 420A.206(1)(a),” the court also directed the
department to prepare a proposed release plan and submit
it to the court no later than 45 days following the completion
of the hearing. The court provided that the recommended
release date for relator would be “immediately following the
Court’s approval of [relator’s] final release plan as provided
in ORS 420A.206 and entry of the Court’s Final Order of
Conditional Release.”
On October 15, 2014, the state filed a notice of
appeal, citing ORS 420A.203(6) as the basis for appellate
jurisdiction. As noted, that subsection permits the state to
appeal a preliminary order of conditional release entered
under ORS 420A.203.
On October 30, 2014, counsel for relator contacted
counsel for the department to inquire whether the release
plan required by ORS 420A.206 would be forthcoming. The
department responded that it was not required to prepare a
release plan because the state had appealed the preliminary
order of conditional release and, the department contended,
its obligation to prepare a release plan was automatically
stayed under ORS 138.160.
Relator then filed a petition for a writ of manda-
mus in this court, and we issued an alternative writ direct-
ing the department to comply with the sentencing court’s
order or show cause for not doing so. The department did
not submit a release plan; it continues to assert that its
obligation to do so is stayed by operation of law under ORS
138.160.
We begin our analysis with the text of ORS 138.160:
“An appeal taken by the state stays the effect of the judg-
ment or order in favor of the defendant, so that the release
agreement and, if applicable, the security for release, is held
for the appearance and surrender of the defendant until the
final determination of the appeal and the proceedings con-
sequent thereon, if any; but if the defendant is in custody,
Cite as 358 Or 71 (2015) 79
the defendant may be released by the court subject to ORS
135.230 to 135.290, pending the appeal.”
The state contends that that statute is a statute of general
applicability and that it provides for an automatic stay in all
criminal cases in which the state is the appellant. Relator
contends that the automatic stay provided by that statute
is limited to criminal appeals authorized in ORS chapter
138—the chapter in which it is located—and, more specif-
ically, to appeals by the state that are authorized by ORS
138.160.
Relator explains that ORS 138.160 is not the source
of the state’s authority to appeal a preliminary order of con-
ditional release entered pursuant to ORS 420A.203. That
authority is found, instead, in one of the second look stat-
utes, ORS 420A.203(6). That statute permits the state to
appeal a preliminary order of conditional release, but nei-
ther that statute nor any other provision in the second look
statutes provides for a stay during the pendency of a state’s
appeal. Relator contends that, when the legislature enacted
ORS 138.160, it did not intend the automatic stay provided
in that statute to apply to orders entered in second look pro-
ceedings, which did not exist at that time. The legislature
enacted the automatic stay provision currently codified as
ORS 138.160 in 1864; it did not enact the second look stat-
utes until 1995, more than 100 years later. 1995 Or Laws,
ch 422, §§ 52-56. Thus, the relevant question, as relator
sees it, is the legislature’s intent in 1995. Relator argues
that, when the legislature adopted the second look process
in 1995, it did not provide for an automatic stay during the
pendency of an appeal pursuant to ORS 420A.203 and did
not intend that a preliminary order of conditional release be
subject to an automatic stay under ORS 138.160.
The state does not take issue with the enactment
history on which relator relies, and it acknowledges that
the 1864 Legislative Assembly could not have had second
look proceedings in mind when it enacted the statute now
codified as ORS 138.160. However, the state argues, when
the legislature enacted that statute, it used wording that
imposes an automatic stay in all criminal proceedings,
including later-enacted criminal proceedings such as sec-
ond look proceedings.
80 State ex rel Walraven v. Dept. of Corrections
The state is correct that ORS 138.160 is broadly
worded. Looking at its first phrase alone, it appears to gov-
ern all appeals “taken by the state.” ORS 138.160. However,
as the state acknowledges, ORS 138.160 then goes on to pro-
vide that such appeals stay “the effect of the judgment or
order in favor of the defendant,” indicating that the judg-
ment or order to which the statute applies must be a judg-
ment or order in a case in which the parties are the state
and a “defendant”—generally a criminal action.
We also glean from the statute’s text a further lim-
itation on the nature of the judgment or order to which ORS
138.160 applies: ORS 138.160 provides that “[a]n appeal
taken by the state stays the effect of the judgment or order
in favor of the defendant * * *.” (Emphasis added.) “The”
judgment or order to which the statute refers must be the
particular judgment or order from which the state takes its
appeal.
An examination of the 1864 version of the automatic
stay provision confirms that interpretation. In 1864, Section
235 of the Criminal Code of the Deady Code provided:
“An appeal taken by the state, if taken within the term
at which the judgment or order appealed from is given or
made, stays the effect of such judgment or order in favor
of the defendant, so that his bail or money deposited in
lieu thereof, is holden for the appearance and surrender of
the defendant, until the final determination of the appeal
and the proceedings consequent thereon, if any; but if the
defendant be in custody, he may, in the discretion of the
court, be admitted to bail, pending the appeal, on his own
undertaking.”
General Laws of Oregon, Crim Code, ch XXIII, § 235, p 481
(Deady 1845-1864) (emphasis added). Under that predeces-
sor version of ORS 138.160, a state’s appeal stays the effect
of such judgment or order, and the word “such” refers back
to the judgment or order appealed from. Although the cur-
rent version of the statute no longer uses the word “such,”
its use of the word “the” performs the same function, and we
conclude that the stay that the current version provides is a
stay of the “effect” of the judgment or order from which the
state appeals.
Cite as 358 Or 71 (2015) 81
Accordingly, the parties correctly focus their argu-
ments on whether the automatic stay provision of ORS
138.160 applies to the preliminary order of conditional
release from which the state appeals. For the reasons that
follow, we conclude that it does not.
First, as explained below, the preliminary order
of conditional release from which the state appeals was
not issued in the kind of proceeding to which ORS 138.160
applies—a criminal action in which the parties are the state
and a “defendant.” In a second look hearing under ORS
420A.203, the parties are the eligible “person” and the state.
ORS 420A.203(3)(a). Although an eligible “person” likely
would have been a defendant in the underlying criminal
action in which the “person” was convicted and sentenced,
the statute does not use that criminal designation to refer
to those who are eligible for, or are parties to, a second look
hearing.5
Neither is a second look hearing a proceeding in
which a defendant is prosecuted for a crime. The purposes
and procedures for a second look hearing are different from
those for a criminal action. In a criminal action, the state
seeks to prove that a defendant committed a crime; a defen-
dant has a right to trial by jury, and the state must prove
the defendant’s guilt beyond a reasonable doubt. In a second
look hearing, the eligible person seeks to prove that he or
she has been rehabilitated; the hearing is before the court,
and the standard of proof is clear and convincing evidence.
ORS 420A.203(3)(k). Thus, although a second look hear-
ing is certainly related to a criminal action, it is not itself a
criminal action subject to ORS 138.160.
Additionally, we have no reason to think that the
legislature intended ORS 138.160 to apply to orders in pro-
ceedings that are related to, but are not themselves, crim-
inal actions. In other circumstances in which a proceed-
ing is related to, but is not itself, a proceeding in which a
5
We note that, in this case, the pleadings in the second look proceeding were
filed using the case number in the underlying criminal action. Relator was the
defendant in that underlying action and, in the trial court’s preliminary order of
conditional release, was designated as the “defendant,” not as an eligible “per-
son.” However, we look to the statute, rather than to the trial court’s practice, in
determining legislative intent.
82 State ex rel Walraven v. Dept. of Corrections
defendant is being prosecuted for a crime, the legislature
has not relied on ORS 138.160 to determine the effect of a
judgment or order during the pendency of a state’s appeal.
Instead, the legislature has enacted separate provisions
addressing that issue. For instance, ORS 138.650 permits
the state to appeal a judgment in a post-conviction proceed-
ing, and ORS 138.650(3) specifically provides the circum-
stances under which the effect of such a judgment will be
stayed. Similarly, ORS 147.535 grants the state standing to
appeal an order in a victims’ rights case, and ORS 147.542
provides a renewable 21-day stay in such cases for “all mat-
ters that directly impact, or are directly impacted by, the
order on appeal.” ORS 147.542(1).
Also significant is the fact that this court and the
Court of Appeals have construed various appeal provisions
found in ORS chapter 19, and not those found in chapter
138, as applicable to proceedings that are related to under-
lying criminal proceedings but are not themselves crimi-
nal in nature. See, e.g., State v. K.P., 324 Or 1, 921 P2d 380
(1996) (proceeding to set aside conviction and seal records is
not criminal action and not appealable under ORS chapter
138; it is a “special statutory proceeding” appealable under
former ORS 19.010(4) (1995), renumbered as ORS 19.205(5)
(2003)); Moen v. Washington County, 86 Or App 639, 740
P2d 802 (1987) (motion for return of court-held funds, while
made in criminal proceeding, is in nature of civil proceed-
ing and former ORS 19.010(2)(c) (1995), renumbered as ORS
19.205(3)(2003), governs); 6 but see State v. Johnson, 254 Or
App 447, 295 P3d 677 (2013) (post-judgment motion for DNA
testing not appealable under ORS 19.205(3)).
There is also a second reason for our conclusion that
ORS 138.160 is inapplicable to preliminary orders of con-
ditional release. As we will explain, a preliminary order of
conditional release does not have the type of “effect” in favor
of a defendant that ORS 138.160 is intended to stay.
The history of ORS 138.160, once again, provides a
starting point for our analysis. As noted, ORS 138.160 was
6
ORS 19.205 was also amended in 2003, but the amendments do not affect
our analysis.
Cite as 358 Or 71 (2015) 83
originally enacted as section 235 of the Criminal Code of
the Deady Code. Another section of the code—Section 226—
prescribed the circumstances in which the state was per-
mitted to appeal. Section 226 permitted the state to take an
appeal from “the judgment or order of the circuit court upon
a judgment for the defendant on a demurrer to the indict-
ment,” and from “an order of the court, arresting the judg-
ment.” General Laws of Oregon, Crim Code, ch XXIII, § 226,
p 480 (Deady 1845-1864). Section 235 of the Criminal Code
of the Deady Code provided for an automatic stay such that,
if the defendant were not in custody, then the defendant
would remain free, subject only to existing security provi-
sions that would remain in effect pending appeal. However,
if the defendant were in custody, then the defendant would
remain incarcerated unless the trial court determined that
the defendant should be released pending appeal. Because
the state could appeal only judgments and orders that had
an immediate effect on a defendant’s custodial status, the
legislature enacted stay provisions that determined the
effect of an appeal on the defendant’s custodial status.
The effect that a preliminary order of conditional
release has on an eligible person is different. When the
court enters such an order, there is no immediate effect
on an individual’s custodial status. Rather, what follows is
the second step of the second look process—the preparation
and approval of a proposed release plan. Only at the end of
that process may an eligible person be released from cus-
tody. Certainly, a preliminary order of conditional release
is favorable to an eligible person, but it does not have the
immediate effect on an eligible person’s custodial status
that ORS 138.160 addresses.7
The state does not contest the historical fact that, as
originally enacted, the automatic stay provision in Section
235 of the Criminal Code of the Deady Code addressed the
effects of judgments and orders that the state could appeal
under Section 226, and that those judgments and orders had
7
Neither does a preliminary order of conditional release under ORS 420A.203
have a direct effect on the department. It is the sentencing court’s direction to
the department under ORS 420A.206(1), together with the requirements set out
in that statute, that impose the obligations to prepare and submit a proposed
release plan.
84 State ex rel Walraven v. Dept. of Corrections
a direct effect on a defendant’s custodial status. The state
argues, however, that the “effect” of the judgment or order
in favor of the defendant to which ORS 138.160 now refers is
not by its terms limited to an effect on custodial status, and
the state is now permitted to take appeals in circumstances
in addition to those in place in 1864. As a result, the state
contends, the automatic stay provided by ORS 138.160 now
applies to effects beyond those effects on custodial status to
which it was originally intended to apply.
The problem with that argument, however, is that,
as written, ORS 138.160 permits a trial court to release
a defendant who is in custody during the pendency of an
appeal. Again, the text of ORS 138.160 provides:
“An appeal taken by the state stays the effect of the judg-
ment or order in favor of the defendant, so that the release
agreement and, if applicable, the security for release, is
held for the appearance and surrender of the defendant
until the final determination of the appeal and the proceed-
ings consequent thereon, if any; but if the defendant is in
custody, the defendant may be released by the court subject
to ORS 135.230 to 135.290, pending the appeal.”
The final clause of ORS 138.160 provides, as the state
terms it, an “escape clause.” Under that escape clause, a
trial court may release a defendant from custody pending
resolution of a state’s appeal. But if ORS 138.160 applies to
a preliminary order of conditional release entered pursu-
ant to ORS 420A.203, then so does its escape clause—and
it is simply not plausible that the legislature intended that
result.
That is so because application of the escape clause
to preliminary orders of conditional release would be incon-
sistent with the structure and function of the second look
process. ORS 420A.206 provides an elaborate process for
the preparation of a release plan and for the release of an
eligible person under conditions crafted by the department
and approved by the trial court, or crafted by the trial court
itself. It permits an eligible person to be released from cus-
tody only when a final order of conditional release has been
entered. ORS 420A.206(2). It is clear that the legislature did
not intend that a trial court release an eligible person from
Cite as 358 Or 71 (2015) 85
custody at the first step of a second look proceeding when a
release plan is not yet in place.8 It follows that the legisla-
ture also did not intend the escape clause or ORS 138.160
to apply to a preliminary order of conditional release under
ORS 420A.203.
It also follows that the legislature did not intend
ORS 138.160 to apply to the department’s obligation to pre-
pare and submit a release plan under ORS 420A.206(1).
If we consider those obligations to be an “effect” of a trial
court’s preliminary order of conditional release, then—
because we have concluded that ORS 138.160 does not apply
to such orders—we also conclude that that statute does not
apply to the department’s obligations to prepare and submit
a release plan.
If, instead, we consider those obligations to be inde-
pendent obligations, we also conclude that ORS 138.160 does
not apply to them, but for different reasons. The first is that
ORS 138.160 stays only appealable judgments and orders,
and a trial court’s direction to the department to prepare
and submit a proposed release plan is not itself an appeal-
able order. No statute grants the state authority to appeal
from such a direction.9
A second reason is that a trial court’s direction to
the department to prepare a proposed release plan is not
an issue that is subject to review in an appeal of another
appealable order. ORS 420A.203(6) grants the state author-
ity to appeal from a preliminary order of conditional release,
but review is limited to claims that the disposition was not
authorized by ORS 420A.203, that the court failed to com-
ply with requirements of that section, or that the findings
of the court were not supported by substantial evidence in
the record. ORS 420A.206(6) grants the state authority to
appeal from a final order of conditional release, but limits
8
In this case, relator argued in the trial court that ORS 138.160 did not
apply to the preliminary order of conditional release, but that if it did, the court
should release him from custody under its “escape clause.” The court denied rela-
tor’s motion, and relator does not challenge that ruling.
9
In this case, the trial court’s direction to the department was included in
the trial court’s order of conditional release, and the trial court ordered, rather
than directed, the department to prepare a proposed plan of release. Those facts
do not make the court’s direction appealable.
86 State ex rel Walraven v. Dept. of Corrections
review of such an order to claims that the court failed to
comply with the requirements of law in ordering the con-
ditional release. No statute permits an appellate court to
review the trial court’s issuance of a direction to the depart-
ment under ORS 420A.206(1).
Finally, although ORS 420A.203(6) provides for
an appeal of a preliminary order of conditional release, it
makes the department’s obligations to prepare and submit
a release plan subject to statutory deadlines that do not,
by their terms, vary based on whether such an appeal is
taken. For example, after a court enters a preliminary order
of conditional release, the court must direct the department
to submit a release plan “no later than 45 days after receipt
of the court’s direction to prepare the plan.” (Emphasis
added.) ORS 420A.206(1)(a). That statute does not permit
the department to wait to submit a release plan until 45
days after the effective date of a court’s preliminary order
of conditional release; neither does it provide for a stay of
the department’s obligation. We infer from that structure
that the legislature did not intend that the automatic stay
under ORS 138.160 apply to the department’s obligations to
prepare and submit a release plan.
That conclusion does not mean, however, that there
may not be other authority that permits a trial court, on
request, to exercise discretion to stay the department’s obli-
gations. ORS chapter 19 includes provisions that may per-
mit the trial court to grant a stay,10 and, as this court noted
in 1919,
“[i]t is the general rule that either the lower or appellate
court, according to the circumstances, has inherent power
to grant a stay of proceedings pending an appeal even
where there is no statute entitling a party to such stay.
Where the right to a stay is entirely regulated by statute,
or where the statute prescribes the conditions upon which
it may be obtained or allowed, the courts cannot grant a
stay of proceedings in a case which is not within the stat-
ute, or in the absence of compliance with the prescribed
conditions.”
10
See ORS 19.350 (permitting party to seek discretionary stay).
Cite as 358 Or 71 (2015) 87
Helms Groover & Dubber Co. v. Copenhagen, 93 Or 410, 416,
177 P 935 (1919).11 We limit our decision in this case to the
narrow question presented and decide only that the statute
on which the department relies—ORS 138.160—does not
impose an automatic stay. We do not address whether the
trial court has authority to consider or enter a stay pursuant
to other statutory authority or as an exercise of its inherent
authority.
Peremptory writ of mandamus to issue. The Depart-
ment of Corrections shall prepare a proposed release plan
and submit that plan to the circuit court in accordance with
ORS 420A.206(1)(a). The plan is due 45 days from the date
of issuance of the peremptory writ of mandamus.
11
We also note that ORS 420A.203(4)(a)(B) permits the trial court to order
that the person be conditionally released “at such time as the court may order.”
That provision may, by implication, grant the court authority to vary the time-
lines that apply in a second look proceeding.