State v. Carmickle ( 1988 )

CAMPBELL, J.

We accepted review in this case to determine if a convicted criminal defendant can elect to refuse probation and demand that sentence be imposed. We hold that such a defendant may make such an election. Because of the result we do not reach secondary issues which the defendant raised in his petition for review.

On April 25,1986, the defendant was arrested in this case on the charge of INITIATING A FALSE REPORT to the Eugene Police Department about a stolen car. On May 1, 1986, he was released on his own recognizance to report to his parole officer on a previous conviction. On July 31, 1986, an order was entered revoking the defendant’s recognizance agreement because of his arrest the previous day on a ROBBERY IN THE THIRD DEGREE charge. After that the defendant remained in custody until his trial and conviction on September 30,1986, in this case.

The defendant waived a jury and the trial court found him guilty of INITIATING A FALSE REPORT, which is a Class C misdemeanor with a maximum penalty of 30 days in jail and a fine of $500. ORS 162.375. After the trial court found the defendant guilty, the following occurred:

DEPUTY DISTRICT ATTORNEY: “Your honor, [recital of defendant’s previous criminal record]. The State’s concern is that the defendant be placed on probation in this matter with a requirement that the defendant have no contact with Mr. William Hemphill or any member of his family.”

DEFENDANT’S ATTORNEY: “I would like to address the issue of probation. Mr. Carmickle, by my count, has spent an excess of 30 days that can be credited toward sentence in this case. I would ask the court to, rather than place him on probation, to give him the sentence of, essentially, credit for time served. He is a person who does not do well in a supervised situation; a probationary or parole-type situation. He was paroled in May of this year and at this point in the time his parole status is still in effect.

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“It would be our hope that he would be able to do whatever time the court feels is fair for this type of crime and be done with the case. I realize that the court still has power to impose a financial penalty, if it feels he has some ability to pay, however, given the fact that he stands to be incarcerated for perhaps six months or so on the other charge, * * * I think it would be appropriate to give him a straight sentence, particularly since he has already served the maximum of time possible in custody.”

THE COURT: “I am going to suspend imposition of sentence for five years and I am going to put you on probation to the Corrections Division, and this will be concurrent with any probation.”

DEFENDANT: “I don’t want probation.”

THE COURT: “You don’t have a choice right now! I’m imposing 60 days in the Lane County Jail, with 60 days credit for time served, considered served.”

DEFENDANT: “That’s more than the maximum penalty. The maximum penalty is only 30 days.”

DEFENDANT’S ATTORNEY: “I think that Mr. Carmickle is correct, its a C Misdemeanor.

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THE COURT: “Right you are. OK, 30 days with 30 days credit.”

DEFENDANT: “Your honor, if you’re going to put me on probation, you might as well make it a felony and send me to the joint because I’m not going to do probation.”

THE COURT: “If you don’t do probation then you’re probably going to come back here and I’m going to end up imposing a fine, and you’ll have to pay a fine, but I’m not imposing that at this time.”

DEFENDANT: “Obviously, your honor, all you’re doing is delaying it, if you’re going to give me a fine, give me a fine and get it over with. There is no way that I’m going to make five years probation when I can’t even make a six month parole.

THE COURT: “I’ll give you a copy of this. If you refuse to accept the conditions of probation, then you’ll just have to be back in when you’re out.”

DEFENDANT: “You might as well just get it over with right now.”

THE COURT: “This probably isn’t the best time to discuss it. Think about it a little bit and then we’ll talk about it again when you’re out. The court’s in recess.”

On September 30, 1986, the trial court entered a JUDGMENT AND ORDER OF PROBATION TO THE CORRECTIONS DIVISION. It recited that the “Imposition of sentence is suspended for 5 years.” The only special conditions of probation were: “30 days in the custody of the sheriff with 30 days credit for time served” and “defendant shall not contact, or be in or about the premises of, the victim William J. Hemphill or his family.”¹ It also contained the notation: “Defendant refused to sign.”

The defendant appealed to the Court of Appeals, which affirmed without opinion. State v. Carmickle, 87 Or App 552, 743 P2d 185 (1987).

SCOPE OF REVIEW

Because the State argues that our scope of review in this case is limited, we will first examine that matter.

A criminal defendant has no constitutional right to appeal. Gairson v. Gladden, 247 Or 88, 90, 425 P2d 761 (1967). Appellate jurisdiction is limited and springs from statute. State v. Curran, 291 Or 119, 122, 628 P2d 1198 (1981). “An appeal is not a matter of absolute right, but a statutory privilege.” State v. Endsley, 214 Or 537, 539, 331 P2d 338 (1958).

In this case the defendant’s right to appeal to the Court of Appeals was derived from ORS 138.040, which provides:

“The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(3). Upon an appeal, or cross-appeal, any decision of the court in an intermediate order or proceeding may be reviewed, and any sentence of the court may be reviewed as to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. A judgment suspending imposition or execution of sentence or placing a defendant on probation shall be deemed a judgment on a conviction and shall not be subject to appeal after expiration of the time specified in ORS 138.071 except as may be provided in ORS 138.050 and 138.510 to 138.680. If in the judgment of the appellate court the punishment imposed by the sentence appealed from exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered.”

The state in effect argues that the ORDER OF PROBATION was a “sentence” and that the defendant’s appeal was limited “to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual.”

We disagree. ORS 138.040 specifically provides: “A judgment suspending imposition * * * of sentence or placing a defendant on probation shall be deemed a judgment on a conviction * * *.” The first phrase of the same statute provides: “The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district * * * court * * *.”²

This court has previously held that probation is not a sentence. In State v. McClure, 295 Or 732, 736, 670 P2d 1009 (1983) we said:

“The state answers by arguing that probation is not the imposition of a sentence, relying on State ex rel Dillavou v. Foster, 273 Or 319, 322, 541 P2d 811 (1975). To further support its position, it contends that the statutory scheme contained in Chapter 137 of the Oregon Laws clearly separates the ‘imposition of a sentence’ from a grant of probation. We agree. Probation is an alternative to the imposition of a sentence. ORS 137.010.”

We hold that an order of probation is appealable as a judgment on conviction and the appeal or review is not limited to whether it exceeds the maximum allowable by law or is unconstitutionally cruel and unusual as in the case of a sentence.

THE HISTORY OF PROBATION IN OREGON

Probation was unknown at common law.³ The term “probation” was first used by John Augustus, a boot-maker who lived in Boston, Massachusetts. Beginning in 1841 Augustus started the practice of having people released to him who were charged with the offense of being a common drunkard. Later people convicted of other offenses were released to him. He kept a journal in which he recorded his efforts to help over 1,100 probationers. Augustus is generally credited with being the father of probation and the first probation officer. Cohen and Gobert, The Law of Probation and Parole 7 (1983); Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System 22 (1976).

The General Laws of Oregon, 1845-1864, compiled and annotated by M. P. Deady, made no provision for parole or probation but gave the Governor “power to grant reprieves, commutations and pardons, after conviction, for all crimes; * * General Laws of Oregon, ch 33, § 333, p 449 (Deady 1845-1864).

The Oregon Legislature in 1905 by enacting chapter 177 gave the circuit courts power to grant parole to certain persons who had been convicted of a felony but who had not been delivered to the warden of the penitentiary. The persons who qualified were allowed to remain at large under the supervision of the court or under the supervision of a Prisoners Aid Society. The same legislature, by chapter 187, gave the governor the power to parole certain persons after they had served a part of their sentence in the penitentiary. In 1911 the legislature by chapter 127 created a Parole Board to report to the Governor on cases where it recommended that parole be granted. Chapter 176 of the 1915 legislature created a state parole officer to supervise the people paroled by the governor and the circuit courts.

In 1931 the legislature for the first time gave the trial courts authority to place criminal defendants on probation. Chapter 396 of Oregon Laws of 1931 provided in part:

“Section 1. The courts having jurisdiction of criminal or quasicriminal actions, including actions for violation of municipal ordinances when it shall appear that the best interests of the public as well as of the defendant will be subserved thereby, shall have power to suspend the imposition or execution of sentence for any crime or offense and also shall have power to place the defendant on probation for definite or indefinite period, not to exceed five years.

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“Section 3. The court shall determine and may at any time modify the conditions of probation and may include among them the following, or any other: That the probationer (1) shall avoid injurious or vicious habits; (2) shall avoid places or persons of disreputable or harmful character; (3) shall report to the probation officer as directed by the court; (4) shall permit the probation officer to visit him at his place of abode or elsewhere; (5) shall answer all reasonable inquiries on the part of the probation officer; (6) shall work faithfully at suitable employment; (7) shall remain within a specified place; (8) shall pay his or her fine, if any, in one or several sums; (9) shall make reparation or restitution to the aggrieved parties for the damage or loss caused by offense, in an amount to be determined by the court; (10) shall support his dependents.”

The same chapter provided that: “No probation officer, or clerical assistants appointed under this act shall receive any compensation from the state, any county or any municipality; * * Or Laws 1931, ch 396, § 5.

The 1931 legislature by chapter 397 also created a five-member state probation commission. In 1939 the legislature created a joint state board of parole and probation. Or Laws 1939, ch 266.

Although the probation laws of Oregon have been amended many times since 1931, the basic concept has remained the same. ORS 137.010(2) now provides in part:

“When a person is convicted of an offense, if the court is of the opinion that it is in the best interests of the public as well as of the defendant, the court may suspend the imposition or execution of sentence for any period of not more than five years. * * *”

ORS 137.540 now provides for general conditions of probation as follows:

“(1) The court may place the defendant on probation, which shall be subject to the following general conditions unless specifically deleted by the court. The probationer shall:

“(a) Remain under the supervision and control of the probation department.

“(b) Abide by the direction of the probation department and its representatives.

“(c) Promptly and truthfully answer all reasonable inquiries of the probation officer relating to probation performance.

“(d) Truthfully report monthly at times and in a manner specified by the probation department or its representative.

“(e) Remain in the State of Oregon until written permission to leave is granted by the probation department or its representatives.

“(f) Find and maintain gainful full-time employment, approved schooling, or a full-time combination of both. Any waiver of this requirement must be based on a finding by the court stating the reasons for the waiver.

“(g) Change neither employment nor residence without promptly informing the probation department or its representatives.

“(h) Permit the probation officer to visit the probationer or the probationer’s residence or work site.

“ (i) Submit to fingerprinting or photographing, or both, when requested by the probation department for supervision purposes.

“(j) Obey all laws, municipal, county, state and federal.

“(k) Pay fines, costs including probation costs, attorney fees or restitution or any combination thereof ordered by the court on a schedule of payments determined by the court.”

Can a criminal defendant refuse probation and demand that sentence be imposed?

Although the Oregon Court of Appeals has previously considered this matter,⁴ it is a question of first impression for this court.

Cases on this subject from other jurisdictions are collected in an annotation entitled: “Right of Convicted Defendant to Refuse Probation.” 28 ALR 4th 736 (1984). The annotation states that Alabama, Arizona, California, Idaho and Minnesota “have held or recognized that where the imposition or the execution of the sentence of a convicted defendant is suspended and the defendant is offered probation, the defendant may refuse the probation and elect to serve the suspended sentence or to demand the imposition of a sentence.” Id. at 737.⁵ Other states which have reached the same result are Alaska, North Carolina, South Dakota and Wisconsin.⁶

The opposite view is taken in a 1937 Fifth Circuit case, Cooper v. United States, 91 F2d 195, 199 (5th Cir 1937) where the court held, “We do not agree with appellants’ contention that probation, like pardon, may be refused by the convicted person.” However, in a later case by the same circuit, United States v. Smith, 414 F2d 630, 636 (5th Cir 1969), rev’d sub nom on other grounds, Schacht v. United States, 348 US 58, 26 L Ed 2d 44, 90 S Ct 1555 (1969), the court said, “Smith could have rejected probation and elected prison.” In Birnbaum v. United States, 107 F2d 885, 887 (4th Cir 1939), the court held, “a defendant may at any time insist upon the imposition of sentence.” In United States v. Alexander, 743 F2d 472 (7th Cir 1984), the court noted that a defendant generally may reject probation and elect that sentence be imposed.

The only states that we have been able to find which in effect hold that a defendant cannot refuse probation are Ohio and Nebraska. See City of Lima v. Beer, 107 NE2d 253, 255 (Ohio 1950); State v. Kinney, 350 NW2d 552, 556 (Neb 1984).

Cohen and Gobert, The Law of Probation and Parole 205 (1983), state:

“The offender, faced with the possibility of avoiding prison, usually requests probation or parole and is delighted to accept any reasonable conditions. In those rare cases where the offender seeks to reject probation or parole because of onerous conditions, the courts have generally recognized the right to do so, although a few authorities support the contrary view.

“* * * Any right to refuse probation or parole, moreover, is limited. The offender can only accept or reject the entire package of conditions; there is no right to accept some conditions but not others.”⁷

In 1933 the MacMillan Company published Probation and Criminal Justice edited by Sheldon Glueck, Professor of Criminology, Harvard Law School. A chapter in that book entitled “Some Legal Problems Raised by Probation” was written by Sam B. Warner, Professor of Penal Legislation and Administration, Harvard Law School. In that chapter at page 27 Professor Warner states: “No defendant can be forced to accept probation or suspended sentence. Everywhere the defendant can compel the judge to pass judgment with reasonable celerity.”⁸

Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System 54-55 (1976) state:

“The general rule is that probation cannot be imposed upon a defendant without his consent. If conditions are imposed without the consent of the defendant, and then violated, there is a question of whether or not the violation can be used to revoke probation. The laws of several states thus provide that the probationer must be furnished with a written statement of the terms of his probation and that he must accept the conditions of probation before being given his liberty.” (Footnotes omitted.)

Oregon does not have a statute which requires a defendant to accept a written statement of the terms of his probation before he is given his liberty. However, the printed form which this defendant was asked to sign contained the following:

“I understand and accept the Conditions of Probation under which I have been released by the sentencing Court. I agree to abide by and conform to them and fully understand my failure to do so may result in the revocation of my probation by the Court.”

Since probation is a creature of statute, we must look to the statutes of Oregon to determine if the legislature intended to give convicted criminal defendants the election to refuse probation and demand that sentence be imposed. The statutory scheme spans a period of time from 1931 through 1987. There is no recorded legislative history for the early years. In the later years there is none which shows the legislature’s clear intent as to our question.

From time to time after 1931, the legislature authorized the trial courts to impose special conditions of probation which invaded the defendant’s rights under the Oregon and United States constitutions. Those special conditions are now codified under ORS 137.540 which in part provides:

“(2) In addition to the general conditions, the court may impose special conditions of probation for the protection of the public or reformation of the offender, or both, including, but not limited to, that the probationer shall:

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“(b) Submit to polygraph examination by a qualified polygraph examiner designated by the court or probation officer under terms and conditions set by the court.

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“(e) Submit to random urinalysis at the direction of probation officer.

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“(j) Submit to breath test or blood test to determine blood alcohol content upon request of a probation officer having reasonable grounds to believe the results would disclose evidence of a probation violation. This condition may be set when it is reasonably related to the nature of the offense or treatment of the offender.

“ (k) Neither own, possess nor control any firearm or any other specified weapon.

“(L) Submit person, residence, vehicle and property to search by a probation officer having reasonable grounds to believe such search will disclose evidence of a probation violation. This condition may be set when it is reasonably related to the nature of the offense or treatment of the offender.”

The point is that if the legislature is going to ask a defendant to waive his or her constitutional rights, then necessarily the defendant must be given a choice. A choice of what? A choice to accept probation and waive the constitutional rights or reject probation and keep the constitutional rights.

Although in 1931 the Oregon legislature may not have intended to require a defendant’s consent to probation, it is apparent that since that time, by giving the trial courts authority to impose special conditions of probation which invade the defendant’s constitutional rights, it has in effect given the defendant an election to accept or reject probation.

It could be argued that in this particular case the defendant was not given the right to elect to reject probation because none of the special conditions of probation required him to waive any of his constitutional rights. However, we hold that the legislature intended that in order to have an efficient probation system, all probationers should be treated alike and each should have an election to reject probation.

We hold only that any convicted criminal defendant has the right to refuse probation and demand that sentence be imposed. We do not hold that because a defendant has accepted probation his “waiver” of his constitutional rights is necessarily “free and voluntary.” That is a different question and we do not reach it in this case. See LaFave, Search and Seizure, A Treatise on the Fourth Amendment 133 (2nd ed 1987).

The trial court and the Court of Appeals are reversed. This case is remanded to the trial court to vacate the ORDER OF PROBATION and impose sentence upon the defendant.

1 William J. Hemphill was not a victim of the crime of INITIATING A FALSE REPORT. There was evidence introduced at the trial from which the trier of fact could have believed that the defendant damaged his vehicle by driving it into a wall and then continued to drive it until it became disabled in a cul-de-sac in front of Hemphill’s house. The defendant then left the vehicle and proceeded on foot to Charlie’s Poolroom from where he called the police and reported that his vehicle had been stolen. Hemphill identified the defendant to the police as the man that left the car in the cul-de-sac.

2 State v. Martin, 282 Or 583, 580 P2d 536 (1978) cited in the dissent by Justice Jones is not in point. It was decided under the 1975 versions of ORS 138.040 and 138.050, which have been materially amended in 1977 and 1985.

3 The United States Supreme Court in Ex Parte United States, 242 US 27, 52, 37 S Ct 72, 61 LEd 129 (1916) held that courts had no inherent power to indefinitely suspend the imposition or execution of sentence because such was inconsistent with the constitution and would amount “to an interference with both the legislative and executive authority as fixed by the Constitution.” See Killinger, Kerper and Cromwell, Probation in the Criminal Justice System 25 (1976).

4 State v. Crites, 70 Or App 327, 689 P2d 353, rev den 298 Or 334 (1984); State v. Culbertson, 29 Or App 363, 372, 563 P2d 1224 (1977).

5 Persall v. State, 31 Ala App 309, 16 So2d 332 (1944); State v. Montgomery, 115 Ariz 583, 566 P2d 1329 (1977); People v. Osslo, 50 Cal 2d 75, 323 P2d 397, cert den 357 US 907 (1958); Franklin v. State, 87 Idaho 291, 392 P2d 552 (1964); State v. Randolph, 316 NW 2d 508 (Minn 1982).

6 Brown v. State (Alaska) 559 P2d 107 (1977); State v. Ritchie, 243 NC 182, 90 SE2d 301 (1955); State v. Jackson, 272 NW2d 102, 104 (SD 1978); Garski v. State, 75 Wis 2d 62, 248 NW2d 425, 433 (1977).

7 The only probation cases that the authors, Cohen and Gobert, cite to “support the contrary view” are Cooper v. United States, 91 F2d 195 (5th Cir 1937); State v. Kinney, 217 Neb 701, 350 NW2d 552 (1984); and State v. Crites, supra, note 3.

8 Probation and Criminal Justice (1933) was reviewed by Wayne L. Morse, Dean of the Oregon Law School, 12 Or L Rev 258 (1933). He commented that it was an excellent book that deserved wide reading.