State v. Kragt ( 2021 )

577
Argued and submitted March 5; decision of Court of Appeals affirmed,
judgment of circuit court vacated, and case remanded to circuit court for further
proceedings consistent with Court of Appeals decision in State v. Kragt, 304 Or
App 537, 467 P3d 830 (2020), September 30, 2021
STATE OF OREGON,
Respondent on Review,
v.
RANDALL JAY KRAGT,
Petitioner on Review.
(CC CR99474) (CA A168649) (SC S067872)
495 P3d 1233
Defendant pleaded guilty to three counts of first-degree sodomy. At sentenc-
ing, defendant argued that, under ORS 144.103(1), the trial court should only
impose one post-prison supervision (PPS) term for all three counts, as opposed to
a PPS term for each count. The trial court disagreed, and sentenced defendant
to a PPS term for each count. The Court of Appeals affirmed. Held: Under ORS
144.103(1), a trial court must impose a PPS term for each qualifying offense.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is vacated, and the case is remanded to the circuit court for further pro-
ceedings consistent with the Court of Appeals decision in State v. Kragt, 304 Or
App 537, 467 P3d 830 (2020).
En Banc
On review from the Court of Appeals.*
Jon Zunkel-deCoursey, 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.
Kyle Krohn, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
______________
* On appeal from Yamhill County Circuit Court, John L. Collins, Judge. 304
Or App 537, 467 P3d 830 (2020).
578 State v. Kragt
GARRETT, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings con-
sistent with the Court of Appeals decision in State v. Kragt,
304 Or App 537, 467 P3d 830 (2020).
Cite as 368 Or 577 (2021) 579
GARRETT, J.
Oregon’s criminal sentencing guidelines establish
rules regarding the length of post-prison supervision (PPS).
However, ORS 144.103(1) sets forth special PPS rules for
certain sex offenses. The question in this case is whether,
when sentencing a person convicted of multiple qualifying
sex offenses, ORS 144.103(1) requires a trial court to impose
a separate term of PPS for each count or whether that stat-
ute, instead, requires the trial court to impose a single term
of PPS that covers all counts. The Court of Appeals, relying
on its own precedent, held that the statute requires a sepa-
rate term for each count. State v. Kragt, 304 Or App 537, 538,
467 P3d 830 (2020) (Kragt II). For the reasons that follow,
we agree and affirm the decision of the Court of Appeals.
As did the Court of Appeals, we vacate the judgment of the
circuit court based on a different sentencing issue than the
one presented on review, and we remand to the circuit court
for further proceedings consistent with the Court of Appeals
decision in Kragt II.1
I. BACKGROUND
After defendant pleaded guilty to three counts of
first-degree sodomy (Counts 1, 3, and 5), the trial court sen-
tenced him as follows: for Count 1, 60 months in prison; for
Count 3, 100 months in prison, concurrent with Count 1; and,
for Count 5, 100 months in prison, consecutive to Count 3.
For all three counts, the court initially imposed a single
PPS term of 240 months, minus the time defendant served
in prison. As a result, defendant was effectively sentenced
to 200 months in prison and, assuming he served the full
term, 40 additional months of PPS.
After defendant was released from prison, the
trial court amended the part of the judgment of conviction
that had imposed a single PPS term.2 Defendant appealed,
1
The Court of Appeals vacated and remanded the judgment based on a dif-
ferent sentencing issue than the one presented on review. Kragt II¸ 304 Or App at
538-39. Our ultimate disposition incorporates the Court of Appeals’ disposition
on that different sentencing issue.
2
According to defendant, that occurred because the Board of Parole and
Post-Prison Supervision “contacted the trial court to request an amended judg-
ment.” The record contains no other information in that regard.
580 State v. Kragt
arguing that the trial court had erred by amending the judg-
ment without notice and a hearing. The Court of Appeals
agreed with that argument and reversed. State v. Kragt,
290 Or App 169, 170, 412 P3d 275 (2018) (Kragt I).
On remand, defendant argued that ORS 144.103(1)
required the trial court to impose a single PPS term for all
three counts, as the court had done initially, before amending
the judgment. The trial court disagreed and entered a judg-
ment that imposed three PPS terms: 180 months for Count 1,
140 months for Count 3, and 140 months for Count 5.3
Defendant appealed again, arguing that ORS
144.103(1) requires a single term of PPS regardless of the
number of counts. In a per curiam opinion, the Court of
Appeals rejected that argument, relying on its decisions in
Norris v. Board of Parole, 237 Or App 1, 238 P3d 994 (2010),
rev den, 350 Or 130 (2011), and Delavega v. Board of Parole,
222 Or App 161, 194 P3d 159 (2008). Kragt II, 304 Or App at
538. Defendant petitioned for review, which we allowed.
II. APPLICABLE LAW
Before November 1, 1989, convicted defendants
were sentenced under the “parole matrix system.” State
ex rel Engweiler v. Cook, 340 Or 373, 380-81, 133 P3d 904
(2006). However, in 1987, “the Oregon legislature autho-
rized the Oregon Criminal Justice Council to develop a set
of mandatory felony sentencing guidelines that would estab-
lish presumptive sentences for all felonies.” State v. Davis,
315 Or 484, 486, 847 P2d 834 (1993) (footnote omitted). “At
the same time, the legislature created the State Sentencing
Guidelines Board (the Board) to serve as the administra-
tive body that would adopt the guidelines in the form of
3
As the Court of Appeals explained, the trial court imposed determinate
PPS terms for each crime. Kragt II, 304 Or App at 538. The trial court deter-
mined defendant’s PPS terms for each offense by subtracting the prison term to
which defendant had been sentenced for that offense from the maximum inde-
terminate sentence for the violation. See id. On appeal, the Court of Appeals
concluded that the trial court had erred by imposing determinate terms of PPS.
Kragt II, 304 Or App at 538-39. The court explained that “ORS 144.103 requires
the imposition of an indeterminate term of PPS, to be computed by the Board of
Parole and Post-Prison Supervision once the amount of time a defendant actually
spent incarcerated is known[.]” Id. at 538. Neither party sought review of that
issue; accordingly, this opinion does not address that issue, and our ultimate
disposition incorporates the Court of Appeals’ disposition of it.
Cite as 368 Or 577 (2021) 581
administrative rules.” Id. (footnote omitted). “In May 1989,
the Board completed that task and, in July, the legislature
expressly approved the guidelines.” Id. at 486-87. The guide-
lines became effective November 1, 1989. Id. at 487.
The sentencing guidelines are administrative rules
that set forth presumptive sentences for most felony convic-
tions based on the offender’s criminal history and the seri-
ousness of the offense. Id. at 486-87. The guidelines accom-
plish that “by creating a grid for establishing the sentence
in light of the offender’s criminal history and the serious-
ness of the offense. The vertical axis of the grid is the Crime
Seriousness Scale, which classifies the crime of conviction
according to its seriousness in relation to other crimes.
OAR 213-004-0001(1).” Engweiler, 340 Or at 382. The Crime
Seriousness Scale sets forth 11 numerical crime categories,
with crime category 1 representing the least serious crimes
and crime category 11 representing the most serious crimes.
OAR 213-004-0002(1); OAR ch 213, app 1.4 “The horizontal
axis of the grid is the Criminal History Scale, which classi-
fies the offender’s personal criminal history.” Engweiler, 340
Or at 382. “Each block on the grid provides the presumptive
sentencing range for offenders whose crime and criminal
history places them in that block.” Id.Despite being administrative rules, the sentencing
guidelines are approved by the legislature and have “the
authority of statutory law.” State v. Langdon, 330 Or 72, 74,
999 P2d 1127 (2000); see also State v. Carlton, 361 Or 29, 42,
388 P3d 1093 (2017) (noting that the legislature acts “both
directly and by approving the Sentencing Guidelines”). And,
importantly, “unless otherwise specifically provided by law,”
a court has a “duty” to impose a sentence in accordance with
the sentencing guidelines. ORS 137.010(1). Thus, the legisla-
ture and the electorate can supersede the sentencing guide-
lines by enacting other provisions.
For most felony convictions, the sentencing guide-
lines provide that the duration of PPS is one year, two years,
4
Several of the administrative rules and statutes discussed in this section of
the opinion have been amended since defendant committed his crimes. See, e.g.,
ORS 137.010; OAR 213-004-0002; OAR 213-005-0002. However, those amend-
ments do not affect the analysis of the issue on review. In this opinion, unless
otherwise noted, we refer to the current versions of those rules and statutes.
582 State v. Kragt
or three years, as determined by the crime seriousness
category of “the most serious current crime of conviction.”
OAR 213-005-0002(2)(a). However, ORS 144.103, enacted
in 1991, provides special PPS rules for certain sex offenses.
Subsection (1) of that statute provides:
“Except as otherwise provided in ORS 137.765 and sub-
section (2) of this section, any person sentenced to a term
of imprisonment for violating or attempting to violate
[ORS 163.365 (second-degree rape), 163.375 (first-degree
rape), 163.395 (second-degree sodomy), 163.405 (first-
degree sodomy), 163.408 (second-degree unlawful sexual
penetration), 163.411 (first-degree unlawful sexual pene-
tration), 163.425 (second-degree sexual abuse) or 163.427
(first-degree sexual abuse)] shall serve a term of active
post-prison supervision that continues until the term of the
post-prison supervision, when added to the term of impris-
onment served, equals the maximum statutory indetermi-
nate sentence for the violation.” 5
Thus, the duration of PPS for a qualifying offense under
ORS 144.103(1) is different than for most crimes under OAR
213-005-0002. Generally, the maximum term of PPS under
the latter is three years.6 But under ORS 144.103(1), an
offender could have a PPS term that is longer. For exam-
ple, second-degree sodomy has a crime seriousness rank-
ing of 8. OAR 213-017-0004(8). Second-degree sodomy is a
Class B felony, ORS 163.395(2), and, as such, has a maxi-
mum indeterminate sentence of 120 months in prison, ORS
161.605(2). For a defendant convicted of one count of second-
degree sodomy, a Measure 11 crime, the minimum sentence
5
ORS 144.103(1) has been amended since defendant committed his underly-
ing crimes. See Or Laws 2013, ch 708, § 31. However, defendant does not contend
that that amendment affects our analysis. Accordingly, we cite the current ver-
sion of ORS 144.103(1).
Relatedly, the record does not clearly indicate when defendant committed
each of the underlying crimes. However, because both parties have proceeded on
the assumption that ORS 144.103(1) applies to all defendant’s convictions, we do
so as well.
6
The maximum PPS term may be less than three years, if a three-year PPS
term, when added to the prison term, exceeds the statutory maximum indeter-
minate sentence for the crime of conviction. OAR 213-005-0002(4). In that situa-
tion, the trial court reduces “the duration of post-prison supervision to the extent
necessary to conform the total sentence length to the statutory maximum.”
Id.
Cite as 368 Or 577 (2021) 583
is 75 months. ORS 137.700(2)(N).7 In the absence of ORS
144.103(1), assuming that a trial court had sentenced the
defendant to 75 months, then, under OAR 213-005-0002,
the defendant’s PPS term would be a determinate term of
36 months. See OAR 213-005-0002(2)(a) (explaining that,
when the “most serious current crime of conviction” is a
crime seriousness category 8, the PPS term is three years).
However, ORS 144.103(1) would require the trial court to
impose a longer PPS term—an indeterminate PPS term
equal to the “maximum statutory indeterminate sentence,”
i.e., 120 months, minus “the term of imprisonment served.”
Thus, assuming that the defendant served an incarceration
term of 75 months, the PPS term would be 45 months under
ORS 144.103(1).
As the foregoing example illustrates, ORS 144.103(1)
can increase the length of PPS that a defendant must serve.
As discussed in more detail below, the legislature enacted
that statute for the purpose of reducing recidivism among
sex offenders.
III. DISCUSSION
The issue before this court is whether the trial court
erred in imposing separate terms of PPS for each of defen-
dant’s counts of conviction for first-degree sodomy, with
defendant arguing that ORS 144.103(1) requires a single
term of PPS regardless of the number of counts. The inter-
pretative question is potentially a significant one for defen-
dant. Under defendant’s interpretation of ORS 144.103(1),
he would be required to serve a single PPS term of only 40
months. Defendant reaches that conclusion by subtract-
ing the total time that he served for all three offenses (200
months) from the maximum indeterminate sentence for
first-degree sodomy (240 months).8 In contrast, under the
7
Because second-degree sodomy is a Measure 11 crime, a defendant’s mini-
mum sentence is established by ORS 137.700, not the sentencing guidelines grid.
8
We note that defendant’s interpretation assumes that the phrase “impris-
onment served” in ORS 144.103(1) refers to the total incarceration time served for
multiple offenses. However, that question is not presented in this case. When the
trial court imposes a PPS term under ORS 144.103(1), the amount of time that a
defendant will, in fact, serve is unclear. That is because a defendant who receives
“good time” credit may not serve the full incarceration term. In accordance with
ORS 144.103(1), the trial court imposes an indeterminate PPS term that is the
584 State v. Kragt
state’s interpretation, defendant would serve three separate
PPS terms concurrently, which would result in serving a
total of 180 months of PPS. The state counters that the trial
court’s sentence was correct: For Count 1, defendant’s PPS
term is 180 months (the maximum indeterminate sentence
of 240 months minus the 60 months of imprisonment on
that count); and, for each of Counts 3 and 5, the term is 140
months (the maximum of 240 months, minus 100 months of
imprisonment).9
As noted, the Court of Appeals held that the trial
court correctly imposed separate terms of PPS for each
count, relying on its previous decisions in Delavega and
Norris. In Delavega, the Court of Appeals construed OAR
213-005-0002(2)(b)(C) (2000) and ORS 144.103(1) in the con-
text of a defendant who had received consecutive sentences
for sex offenses covered by the statute. The court concluded
that the text of both provisions makes clear that a term of
PPS is required “for each violation of the statutes listed in
ORS 144.103.” 222 Or App at 167. The court began with OAR
213-005-0002(2)(b)(C) (2000), which at the time provided:
“Notwithstanding section 2(a) of this rule, the following
periods of post-prison supervision shall apply:
“* * * * *
“(C) For an offender sentenced for sexual offenses sub-
ject to ORS 144.103, the period shall be the maximum stat-
utory indeterminate sentence for that violation less the term
of imprisonment served.”
(Emphasis added.) The court explained that the use of the
singular nouns “sentence” and “violation” in OAR 213-005-
0002(2)(b)(C) (2000) was “significant” because those terms
difference between the maximum indeterminate sentence for the offense and
the time of imprisonment served. Later, when a defendant is released, the board
determines the PPS expiration date based on the length of the indeterminate
sentence and the term of imprisonment that the defendant served. In this case,
we are reviewing the trial court’s sentence, not a calculation by the board, and
we do not address what the result of the board’s calculation should be in this case.
9
As just noted as to defendant ‘s argument, the state similarly assumes
that “imprisonment served” refers to the time served for each offense. Again, the
meaning of “imprisonment served” is not before this court, and nothing in this
opinion should be construed as expressing any view about the meaning of that
term.
Cite as 368 Or 577 (2021) 585
“refer back to the plural phrase ‘sexual offenses subject
to ORS 144.103’ and indicate that an offender sentenced
for any one of the several sexual offenses listed in ORS
144.103 must serve a term of post-prison supervision for
that one offense equal to the maximum statutory inde-
terminate sentence prescribed for the offense minus the
term of imprisonment that the offender has served on that
offense.”
222 Or App at 166. The court then turned to ORS 144.103(1),
focusing on the phrase “indeterminate sentence for the vio-
lation” and concluded that that statute, “like OAR 213-005-
0002(2)(b)(C), establishes that an offender must serve a term
of post-prison supervision equal to the maximum statutory
indeterminate sentence minus the term of imprisonment
served for each violation.” Id. Finally, the court considered
the petitioner’s argument based on OAR 213-012-0020(4)(a),
which provides that, when a defendant is sentenced to con-
secutive sentences and one or more includes a prison term,
the supervision term is the “presumptive post-prison super-
vision term imposed for the primary offense.” Id. at 167. The
petitioner had argued that that language contemplates a
single PPS term, but the court rejected that argument, cit-
ing State v. Vedder, 206 Or App 424, 429-31, 136 P3d 1128
(2006), rev den, 342 Or 417 (2007), which held that OAR
213-012-0020 had been impliedly repealed by ORS 144.103.
Id. Based on Vedder, the court reasoned that OAR 213-012-
0020 did not apply to the petitioner because he had been
convicted of sex crimes listed in ORS 144.103. Id.As noted, Delavega dealt with consecutive sen-
tences. Shortly thereafter, in Norris, the Court of Appeals
considered the same issue in the context of concurrent sen-
tences. The court concluded that the “principle underlying
[its] decision in Delavega—that the PPS terms on individual
convictions must be calculated separately with respect to
each conviction—applies with equal force [to concurrent sen-
tences].” Norris, 237 Or App at 8. “Accordingly, where ORS
144.103(1) applies, an offender’s term of post-prison supervi-
sion is calculated by reference to the maximum indetermi-
nate sentence applicable to each crime of conviction[,] minus
the amount of time the offender was actually incarcerated
on that crime.” Id. (emphases in original).
586 State v. Kragt
In sum, the Court of Appeals has construed OAR
213-005-0002(2)(b)(C) and ORS 144.103(1) as requiring a
PPS term to be calculated and imposed for each crime of
conviction. Accordingly, the Court of Appeals rejected defen-
dant’s argument here that the trial court had erred in impos-
ing multiple PPS terms for each of his offenses. Kragt II,
304 Or App at 538.
On review, defendant argues that the Court of
Appeals misconstrued the relevant provisions in Delavega
and Norris. That argument raises a question of statutory
interpretation that we resolve by considering the text, con-
text, and any helpful legislative history. State v. Gaines, 346
Or 160, 171-72, 206 P3d 1042 (2009).
A. Text
We begin with the text. ORS 144.103(1) provides:
“Except as otherwise provided in ORS 137.765 and sub-
section (2) of this section, any person sentenced to a term
of imprisonment for violating or attempting to violate
ORS 163.365, 163.375, 163.395, 163.405, 163.408, 163.411,
163.425 or 163.427 shall serve a term of active post-prison
supervision that continues until the term of the post-prison
supervision, when added to the term of imprisonment
served, equals the maximum statutory indeterminate sen-
tence for the violation.”
ORS 144.103(1) makes clear that it applies to “any per-
son sentenced to a term of imprisonment for violating or
attempting to violate [one of the eight sex offense statutes
listed in the subsection].” It also makes clear that such a
person shall serve “a term of active post-prison supervision
that continues until the term of the post-prison supervision,
when added to the term of imprisonment served, equals the
maximum statutory indeterminate sentence for the viola-
tion.” In other words, the length of a PPS term is the time
that remains after the duration of “the term of imprison-
ment served” is subtracted from the “maximum statutory
indeterminate sentence for the violation.” The text does not
expressly address how many PPS terms a defendant should
receive if sentenced for multiple qualifying offenses. By pro-
viding for service of “a term” of PPS to be calculated by refer-
ence to the “maximum statutory indeterminate sentence for
Cite as 368 Or 577 (2021) 587
the violation,” however, the text seems to contemplate that
the sentence for each “violation” will include a PPS term.
(Emphasis added.)
Defendant urges a different reading, arguing that
the text, by referring to “any person,” contemplates that a
term of PPS will attach to an offender, not a count of con-
viction. That is, the subject of the sentence is the “person,”
not the offense. The state responds that the legislature used
the phrase “any person” simply to show that ORS 144.103(1)
applies to any offender who commits certain sex crimes.10
Thus, the fact that the subject of ORS 144.103(1) is “any per-
son” does not mean that the legislature intended to limit the
number of PPS terms imposed in a judgment.
The state’s interpretation is more persuasive. Defen-
dant is correct that, as a grammatical matter, the “person”
is the subject of subsection (1), but that sheds little light on
the question whether a trial court should impose a term of
PPS on each count. The more natural reading of the text
is that the legislature intended for “any person” to simply
describe the category of offenders eligible for the PPS term
set forth in the remainder of the text, namely, any person
who is “sentenced to a term of imprisonment for violating
or attempting to violate ORS 163.365, 163.375, 163.395,
163.405, 163.408, 163.411, 163.425 or 163.427.”
In sum, the text, though not definitive, strongly
suggests that a PPS term will attach to any “violation.”
B. Context
Context includes “other provisions of the same or
related statutes, the pre-existing statutory framework
within which the statute was enacted, and prior opinions of
this court interpreting the relevant statutory wording.” Ogle
v. Nooth, 355 Or 570, 584, 330 P3d 572 (2014). Here, both
parties rely on the 1989 version of sentencing guidelines to
support their positions. The 1989 version of the sentencing
10
In support of that reading, the state cites several 1989 sentencing stat-
utes, namely, ORS 137.071 (1989), ORS 137.122(2) (1989), ORS 137.123(2) and (3)
(1989), where the subject of the statutes was either “the person” or the “defendant”
who committed the crimes. The state contends that, even though the “person,” as
opposed to the offense, is grammatically the subject of those statutes, they none-
theless contemplate the imposition of a separate sentence for each offense.
588 State v. Kragt
guidelines predated the enactment of ORS 144.103(1) in
1991 and is therefore relevant context. Moreover, as noted,
the sentencing guidelines are the default sentencing frame-
work unless ORS 144.103(1) “specifically” provides other-
wise. ORS 137.010(1).
However, we pause to note that the parties’ argu-
ments regarding the meaning of the sentencing guidelines
raise questions about how those rules would apply in cir-
cumstances not squarely presented in this case, which is
governed by ORS 144.103(1). Nonetheless, the parties agree,
as do we, that the 1989 guidelines are relevant for present
purposes only as context for understanding what the legis-
lature likely intended when it enacted ORS 144.103(1) two
years later, and we limit our focus accordingly. Moreover,
that inquiry is guided by what the guidelines and their
explanatory comments say on their face, as the legislature
did not have the benefit of any appellate decision interpret-
ing them when it enacted ORS 144.103(1) in 1991.
With the question so framed, the state advances a
more plausible account of how the 1991 Legislative Assembly
likely would have understood the sentencing guidelines
to operate. First, as general context, the state points to
rules that reinforce a general notion that each “conviction”
receives its own “sentence,” including a term of PPS. For
example, former OAR 253-13-001(1) (1989), renumbered as
OAR 213-013-0001 (1996), sets forth the requirements for
the sentencing report that is required for each case result-
ing in at least one felony conviction. See Oregon Sentencing
Guidelines Implementation Manual 67 (1989) (explaining
that a sentencing report is required for “each case resulting
in at least one felony conviction under the guidelines sys-
tem”).11 That rule then specifies that the sentencing report
should contain a description of the term of PPS “imposed for
each crime of conviction”:
“(3) The sentencing report shall provide the following
information about the sentence imposed for each crime of
conviction:
11
The Oregon Sentencing Guidelines Implementation Manual (guidelines
manual) “contains the official commentary to the guidelines and provides import-
ant legislative history to aid our interpretation of the relevant guidelines provi-
sions.” State v. Lykins, 357 Or 145, 155, 348 P3d 231 (2015).
Cite as 368 Or 577 (2021) 589
“(a) a description of the sentence imposed, including:
“(A) the prison term of incarceration and the term of
post-prison supervision[.]”
(Emphases added.) Similarly, former OAR 253-13-010(3)(a)
(1989), renumbered as OAR 213-013-0010 (1996), sets forth
the requirements for a presentencing report and, in part,
provides that each report shall include:
“(3) A proposed grid block classification for each crime
of conviction and the presumptive sentence for each crime
of conviction.
“(a) If the proposed grid block classification is a grid
block above the dispositional line, the presentence report
shall state the presumptive prison term range and the pre-
sumptive duration of post-prison supervision.”
(Emphases added.) By providing that the various reports
shall state either the PPS term “imposed for each crime of
conviction” or the presumptive PPS term for each crime of
conviction, the sentencing guidelines suggest that a PPS
term is imposed for each crime of conviction.
More directly on point, the state relies on a differ-
ent rule, former OAR 253-12-040(1) (1989), renumbered as
OAR 213-012-0040 (1996), which states in part that, “[i]f the
offender has been sentenced to multiple terms of post-prison
supervision, the terms of post-prison supervision shall be
served as a single term.” (Emphasis added.) The state also
points to the following statement in the guidelines manual:
“Whenever an offender is serving more than one term of
post-prison supervision at a single time, the terms shall be
treated as a single term of supervision. Consequently, the
maximum sanction for supervision violations is limited by
[former] OAR 253-11-004. This limitation on the maximum
revocation sanction applies regardless of how many terms
of post-prison supervision are being served by the offender.
This limitation even applies when the separate terms of post-
prison supervision have been imposed in separate cases.”
Oregon Sentencing Guidelines Implementation Manual 118
(1989) (emphasis added). According to the state, the quoted
language shows that, at the time when the legislature
enacted ORS 144.103(1) in 1991, it would have understood
590 State v. Kragt
the sentencing guidelines to allow for multiple PPS terms
(to be served as a single term). Moreover, because the com-
mentary states that former OAR 253-12-040(1) (1989) “even
applies” when a defendant has received multiple PPS terms
in “separate cases,” it follows that the rule also anticipates
situations where a defendant receives separate terms of PPS
in a single case.
The state is correct that former OAR 253-12-040(1)
(1989) expressly contemplates situations in which an offender
will be serving “multiple terms of post-prison supervision,”
providing that they should be served as a “single term.”
Defendant rejoins that that rule does not authorize the impo-
sition of multiple terms; it only addresses situations where
they exist. That may be a correct literal reading, but the
distinction is not a particularly salient one when evaluating
the rule as context for the statutory construction question
now before us. The important point is that, if the legislature,
in enacting ORS 144.103(1) in 1991, would have understood
that multiple PPS terms could exist for an offender, then that
context supports rather than undercuts the natural reading
of the statutory language, discussed above.12
To be sure, defendant identifies other contextual
provisions that create ambiguity. First, defendant points
to former OAR 253-05-002 (1989), renumbered as OAR 213-
005-0002 (1996), which, in part, provides:
“(2) The duration of the post-prison supervision shall
be determined by the crime seriousness category of the
most serious current crime of conviction:
“* * * * *
“(3) The term of post-prison supervision shall begin
upon completion of the offender’s prison term * * *. * * *
“(4) The term of post-prison supervision, when added
to the prison term, shall not exceed the statutory maxi-
mum sentence for the crime of conviction. When the total
12
Defendant also hypothesizes that the wording in former OAR 253-12-
040(1) (1989) is meant to address only situations in which offenders are serving
multiple PPS terms imposed in different cases or when a trial court erroneously
imposes multiple PPS terms in a single case. However, that suggestion is difficult
to square with the italicized part of the explanatory comment in the guidelines
manual quoted above, which clearly implies that “separate cases” are just one
category of situations in which separate terms can be imposed.
Cite as 368 Or 577 (2021) 591
duration of any sentence (prison incarceration and post-
prison supervision) exceeds the statutory maximum sen-
tence, the sentencing judge shall first reduce the duration
of post-prison supervision to the extent necessary to con-
form the total sentence length to the statutory maximum.”
Defendant argues, not implausibly, that subsection (2)
calls for a trial court in a multi-count case to impose a sin-
gle PPS term calculated by reference to the most serious
count. But the state has a response that is not implausible,
either: The state argues that the rule as a whole is consis-
tent with the idea encapsulated in former OAR 253-12-040
(1989)—namely, that a term of PPS is imposed on each count
of conviction, though an offender serves a single term. In
the state’s view, that is why subsection (2) of former OAR
253-05-002 (1989) refers to the “duration” of PPS while the
other subsections refer to a “term” of PPS. For example, sub-
section (4) provides that “[t]he term of post-prison supervi-
sion, when added to the prison term, shall not exceed the
statutory maximum indeterminate sentence for the crime
of conviction”—wording that, as the state points out, once
again seems to associate a “term” of PPS with every “crime
of conviction.”
Defendant also relies on former OAR 253-12-020
(1989), renumbered as OAR 213-012-0020 (1996), which per-
tains to consecutive sentences and provides, in part:
“(1) When the sentencing judge imposes multiple sen-
tences consecutively, the consecutive sentences shall con-
sist of an incarceration term and a supervision term.
“* * * * *
“(3) The supervision term of consecutive sentences
shall be:
“(a) The presumptive post-prison supervision term
imposed for the primary offense if the sentence for any
offense includes a prison term[.]”
As defendant emphasizes, subsection (1), too, makes repeated
reference to “an incarceration term” and “a supervision
term” in the singular. And the fact that the word “each”
does not appear between “shall” and “consist” could indicate
that a single “supervision term” exists for the consecutive
592 State v. Kragt
sentences. Defendant further reasons that, consistent with
what subsection (1) seems to say, paragraph (3)(a) contem-
plates a single PPS term in a case where an offender receives
consecutive sentences, any of which includes a term of
incarceration. The guidelines manual confirms that under-
standing by explaining that, under paragraph (3)(a), the
PPS term for the consecutive sentences is a “single term.”
Oregon Sentencing Guidelines Implementation Manual 115
(1989) (explaining that, in a hypothetical example of three
separate burglary convictions, “the supervision part of the
consecutive sentences is a single term of post-prison super-
vision” (emphasis added)).
At oral argument, the state argued that former OAR
253-12-020(3)(a) (1989) provides directions to the Board of
Parole and Post-Prison Supervision (board), not trial courts,
for calculating the duration of PPS and for setting the PPS
expiration date when a defendant is released from prison.
The state concedes that paragraph (3)(a) directs the board to
require a defendant to serve only a single term of PPS based
on the primary offense, but it argues that the rule does not
address how many terms are to be imposed.
We note that, even assuming (without deciding) that
defendant is correct that paragraph (3)(a) of former OAR
253-12-020 (1989) is directed to what the trial court does
at sentencing rather than to what the board does later, that
rule is still limited by its terms to consecutive sentences.
Thus, defendant’s interpretation, if correct, does not nec-
essarily mean that the legislature would have understood
multiple PPS terms to be precluded in other contexts.13
13
Although the parties have not discussed the point, a possible reason why
the drafters of the guidelines could have approached the question of PPS terms
differently for consecutive sentences has to do with resource limitations. See Or
Laws 1987, ch 619, § 2 (“In developing the sentencing guidelines the [Oregon
Criminal Justice Council] shall take into consideration factors relevant to [the]
establishment of appropriate sentences, including * * * the effective capacity of
state and local correctional facilities and other sentencing sanctions available.”).
To account for that resource issue, the drafters of the guidelines made clear in
former OAR 253-02-001(1) (1989), renumbered as OAR 213-002-0001 (1996), that
resources were a driving consideration behind the guidelines: “The primary
objectives of sentencing are to punish each offender appropriately, and to insure
the security of the people in person and property, within the limits of correctional
resources provided by the Legislative Assembly, local governments and the people.”
(Emphasis added.)
Cite as 368 Or 577 (2021) 593
At bottom, both parties can point to wording in the
sentencing guidelines that supports their respective posi-
tions. As noted, we decline to resolve ultimate questions
regarding the meaning of the various guidelines rules that
the parties have cited, beyond what is necessary to infer
how the legislature likely understood them when it enacted
ORS 144.103(1) in 1991. The provisions that the state cites
are consistent with and reinforce the general notion that
each count of conviction receives its own sentence, including
its own term of PPS. Defendant has identified other provi-
sions that plausibly may be read in a manner that is in ten-
sion with that general notion, but the state has put forward
contrary interpretations of those rules that are also plau-
sible. On balance, particularly in light of former OAR 253-
12-040(1) (1989) and the wording in the guidelines manual
explaining that provision, we conclude that the legislature
likely would have understood in 1991 that multiple terms of
PPS could be imposed by a sentencing court in a single case.
That conclusion supports the natural reading of the text of
ORS 144.103(1), as discussed above.
C. Legislative History
Both parties contend that the legislative history of
ORS 144.103(1) demonstrates an intention that the num-
ber of PPS terms imposed under that statute would be con-
sistent with what the guidelines otherwise required. As
explained below, we have found little helpful evidence in that
regard.
The legislative history shows that the 1991 Legisla-
tive Assembly enacted ORS 144.103(1) to increase the
length of PPS. Both parties rely on the testimony of a pro-
ponent, Jim McIntyre, who explained that ORS 144.103(1)
“extend[ed] the maximum period of time [a sex offender] can
currently be held on probation and under [post-prison] super-
vision.” Tape Recording, House Committee on Judiciary,
Subcommittee on Crime and Corrections, HB 2543, Feb 19,
1991, Tape 25, Side B (statement by Jim McIntyre). His testi-
mony included an additional indication that ORS 144.103(1)
was not intended to affect the application and term set-
ting of the maximum statutory times under the sentencing
guidelines:
594 State v. Kragt
“[McIntyre]: The are a number of statutory enact-
ments that are triggered * * * anytime any criminal defen-
dant is sentenced. This merely addresses one section of
those statutes. There are statutes and administrative rules
that govern the overall application and term setting of max-
imum statutory times that will not be affected.”
Tape Recording, House Committee on Judiciary, Subcom-
mittee on Crime and Corrections, HB 2543, Feb 19, 1991,
Tape 25, Side B (statement by Jim McIntyre) (emphasis
added). The foregoing could be interpreted as suggesting
that ORS 144.103(1) would not affect the “statutes and
administrative rules that govern the overall application and
term setting of maximum statutory times,” including the
sentencing guideline rules that set forth the number of PPS
terms a trial court imposed. See id.Notably, however, in making that statement, McIntyre
did not explain which statutes and administrative rules
governed the application and term setting of maximum stat-
utory times and, in turn, did not specify which rules would
remain unchanged. It therefore is far from clear that he
had the view that former OAR 253-05-002 (1989) and for-
mer OAR 253-12-020 (1989) would be unaffected by the 1991
legislation. Indeed, because ORS 144.103(1) clearly affected
the length of the PPS terms set forth in former OAR 253-
05-002(2) (1989), McIntyre could not have meant that for-
mer OAR 253-05-002 (1989) would be entirely unaffected.
As such, his testimony is of little assistance in resolving the
interpretative question before us, and the legislative history
does not otherwise indicate one way or the other whether
the number of PPS terms that a defendant would receive
under ORS 144.103(1) would be the same as those imposed
under the sentencing guidelines.
D. Maxims of Statutory Construction
When the legislature’s intent is not clear from the
text, context, and legislative history, this court may resort
to maxims of statutory construction to resolve the uncer-
tainty. PGE v. Bureau of Labor and Industries, 317 Or 606,
612, 859 P2d 1143 (1993). In this case, defendant relies on
the maxim of avoiding an interpretation that will “lead to
an absurd result that is inconsistent with the apparent
Cite as 368 Or 577 (2021) 595
policy of the legislation as a whole.” See State v. Vasquez-
Rubio, 323 Or 275, 282-83, 917 P2d 494 (1996) (describing
maxim). Specifically, defendant contends that interpreting
ORS 144.103(1) to require a trial court to impose separate
PPS terms will result in longer PPS terms for offenders who
receive relatively shorter prison sentences. He also contends
that it will work to the disadvantage of offenders who earn
good-time credits and thus ultimately serve less time than
the full term imposed.
We do not necessarily disagree that construing ORS
144.103(1) to require a term of PPS for each count may lead,
in some cases, to results that are arguably anomalous or
inconsistent with policies underlying the sentencing guide-
lines. See Norris, 237 Or App at 12 (holding that statute
requires a term of PPS for each conviction, notwithstanding
“anomaly” that “petitioner is actually in a worse position by
virtue of having committed the least serious of his offenses
(which yielded the longer terms of PPS) than he would have
been if he had, instead, committed four acts of first-degree
sexual abuse”). On the other hand, the state argues that
defendant’s interpretation of the statute would have its own
anomalous consequences.14 However, the “absurd results
canon is best applied sparingly—only when the statute is
truly ambiguous and the result is truly absurd.” LandWatch
Lane County v. Lane County, 364 Or 724, 741, 441 P3d 221
(2019) (emphasis in original). In this case, where the text
strongly supports one reading, where the context supports
that reading, and where the legislative history adds no
ambiguity, we conclude that resorting to the absurd-results
maxim is not appropriate. See Vasquez-Rubio, 323 Or at 283(“When the legislative intent is clear from an inquiry into
text and context, or from resort to legislative history, how-
ever, it would be inappropriate to apply the absurd-result
maxim.”). Defendant’s policy arguments are more appropri-
ately directed at the legislature.
14
For example, the state points out that, under defendant’s interpretation
of ORS 144.103(1), a person who is convicted of two counts of first-degree rape,
receives consecutive ten-year sentences on the two counts, and serves the full 20
years of incarceration could not be required to serve any PPS at all, because the
total period of incarceration would equal the statutory maximum indeterminate
sentence of 240 months. The state argues that such a result would contravene the
legislative intent to lengthen the periods of PPS for sex offenders.
596 State v. Kragt
E. Summary of Text, Context, and Legislative History
Our consideration of the text, context, and legis-
lative history leads us to conclude that a trial court must
impose a PPS term for each violation of the statutes listed
in ORS 144.103(1). Accordingly, we agree with the Court of
Appeals that the trial court did not err in imposing a PPS
term for each offense.
Because this decision addresses only the statutory
question posed by ORS 144.103(1), we do not definitively
resolve when and whether multiple PPS terms are appro-
priate under the sentencing guidelines. However, as ORS
137.010(1) makes clear, the legislature has authority to set
forth sentencing requirements that differ from those set
forth in the sentencing guidelines. Here, for the reasons
discussed above, ORS 144.103(1) specifically provides that
a trial court shall impose a PPS term for each violation of
the offenses listed in that subsection. Thus, to the extent
that such a construction is inconsistent with the sentencing
guidelines, ORS 144.103(1) controls when applicable.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings con-
sistent with the Court of Appeals decision in State v. Kragt,
304 Or App 537, 467 P3d 830 (2020).