State v. Schaffer , 124 Or. App. 271 ( 1993 )

862 P.2d 107 (1993) 124 Or. App. 271

STATE of Oregon, Respondent,
v.
Johnny Lee SCHAFFER, Appellant.

92-01-5526C; CA A74353.

Court of Appeals of Oregon.

Petition for Reconsideration September 16, 1993. Decided November 3, 1993.

Sally L. Avera, Public Defender, and Ingrid A. MacFarlane, Deputy Public Defender, for petition.

Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Metcalf, Asst. Atty. Gen., contra.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ., Judges.

On Appellant's Petition for Reconsideration September 16, 1993.

ROSSMAN, Presiding Judge.

This is another in the long line of escape cases that highlight the non-jail status of the defendant. See State v. Sasser, 104 Or.App. 251, 799 P.2d 1146 (1990), rev. den. 311 Or. 151, 806 P.2d 129 (1991) (defendant conditionally released to reside in sister's home); State v. Torgerson, 98 Or.App. 248, 778 P.2d 991 (1989) (defendant in home supervision release program); State v. Scott, 94 Or.App. 250, 764 P.2d 976 (1988) (defendant transported to work release program); State v. Ratliff, 89 Or.App. 483, 749 P.2d 616 (1988) (defendant in work release program). We originally affirmed this case from the bench. 122 Or.App. 638, 858 P.2d 182 (1993). However, we grant defendant's motion for reconsideration in order to distinguish the circumstances of this case from those addressed by our recent opinion in State v. Wilde, 123 Or.App. 493, 862 P.2d 105 (1993).

Defendant was originally convicted of an unrelated offense. Due to a lack of jail space, the trial court imposed a unique sentence. It ordered defendant to report to the Malheur County courtroom before 8 a.m. on each judicial day and to remain there, awake, until 5 p.m. or until court business concluded. It also placed defendant under house arrest when he was not in court. Defendant received one custodial unit or credit for each day served under the courtroom confinement order. The order also provided:

"[T]he Court constitutes a correctional facility as

defined in ORS 162.135 subsection 2, for purposes of this order. Failure to comply with this order may result in you being charged with Escape in the First Degree, Escape in the Second Degree, or some other crime and/or Contempt of Court."

Defendant failed to appear for his "courtroom confinement" and was convicted of escape in the second degree. ORS 162.155. At trial, he moved for a judgment of acquittal on the ground that a courtroom is not a correctional facility and, therefore, his failure to appear could not constitute escape. He assigns as error the denial of that motion.^[1] We affirm.

In State v. Wilde, supra, the defendant violated the conditions of a pretrial "home detention" program under which he was allowed to leave jail and was required to stay at home unless he obtained permission to leave the premises. We noted that, under a 1989 legislative amendment, the crime of escape no longer includes "failure to comply with provisions of a conditional release." ORS 162.135(5). Because the home detention program was a "conditional release," we held that the defendant could not be convicted of escape when he failed to comply with the terms of his release agreement.^[2]

Wilde and the present case are distinguishable. Here, defendant's failure to appear for courtroom confinement was not a "failure to comply with provisions of a conditional release." By declaring that the courtroom was a correctional facility^[3] and confining defendant to that facility between the hours of 8 a.m. and 5 p.m., and then by placing him under house arrest for the remaining hours of the day, the judge ensured that defendant was at all times either in custody^[4] or confined to a correctional facility. In sum, he had not been "released." Accordingly, the trial court did not err in denying defendant's motion for judgment of acquittal.

Reconsideration allowed; decision withdrawn; affirmed.

NOTES

[1] Defendant also argues that he could not have "escaped" because he never "arrived." That argument was not preserved for appellate review.

[2] The state did not argue that the defendant had been placed under house arrest or that his house had been declared a "correctional facility" to which he had been confined under a court order.

[3] ORS 162.135(2) provides, in part:

"``Correctional facility' means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order."

[4] ORS 162.135(4) provides, in part:

"``Custody'" means the imposition of actual or constructive restraint by a * * * court order[.]"