State v. Actkinson ( 2022 )

832
Submitted March 23, affirmed May 25, petition for review denied October 6,
2022 (370 Or 303)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TIMOTHY TABIAS ACTKINSON,
Defendant-Appellant.
Clackamas County Circuit Court
18CR67732; A172693
511 P3d 444
Defendant appeals a judgment of conviction for the unauthorized use of
a motor vehicle. ORS 164.135. After the trial court found defendant guilty,
he asked the court to impose a downward departure sentence. After ordering
a presentence investigation report (PSI), the court concluded that under ORS
137.717(6)(a)—a provision of the Repeat Property Offender Statute—defendant
was ineligible for a downward departure sentence because he had been on proba-
tion for first-degree theft when he committed the crime at issue here. On appeal,
defendant challenges that conclusion. He asserts that, because his first-degree
theft was sentenced as a misdemeanor, rather than as a felony, ORS 137.717
(6)(a) does not disqualify him from receiving a downward departure sentence.
Held: The trial court did not err. Nothing in the text, context, or legislative
history of the statute indicates that it was intended only to apply to property
offenses sentenced as felonies. When defendant committed an offense listed in
ORS 137.717, and the trial court placed trust in the defendant by treating the
offense as a misdemeanor, rather than as a felony, it was the violation of that
trust—namely, the commission of another listed property offense while on super-
vision for the previous offense—that disqualified defendant from receiving a
downward departure sentence, not the nature of the sentence that resulted in
defendant being placed on supervised release in the first instance.
Affirmed.
Jeffrey S. Jones, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
Cite as 319 Or App 832 (2022) 833
KISTLER, S. J.
Affirmed.
834 State v. Actkinson
KISTLER, S. J.
Defendant appeals a judgment of conviction for the
unauthorized use of a motor vehicle.1 He argues that he
did not knowingly waive his right to a jury trial and that
the trial court erred in ruling that he was not eligible for
a downward departure sentence. Our decision in State v.
Austin, 316 Or App 56, 57, 501 P3d 1136 (2021), answers the
first issue defendant raises. We write to address the second
issue and affirm the trial court’s judgment.
After the trial court found defendant guilty of unau-
thorized use of a motor vehicle, defendant asked the court to
impose a downward departure sentence; that is, he asked
the court to impose a lesser sentence than the presumptive
sentence. Cf. State v. Speedis, 350 Or 424, 428-29, 256 P3d
1061 (2011) (discussing presumptive and departure sen-
tences). Because defendant also disputed his criminal his-
tory, the state asked the court to order a presentence inves-
tigation report (PSI) to help resolve that dispute. The state
noted, however, that a PSI would not be necessary if the
court agreed that ORS 137.717(6)(a) disqualified defendant
from receiving a downward departure sentence because he
had been on probation for first-degree theft when he com-
mitted his current crime of unauthorized use of a motor
vehicle.
Defendant, for his part, did not dispute at the sen-
tencing hearing that he had been on probation for first-
degree theft when he unlawfully used a motor vehicle. He
also did not dispute that, if he had been on probation for
first-degree theft, sentenced as a felony, he would be ineligi-
ble for a downward departure sentence under ORS 137.717
(6)(a). He observed, however, that he had been on probation
for first-degree theft, sentenced as a misdemeanor, when he
committed his current crime.2 It followed, he argued, that
1
Defendant was also charged with possession of a stolen vehicle. According
to the judgment, the court merged that count into the count for unauthorized use
of a vehicle and disposed of the stolen vehicle count with no conviction.
2
First-degree theft is a Class C felony. ORS 164.055(3). However, even when
a defendant is found guilty of a Class C felony, a trial court retains discretion to
enter a judgment of conviction for a Class A misdemeanor if the circumstances
of the offense and the history and character of the offender would make a felony
conviction “unduly harsh.” ORS 161.705. Additionally, when a defendant has been
Cite as 319 Or App 832 (2022) 835
ORS 137.717(6)(a) did not disqualify him from receiving a
downward departure sentence. In his view, the trial court
retained discretion to impose a lesser sentence.
Initially, the trial court declined to decide whether
ORS 137.717(6)(a) precluded defendant from receiving a
downward departure sentence “without further input from
the presentence reporter.” The court accordingly ordered
that a PSI be prepared. Several weeks later, the court
received the PSI, which detailed defendant’s background,
listed at least 43 prior convictions, and set out the circum-
stances surrounding his current conviction. The report con-
cluded that defendant was subject to sentencing under the
Repeat Property Offender Statute. It stated, “This statute,
ORS 137.717 and HB 3078, mandates a minimum term of
incarceration of 30 months followed by [a] 2 year [period of]
Post Prison Supervision.”
Having considered the PSI and the parties’ argu-
ments, the trial court ruled:
“[Y]ou know, looking through the [PSI], that’s one of the
longest criminal histories that I have seen, and the pre-
sentence reporter’s recommending that this be a custody
sentence because of his track record, and I agree with his
line of thinking.”
The court did not explain its ruling further and imposed, as
the PSI had recommended, a 30-month sentence followed by
two years of post-prison supervision.
On appeal, the parties debate the basis for the court’s
ruling. Defendant argues that the trial court concluded,
incorrectly in his view, that ORS 137.717(6)(a) disqualified
him from receiving a downward departure sentence. The
state contends initially that the trial court assumed that
defendant was eligible for a downward departure sentence
but, given defendant’s extensive criminal record, exercised
its discretion to impose the presumptive sentence instead.
Alternatively, the state argues that ORS 137.717(6)(a) dis-
qualified defendant from receiving a downward departure
charged with a nonperson Class C felony, the district attorney can elect to treat
it as a Class A misdemeanor. ORS 161.570. The record does not disclose which of
those two statutes led to defendant’s conviction for first-degree theft being sen-
tenced as a misdemeanor.
836 State v. Actkinson
sentence because he was on probation for first-degree theft
when he committed the crime of unauthorized use of a motor
vehicle. Before explaining how we interpret the trial court’s
ruling, we first describe ORS 137.717. We then discuss the
basis for the court’s ruling and finally explain why we affirm
its judgment.
ORS 137.717 sets out sentencing rules for repeat
property offenders. Subsection (1) of that statute identifies
presumptive sentences for certain property crimes, includ-
ing the crime for which defendant was convicted—the unau-
thorized use of a motor vehicle. See ORS 137.717(1)(b) (pre-
sumptive sentence for unauthorized use of a motor vehicle).
Subsection (3) provides that the presumptive sentences
set out in paragraphs (1)(a) and (b) shall be increased by
two months for each previous conviction for certain prop-
erty crimes listed in subsections (1) and (2). Subsection (4)
authorizes courts to impose greater sentences than the pre-
sumptive sentences specified by subsections (1) and (3) while
subsection (6) provides when a court shall impose at least
the presumptive sentence and when it can impose lesser
sentences.
Specifically, subsection (6) provides:
“The court shall sentence a person under this section to at
least the presumptive sentence described in subsection (1)
(a) or (b) or (3) of this section, unless the parties stipulate
otherwise or the court finds that:
“(a) The person was not on probation, parole or post-
prison supervision for a crime listed in subsection (1) of this
section at the time of the commission of the current crime
of conviction;
“(b) The person has not previously received a down-
ward departure from a presumptive sentence for a crime
listed in subsection (1) of this section;
“(c) The harm or loss caused by the crime is not greater
than usual for that type of crime; and;
“(d) In consideration of the nature of the offense and
the harm to the victim, a downward departure will:
“(A) Increase public safety;
Cite as 319 Or App 832 (2022) 837
“(B) Enhance the likelihood that the person will be
rehabilitated; and
“(C) Not unduly reduce the appropriate punishment.”
ORS 137.717(6).
With that background in mind, we begin by consid-
ering the basis for the trial court’s sentencing ruling. ORS
137.717(6) authorized the trial court to impose a downward
departure sentence only if the parties either stipulated to
doing so or if the court made the four findings set out in
ORS 137.717(6)(a) to (d). Neither of those events occurred.
Moreover, the trial court did not state expressly that, even if
it had discretion to impose a downward departure sentence,
it would decline to do so given defendant’s extensive criminal
history. Rather, it found the PSI persuasive, which stated
that the Repeat Property Offender Statute “mandates” a
30-month sentence.3 As we interpret the trial court’s ruling,
it implicitly found that defendant was ineligible for a down-
ward departure sentence under ORS 137.717(6).
We accordingly turn to defendant’s argument that
ORS 137.717(6)(a) does not disqualify him from receiving a
downward departure sentence.4 On that issue, defendant
notes that ORS 137.717(6)(a) disqualifies him from receiv-
ing a downward departure sentence only if he was on pro-
bation, parole, or post-prison supervision for one of the
offenses listed in subsection (1). He also notes that “[t]heft
in the first degree under ORS 164.055,” one of the offenses
listed in subsection (1), is classified as a Class C felony. See
ORS 164.055(3). Defendant recognizes that a conviction
for first-degree theft can be sentenced either as felony or a
misdemeanor. See ORS 161.705 (authorizing trial courts to
reduce Class C convictions to Class A misdemeanors); ORS
161.570 (authorizing prosecutors to treat nonperson Class C
felonies as Class A misdemeanors). However, he argues that,
3
Neither the state nor defendant disputes that, under ORS 137.717(1) and (3),
the trial court correctly concluded that the presumptive sentence for defendant’s
unauthorized use of a motor vehicle was 30 months in custody.
4
The parties do not address whether any of the other three factors set out in
ORS 137.717(6) precludes a downward departure sentence, independently of any
finding on the factor set out in ORS 137.717(6)(a). We need not resolve that issue
since we agree with the state that, in this case, ORS 137.717(6)(a) disqualified
defendant from receiving a downward departure sentence.
838 State v. Actkinson
when ORS 137.717(6) refers to being on probation, parole, or
post-prison supervision for “[t]heft in the first degree,” it is
referring to first-degree theft sentenced as a felony, not as a
misdemeanor. Defendant’s argument presents a question of
statutory interpretation.
What is now codified as ORS 137.717(6) finds its
source in an act referred to the voters. See Or Laws 2008,
ch 14, §§ 7, 15 (enacting ORS 137.717(6) as part of Senate
Bill (SB) 1087 (2008) and referring that act to the voters).
The voters adopted that act, and our goal is to discern their
intent. Burke v. DLCD, 352 Or 428, 432-33, 290 P3d 790
(2012). In doing so, we consider “the text of the statute in
context, along with any relevant legislative history.” Id. The
legislative history of a referred act consists of the materi-
als publicly available to the voters—“the measure itself, the
ballot title, [and] the Voters’ Pamphlet explanations of the
measure,” as well as contemporaneous media accounts. City
of Portland v. Smith, 314 Or 178, 190, 838 P2d 568 (1992);
see also Ericsson v. DLCD, 251 Or App 610, 621, 285 P3d
722 (2012). It also includes statements made in the legisla-
tive committee hearings that led to the referral, although
those statements may have only limited weight depending
on, among other things, their clarity. State v. Lane, 357 Or
619, 634, 355 P3d 914 (2015).
We begin with the text and context of ORS
137.717(6). Because the statute’s context illuminates its text,
we first set out the relevant context and then interpret the
text in light of that context. Cf. Stevens v. Czerniak, 336 Or
392, 401, 84 P3d 140 (2004) (explaining that text “should
not be read in isolation but must be considered in context”).
When the 1971 legislature enacted the current crimi-
nal code, it redefined the crime of theft. See Commentary
to Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report § 123 (July 1970).
Specifically, it eliminated most common-law variations on
theft and combined those common-law crimes into first- and
second-degree theft, which it distinguished by the value of
the property taken. Id. §§ 123-25. The 1971 legislature pro-
vided that first-degree theft is a Class C felony, Or Laws
1971, ch 743, § 125, and it simultaneously authorized trial
courts to enter convictions for offenses classified as Class C
Cite as 319 Or App 832 (2022) 839
felonies as Class A misdemeanors, id. § 80. It follows that,
since 1971, a defendant found guilty of the redefined crime
of first-degree theft can be sentenced either for a felony or a
misdemeanor.5 That is, depending on the circumstances of
the offense and the offender, either felony or misdemeanor
treatment can apply.
With that context in mind, we turn to the text of
ORS 137.717. Two different parts of the text, read in con-
text, bear on the issue that defendant raises. ORS 137.717
(6)(a) prohibits downward departures for defendants who
committed their current crimes while on probation, parole,
or post-prison supervision for “[t]heft in the first degree
under ORS 164.055.” See ORS 137.717(6)(a) (cross-referencing
ORS 137.717(1)(c)). The texts of both ORS 137.717(6)(a) and
the statute it cross-references, ORS 137.717(1)(c), do not dis-
qualify a defendant from receiving a downward departure
sentence only if the defendant committed his or her current
crime while on probation, parole, or post-sentence supervi-
sion for “[t]heft in the first degree,” sentenced as a felony.
Rather, the text of the statutory disqualification applies to
all prior convictions for “[t]heft in the first degree,” regard-
less of whether that offense had been sentenced as a felony
or a misdemeanor.
Another part of ORS 137.717(6)(a)’s text bears on
defendant’s argument. ORS 137.717(6)(a) prohibits imposing
a downward departure sentence when a defendant commits
his or her current property crime while on “probation, parole
or post-prison supervision” for one of the property crimes
listed in subsection (1). Each term in the phrase “probation,
parole or post-prison supervision” shares a common thread.
Each term refers to a period of time when a defendant is
on release in the community for one of the property crimes
listed in ORS 137.717(1); that is, the three terms collec-
tively identify a concern at the heart of ORS 137.717(6)(a)—
committing a property crime listed in paragraph (1)(a) or (b)
while on supervised release in the community for any of the
property crimes listed in subsection (1). It is the violation
5
Later, in 2003, the legislature authorized district attorneys to treat non-
person Class C felonies as misdemeanors. See Or Laws 2003, ch 645, § 2, codified
as ORS 161.570.
840 State v. Actkinson
of that trust—namely, the commission of another property
offense while on supervision for a listed property offense—
that disqualifies a defendant from receiving a downward
departure sentence, not the nature of the sentence (a mis-
demeanor or a felony) that resulted in the defendant’s being
placed on supervised release in the first instance.6 As we
read the text and context of ORS 137.717(6)(a), the relevant
question is whether a defendant was on probation, parole,
or post-prison supervision for “[t]heft in the first-degree,”
not whether that offense had been treated as a felony or a
misdemeanor.
The legislative history of ORS 137.717(6) is consis-
tent with the statute’s text and context. In 2008, the legis-
lature passed SB 1087 and provided that the act be submit-
ted to the people for their approval or rejection at the next
general election. Or Laws 2008, ch 14, § 15.7 SB 1087 was
a comprehensive enactment that rested on the proposition
that repeat property crimes are linked to drug addiction.
See id. §§ 1-3. To address that problem, SB 1087 increased
penalties for drug crimes, provided for drug treatment for
addicted offenders, increased presumptive sentences for
repeat property offenders, and limited the courts’ ability to
impose downward departure sentences. See id. §§ 2, 3, 6,
and 9. As one part of that effort, SB 1087 amended existing
sections of ORS 137.717 and added what is now codified as
ORS 137.717(6). Id. § 7.
The Secretary of State placed the referred act on
the November 2008 ballot as Measure 57. See Official Voters’
Pamphlet, General Election, Nov 4, 2008, 26. The caption
for the ballot title read: “Increases sentences for drug traf-
ficking, theft against elderly and specified repeat property
6
We note that the statutory phrase “probation, parole or post-prison super-
vision” is broad enough to include both misdemeanors and felonies; that is, both
misdemeanors and felonies can result in probation. See ORS 137.010. By contrast,
if the disqualification applied only to the commission of a property crime while
on “post-prison supervision” for another crime, then the disqualification would
be limited to the commission of a current crime while on supervision for a listed
property crime sentenced as a felony: After all, only offenses sentenced as felo-
nies can result in post-prison supervision. See OAR 213-005-0002(1) (defining
post-prison supervision as part of a felony sentence).
7
SB 1087 refers to itself as an act. However, the Governor did not sign it, and
it appears to be more in the nature of a joint House and Senate resolution.
Cite as 319 Or App 832 (2022) 841
and identity theft crimes; requires addiction treatment for
certain offenders.” The summary explained that the mea-
sure, if passed, would increase prison sentences for, among
other things:
“Repeat offenses of [various property crimes]: 18-30 months
or 24-36 months, depending on seriousness of crime and
number of past convictions.
“This measure also requires treatment for certain addicted
offenders at risk of reoffending; imposes sanctions for
those who refuse treatment. Limits court’s ability to reduce
sentences.”
Id. (emphasis added).
A competing measure, Measure 61, was also on the bal-
lot and would have imposed mandatory minimum sentences
on persons who committed certain property offenses. See id.
at 85.8 Most of the arguments for and against Measure 57
focused on whether Measure 57 or Measure 61 provided a
more effective way of eliminating repeat property crimes.
Proponents of Measure 57 lauded pairing treatment with
accountability—that is, requiring treatment for first time
offenders and then increasing the penalty for repeat offenses
while limiting the courts’ ability to impose downward depar-
ture sentences. Id. at 32-40. Opponents of Measure 57 (and
presumably proponents of Measure 61) generally argued
that a “catch and release” model of treatment for first time
offenders, rather than a mandatory minimum sentence,
provided little disincentive for committing property crimes.
Id. at 40-42.
The publicly available history of Measure 57 did not
specifically address the issue that defendant raises here—
whether a defendant who committed a property crime while
on supervision for a listed property crime would be disqual-
ified from receiving a downward departure sentence only
if the earlier crime had been treated as a felony. However,
the ballot caption, the summary, and the arguments for and
against the measure all focused on holding defendants who
8
Measures 57 and 61 conflicted. As a result, if both measures passed, the
measure receiving more votes would go into effect. See Voters’ Pamphlet at 26 (so
stating).
842 State v. Actkinson
committed repeat property offenses accountable. It was the
repeated commission of property offenses that mattered, not
whether the prior offense initially had been treated as a fel-
ony rather than a misdemeanor. Indeed, if a prosecutor or a
court had placed their trust in a defendant by treating the
initial property crime as a misdemeanor and by also putting
the defendant on supervised release in the community, then
the breach of that double measure of trust provided an even
greater reason for disqualifying the defendant from receiv-
ing a downward departure for his or her current crime. In
short, the publicly available history of the referred act is
consistent with and supports the state’s interpretation of
ORS 137.717(6)(a).
We also may consider statements made in legisla-
tive committee hearings that led to the act’s being referred
to the voters. Lane, 357 Or at 634. We have examined the
legislative history of SB 1087 and have not found anything
that would cause us to depart from the conclusion that we
draw from the text, context, and publicly available history of
ORS 137.717(6)(a).9 Most of the discussion that preceded the
adoption of SB 1087 focused on the need to limit repeat prop-
erty offenders, as the ballot title and the arguments for and
against Measure 57 later did. See Tape Recording, Senate
Committee on Judiciary, SB 1087, Feb 7, 2008, Tape 1, Side A
(testimony of Raul Ramirez and Scott Taylor); Exhibit B,
Senate Committee on Judiciary, SB 1087, Feb 7, 2008 (state-
ment of Scott Taylor). The only statement that provides
even arguable support for defendant’s position comes from
a passing remark that Joe O’Leary, the Public Policy Safety
Advisor for the Governor’s Office, made about a related but
separate section of ORS 137.717. See Tape Recording, Joint
Committee on Ways and Means, SB 1087, Feb 19, 2008,
Tape 28, Side B (testimony of Joe O’Leary).
In discussing what appears to be ORS 137.717(1)(a)(C),
O’Leary observed that the offenses listed in ORS 137.717(2)
are classified as felonies.10 Not only was O’Leary apparently
9
Defendant, for his part, has not identified any legislative history that would
support his interpretation of ORS 137.717(6)(a).
10
O’Leary did not tie his observation to a specific subsection of ORS 137.717.
However, the statutory details he mentioned correspond with ORS 137.717
(1)(a)(C), not ORS 137.717(6)(a).
Cite as 319 Or App 832 (2022) 843
discussing ORS 137.717(1)(a)(C), not ORS 137.717(6)(a), but
his remark adds little to the analysis. There is no dispute
that ORS 164.055, one of the property crimes listed in ORS
137.717(1) is a Class C felony.11 The question in this case,
which O’Leary’s remark did not address, is whether ORS
137.717(6)(a) disqualifies a defendant from receiving a down-
ward departure if he or she commits a property crime while
on supervised release for a Class C felony listed in subsec-
tion (1) that the judge or prosecutor elected to treat as a
misdemeanor. Although we are not precluded from consid-
ering O’Leary’s remark in determining what ORS 137.717
(6)(a) means, O’Leary’s unrelated observation about another
section of ORS 137.717 provides no reason to depart from the
conclusion that we draw from the text, context, and the other
legislative history of ORS 137.717(6)(a)—namely, a defen-
dant who commits his or her current property crime while
on supervised release for one of the property crimes listed in
ORS 137.717(1) will be disqualified from receiving a down-
ward departure sentence even though the judge or the pros-
ecutor treated the earlier crime as a Class A misdemeanor.
Affirmed.
11
ORS 137.717(2), which O’Leary mentioned, is largely redundant. It lists the
crimes in ORS 137.717(1), which is the subsection referenced in ORS 137.717(6)(a).