State v. LaCoe ( 2022 )

74
Argued and submitted July 29; vacated and remanded for resentencing in
Case Nos. 14CR0739FE and 16CR50627, otherwise affirmed; judgment in
Case No. 19CR75454 affirmed December 7, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER WILLIAM LaCOE,
Defendant-Appellant.
Douglas County Circuit Court
19CR75454, 14CR0739FE, 16CR50627;
A174876 (Control), A174020, A174021
522 P3d 18
Defendant appeals from two judgments that revoked his probation and
imposed sentences of incarceration. Relying on State v. Berglund, 311 Or App
424, 491 P3d 820 (2021), defendant argues that the trial court erred in denying
his motion to dismiss the state’s untimely filed supplemental allegation and in
relying on that allegation to revoke probation. Held: The Court of Appeals con-
cluded that, because the state did not file its supplemental probation violation
allegation during defendant’s probation period, the trial court lacked authority
to revoke probation based on that supplemental allegation.
Vacated and remanded for resentencing in Case Nos. 14CR0739FE and
16CR50627; otherwise affirmed; judgment in Case No. 19CR75454 affirmed.
Ann Marie Simmons, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Armstrong, Senior Judge.
JOYCE, J.
Vacated and remanded for resentencing in Case Nos.
14CR0739FE and 16CR50627; otherwise affirmed; judg-
ment in Case No. 19CR75454 affirmed.
Cite as 323 Or App 74 (2022) 75
JOYCE, J.
In this consolidated appeal, defendant challenges
two judgments that revoked his probation and imposed sen-
tences of incarceration. We conclude that, because the state
did not file its supplemental probation violation allegation
during defendant’s probation period, the trial court lacked
authority to revoke probation based on that supplemental
allegation. Accordingly, we vacate the sentencing judgments
and remand for further proceedings.
The relevant facts are few. In one of the cases, defen-
dant was convicted of delivery of methamphetamine, a Class
B felony, and felon in possession of a firearm, a Class C fel-
ony. In the other, he also was convicted of delivery of meth-
amphetamine. In both cases, the trial court sentenced defen-
dant to probation under the felony sentencing guidelines,
see ORS 137.010(1); OAR 213-005-0008(1), through August
2019. In June 2019, the trial court issued an arrest warrant
based on the state’s allegation that defendant had violated
the condition of probation to “[r]eport as directed and abide
by the direction of the supervising officer.” Defendant was
arrested on the warrant in November 2019. In December
2019, after defendant’s probation period was set to expire
but before the probation revocation hearing, the state filed a
supplemental affidavit alleging that defendant had violated
a different condition of probation to “[o]bey all laws.”
Defendant moved to dismiss the supplemental alle-
gation, arguing that it was untimely because the state had
filed it after the probation period had already expired. The
trial court disagreed, concluding that the issuance of the
arrest warrant in June 2019 had tolled the probation period
from the time that he had failed to report until his arrest
on the warrant. The trial court, relying in part on OAR 213-
005-0008(3) (which we discuss in more detail below), ulti-
mately found that defendant had violated the two conditions
of probation as alleged, and it revoked probation in both
cases.
On appeal, defendant contends that the trial court
erred in denying his motion to dismiss and in relying on
the state’s supplemental allegation to revoke probation.
Relying on State v. Berglund, 311 Or App 424, 491 P3d 820
76 State v. LaCoe
(2021), defendant argues that a probation period cannot be
automatically tolled and, because the sentencing court did
not extend probation through a deliberate judicial act, the
probation period ended in August 2019. We review a sen-
tencing court’s decision to revoke probation for legal error.
State v. Miller, 224 Or App 642, 644, 199 P3d 329 (2008).
We agree with defendant and conclude that the sentenc-
ing court lacked authority to revoke probation based on the
state’s supplemental allegation. We thus vacate the sentenc-
ing judgments and remand for further proceedings.
Whether the sentencing court correctly revoked
defendant’s probation necessarily depends on an under-
standing of the scope of a sentencing court’s authority. That
authority is circumscribed by statute, as supplemented by a
well-developed body of case law. See, e.g., Berglund, 311 Or
App at 427; State v. Coventry, 290 Or App 463, 464, 415 P3d
97 (2018). A sentencing court’s authority to revoke probation
“exists solely by virtue of a statutory grant of power and
therefore cannot be exercised in any manner not specifically
authorized.” Coventry, 290 Or App at 464 (internal quota-
tion marks omitted). After sentencing for a felony under the
guidelines, the court may “continue[ ] or extend[ ]” a pro-
bationary period at its discretion, ORS 137.545(1)(a), and
the sentencing court “shall retain authority” to “determine
whether conditions of probation have been violated and to
impose sanctions for the violations if the court, at the time
of sentencing, states on the record that the court is retain-
ing such authority[,]” ORS 137.545(2); ORS 137.593(2); OAR
213-010-0001.
Moreover, when a sentencing court initiates a
probation revocation proceeding, the scope of its retained
authority “is tied to particular probation violations—the
ones charged in the affidavit supporting the arrest warrant,”
both of which “must be filed during the probation period.”
Berglund, 311 Or App at 430 (internal quotation marks
omitted). Conversely, the sentencing court lacks authority to
revoke probation based on allegations that are filed after the
probationary period ends, even when the alleged violations
were committed during the probationary period. Miller,
224 Or App at 645; see also Berglund, 311 Or App at 433(“there is no statute conferring [ ] authority” to adjudicate a
Cite as 323 Or App 74 (2022) 77
probation violation that was alleged after the probationary
period has ended). Thus, when a person commits a poten-
tial probation violation during the probationary period, and
then the scheduled end date for probation passes, a sentenc-
ing court must extend probation through a “ ‘deliberate judi-
cial act’ ” before it can adjudicate the alleged violation and
revoke probation on that basis. Berglund, 311 Or App at 432;
State v. Vanlieu, 251 Or App 361, 368-69, 283 P3d 429 (2012)
(an extension of probation “is a deliberate judicial act; it is
not the automatic consequence of the [initiation of proceed-
ings] to revoke a defendant’s probation”).
Turning back to this case, the question that we
must decide is whether defendant’s probation period had
ended before the state filed its supplemental allegation in
December 2019; if so, the sentencing court did not retain
authority to adjudicate that alleged violation. The state
maintains that the probation period had not yet ended
when it filed the supplemental allegation. Initially, the state
argued that the probation period was “effectively tolled” by
operation of law by issuance of the arrest warrant; thus,
when the sentencing court revoked probation, it did so during
the (tolled) probation period. In making that argument, the
state relied on OAR 213-005-0008(3), which provides that
“[t]he time during which the offender has absconded from
supervision and a bench warrant has been issued for the
offender’s arrest shall not be counted in determining the
time served on a sentence of probation.”1
Perhaps recognizing that that position is untenable,
see Vanlieu, 251 Or App at 370 (“[t]here is no indication that
the legislature contemplated” that the probationary period
could be extended by the mere filing of a show cause order;
instead “the legislature conferred authority on trial courts to
deliberately extend probation”), the state’s argument shifted
at oral argument. The state argued that, rather than the
arrest warrant alone “effectively tolling” the probationary
1
The state also argues that ORS 137.010(4) effectively tolled the probation
period in the same manner as OAR 213-2005-0008(3). ORS 137.010(4) applies
only to “an offense other than a felony committed on or after November 1, 1989[.]”
In this case, defendant was sentenced to probation for three felonies, two of which
were committed in March 2014 and one in April 2016. Thus, ORS 137.010(4) is not
implicated in this case, and we do not address it further.
78 State v. LaCoe
period, OAR 213-005-0008(3) first requires an adjudication
of the factual question whether a defendant had absconded;
the court’s determination that the defendant has absconded
then serves to extend the probationary period. The state’s
position aligns with defendant’s understanding of OAR
213-005-0008(3): that it “permit[s] a court to extend proba-
tion beyond its statutory maximum if it is determined that
a probationer has absconded from supervision.” The state,
however, maintains that the sentencing court here made the
necessary finding that defendant had absconded, thereby
extending his probationary period and rendering the sup-
plemental probation violation allegation timely.
After reviewing the text and context of the rule,
we conclude that the parties’ reading is correct—that is,
before a probationary period can be extended under OAR
213-005-0008(3), the sentencing court must first find that
a probationer has absconded from supervision. That conclu-
sion stems from the plain text of the rule, as well as the
statutory context in which it arises.2
OAR 213-005-0008(3) provides that the time in which
a defendant has absconded and a bench warrant has issued
“shall not be counted in determining the time served on a
sentence of probation.” The rule does not, at least not directly,
specify who does the “determining” and when that determi-
nation occurs. But given that a sentencing court’s authority
to extend probation must be a “deliberate judicial act” and
cannot be the automatic consequence of filing a motion to
revoke probation, see Vanlieu, 351 Or at 368, the only logical
reading of the rule is that it is the sentencing court that must
determine whether a defendant has absconded.
That is, as we have explained, before revoking proba-
tion after the scheduled expiration of probation, a sentencing
2
In 1989, the legislature revised the state’s sentencing laws and authorized
the Oregon Criminal Justice Commission to adopt and implement sentencing
guidelines for felonies committed on or after November 1, 1989. State v. Lane,
357 Or 619, 623-24, 355 P3d 914 (2015) (summarizing guidelines) (citing State v.
Nix, 356 Or 768, 775, 345 P3d 416 (2015)); see also Oregon Sentencing Guidelines
Implementation Manual i (1989). The legislature has since expressed approval of
those guidelines, which are codified as administrative rules, although it has not
formally adopted them as statutes. Lane, 357 Or at 624 (citing State v. Langdon,
330 Or 72, 74, 999 P2d 1127 (2000)).
Cite as 323 Or App 74 (2022) 79
court must explicitly extend the probation period through a
“deliberate judicial act.” See Vanlieu, 251 Or App at 369 (“[A]
court may extend probation without finding a violation of a
condition of probation if, in its discretion, it determines that
the purposes of probation are not being served.” (Emphasis
added.)). Given that requirement, in order for time during
which an offender has absconded to be “not * * * counted in
determining the time served on a sentence of probation,”
OAR 213-005-0008(3), the exclusion of that time, and the
consequent extension of the probationary period, must also
be the result of a “deliberate judicial act.” Miller, 224 Or App
at 646 (providing that OAR 213-005-0008(3) “guide[s] the
exercise of judicial discretion in sentencing a defendant for
a probation violation for absconding[.]”). That judicial act
necessarily includes a determination that the offender has
absconded. OAR 213-005-0008(3) (providing for extension
of probationary period for the length of time “during which
the offender has absconded from supervision and a bench
warrant has been issued for the offender’s arrest”). Indeed,
up until that determination, as defendant observes, the
probation violation allegations “are just that—allegations
that the state has not yet proven,” and, consequently, they
do not permit an extension of the probationary period. See
Vanlieu, 251 Or App at 370 (rejecting the idea that a proba-
tion term can be automatically extended by “the mere filing
of a show cause order, even if the allegation of a violation
were meritless”).
That reading is consistent with the statute governing
sanctions for probation violations. Under ORS 137.593(2), for
example, the sentencing court retains authority to “deter-
mine whether conditions of probation have been violated”
so long as the court states on the record that it is retaining
that authority. That provision reflects that it is the sentenc-
ing court that is charged with determining whether a defen-
dant has violated their probation.3
3
Understanding OAR 213-005-0008(3) to require the sentencing court to
first determine whether a defendant has absconded, thereby allowing the sen-
tencing court to deliberately extend the probation period and determine whether
a defendant in fact violated their probation, is also consistent with this court’s
recent case law on the matter. See Berglund, 311 Or App at 432 (“[A]n expan-
sion of the probationary period must be by explicit action of the sentencing
court[.]”); Vanlieu, 251 Or App at 370 (rejecting idea that a probationary term is
80 State v. LaCoe
With that understanding of OAR 213-005-0008(3)
in mind, the question before us is whether the sentencing
court found that defendant had absconded from supervision.
Defendant argues that the sentencing court made no such
finding while the state contends that it did. We conclude
that it did not.
Understanding whether the sentencing court found
that defendant absconded requires understanding the
meaning of “abscond,” as used in the rule. The rule itself
does not define “abscond,” nor is the term defined in the
sentencing guidelines, or Oregon statutes. We thus turn to
other sources. The Supreme Court previously considered
the meaning of “abscond” as used in the Oregon Rules of
Appellate Procedure, which also do not define “abscond,” in
State v. Robbins, 345 Or 28, 188 P3d 262 (2008). In doing so,
the court relied on the dictionary, which defines “abscond”
as: “to depart secretly : withdraw and hide oneself * * *;
specif : to evade the legal process of a court by hiding within or
secretly leaving its jurisdiction.” Id. at 33 (quoting Webster’s
Third New Int’l Dictionary 6 (unabridged ed 2002)); see also
Black’s Law Dictionary 7 (8th ed 2004) (defining “abscond”
as “[t]o depart secretly or suddenly, esp. to avoid arrest,
prosecution, or service of process”). After reviewing the text
of the rule and Oregon case law, the court concluded that
the ordinary meaning of abscond, as defined by the dictio-
nary, most accurately reflected the requirements of the rule.
Robbins, 345 Or at 33-36.
Absent any evidence that the term “abscond” should
have a different meaning under OAR 213-005-0008(3), we
similarly adopt its ordinary meaning for purposes of that
rule. As such, when determining whether a defendant has
absconded from supervision, the sentencing court must con-
sider whether the defendant’s actions show that the defen-
dant intended to evade or avoid legal process, “not simply
that the defendant failed to attend one meeting with a pro-
bation officer or could not be located for a brief period of
time[.]” Robbins, 345 Or at 36.
“automatically” extended by filing of a show cause order); Miller, 224 Or App at
646 (OAR 213-005-0008(3) “guide[s] the exercise of judicial discretion in sentenc-
ing a defendant for a probation violation for absconding[.]”).
Cite as 323 Or App 74 (2022) 81
Here, the trial court made no findings as to whether
defendant had absconded. The state argues that because it
originally alleged that defendant had absconded, the trial
court necessarily found that defendant had absconded when
it substantiated the state’s allegation. The problem with
that argument is that the state did not allege that defen-
dant had absconded, but rather alleged that defendant had
failed to “[r]eport as directed and abide by the direction of
the supervision officer” when he missed a single meeting
with a probation officer. Nor are we persuaded by the state’s
argument that warning a defendant in advance of the meet-
ing with his probation officer that a failure to report “will
be considered as absconding from supervision” constitutes
an allegation of absconding. The state’s pronouncement
of what conduct it thinks may constitute “absconding” is
not equivalent to an allegation that the defendant has
absconded; rather, the state simply informed defendant how
it would view and respond to potential events. The failure
to report can be—but is not necessarily—absconding. See
Robbins, 345 Or at 37 (“A single missed appointment is not
enough to conclude that defendant was hiding or that [they]
sought to evade the court’s jurisdiction.”). However, hav-
ing reviewed the record, we cannot say that the sentencing
court found that defendant had absconded from supervision
when there was no allegation and no judicial finding that
defendant’s actions demonstrated an intention to hide from
or evade the court’s jurisdiction. Thus, here, OAR 213-005-
0008(3) did not provide for an extension of the probationary
period.
Because the sentencing court did not extend proba-
tion through a deliberate judicial act, the probation period
ended in August 2019. Thus, the sentencing court lacked
authority to revoke probation based on the state’s supple-
mental allegation, which was filed four months after the
probation period ended.4
4
We agree with defendant that the error is not harmless. Although the sen-
tencing court could have revoked defendant’s probation based only on the timely
filed probation violation, we cannot say that there is little likelihood that the
untimely allegation affected the revocation decision. A remand for resentencing
is therefore required.
82 State v. LaCoe
Vacated and remanded for resentencing in Case
Nos. 14CR0739FE and 16CR50627; otherwise affirmed;
judgment in Case No. 19CR75454 affirmed.