State v. Dawn ( 2024 )

No. 737 October 16, 2024 523
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
GEORGE BARON DAWN,
Defendant-Appellant.
Marion County Circuit Court
22CN04853; A181116
Matthew L. Tracey, Judge pro tempore.
Submitted September 5, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Affirmed.
524 State v. Dawn
AOYAGI, P. J.
Defendant appeals a judgment of contempt. After
defendant admitted to contempt of court for violating a
restraining order, the trial court imposed a punitive sanction
of 100 days in jail, consecutive to defendant’s existing sen-
tences in another case for crimes against the same victim.
On appeal, defendant argues that the court plainly erred in
making the contempt sanction consecutive to his criminal
sentences. We are unpersuaded that the court plainly erred
and, accordingly, affirm.
While serving a prison sentence for crimes includ-
ing assault, defendant wrote a letter to the victim, thereby
violating the terms of a restraining order. Defendant admit-
ted to contempt of court but argued for a concurrent sanc-
tion, asserting that making the sanction consecutive to his
current prison sentence “would result in approximately 17
months of additional time.”1 The trial court acknowledged
that “consecutive time has a greater weight in a circum-
stance where you are serving DOC time.” Nevertheless, the
court imposed a consecutive sanction, finding that defen-
dant’s letter to the victim was “manipulative” and that a
concurrent sanction for violating the restraining order
would not be “appropriate or proportionate.”
On appeal, defendant argues that the trial court
plainly erred by imposing the punitive contempt sanction
consecutive to his prison sentences, because the court lacked
authority to do so under ORS 33.105(2). Defendant did not
argue below that the court lacked authority to impose
the sanction consecutively, so he seeks plain-error review.
“Generally, an issue not preserved in the trial court will not
be considered on appeal.” State v. Wyatt, 331 Or 335, 341,
15 P3d 22 (2000). However, we have discretion to correct a
1
It is not entirely clear from the record why a consecutive jail sanction for
contempt would have that result. According to defendant, an adult in custody
(AIC) with a detainer for an unserved jail sentence receives a higher custody clas-
sification that makes the AIC ineligible for alternative incarceration programs.
Having reviewed the administrative rules cited by defendant, OAR 291-104-
0116 and OAR 291-062-0130(1)(c), we are unable to discern the impact that the
contempt sanction would have on his custody classification, but OAR 291-062-
0130(6)(c) does provide that an AIC is not eligible to participate in alternative
incarceration programs if the AIC has “a current detainer.”
Nonprecedential Memo Op: 335 Or App 523 (2024) 525
“plain” error. ORAP 5.45(1). An error is “plain” when it is an
error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a mat-
ter of discretion whether we will correct a plain error. State
v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006).
The premise of defendant’s argument is that a trial
court’s authority in imposing punitive contempt sanctions
is limited to what is expressly authorized in ORS 33.105(2).
The state responds that “[r]esolving defendant’s argument
would require extensive engagement with the text and
context of ORS 33.105 and ORS 137.123,” beyond what is
appropriate on plain-error review. See State v. Johnson, 329
Or App 57, 63, 540 P3d 73 (2023) (“To conclusively resolve
this legal issue of first impression, we would have to engage
in an in-depth analysis of statutory text, context, and legis-
lative history to a degree that exceeds the bounds of plain-
error review.”).
We agree with the state. That is, we agree that the
alleged error is not “plain,” because whether the trial court
had authority to impose the contempt sanction consecutively
to defendant’s criminal sentences is not a legal point that is
“obvious” or beyond reasonable dispute. Vanornum, 354 Or
at 629 (requirements for “plain” error).
We find the case law on which defendant relies to be
distinguishable. In Frost v. Lotspeich, 175 Or App 163, 174,
30 P3d 1185 (2001), the trial court barred a self-represent-
ing attorney from any participation in a fee hearing after he
engaged in contemptuous conduct. On appeal, we held that
the trial court lacked statutory authority to impose that
summary sanction for contempt, because it is not a permis-
sible sanction under ORS 33.105, and also lacked inherent
authority to impose such sanction, because the legislature
has permissibly limited the available sanctions by statute.
Id. at 176-77. This case is not comparable. Here, the statute
clearly authorizes a 100-day jail sanction, see ORS 33.105(2)(c)
(allowing a punitive sanction of “[c]onfinement for not more
than six months”), and the statute is entirely silent on the
timing issue in dispute.
526 State v. Dawn
Defendant also relies on State v. Trice, 146 Or App
15, 21, 933 P2d 345, rev den, 325 Or 280 (1997), which
involved a sentencing issue for a juvenile waived into adult
court on murder charges. We held in Trice that a crimi-
nal sentence in adult court cannot be run consecutively to
a juvenile adjudication, because a juvenile adjudication is
not a “sentence,” and ORS 137.123 permits a criminal sen-
tence to run consecutively only to another “sentence.” Id. at
20-21. But as defendant acknowledges, punitive contempt is
not a crime, and punitive contempt sanctions are not sen-
tences, State v. Clardy, 292 Or App 890, 891, 422 P3d 434
(2018), so ORS 137.123 does not apply here. If it did, the trial
court actually would have had express authority to impose
the sanction consecutively in these circumstances. See ORS
137.123(3) (“When a defendant is sentenced for a crime com-
mitted while the defendant was incarcerated after sentenc-
ing for the commission of a previous crime, the court shall
provide that the sentence for the new crime be consecutive
to the sentence for the previous crime.”). Because it does not,
we are left with ORS 33.105, which is simply silent on the
issue.
Ultimately, we are unpersuaded that the trial court
committed a “plain” error by imposing the punitive con-
tempt sanction consecutively to defendant’s existing prison
sentences. Whether the trial court lacked authority to do so
is not “obvious” and is reasonably in dispute, so any error is
not plain.
Affirmed.