State v. Berglund ( 2021 )

424
Argued and submitted May 29, 2019, reversed and remanded for resentencing
May 12, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
SEAN TAYLOR BERGLUND,
Defendant-Appellant.
Multnomah County Circuit Court
120646784; A165232
491 P3d 820
Defendant appeals a sentencing judgment revoking his court-supervised pro-
bation. During the initial probation period, the court commenced revocation pro-
ceedings by issuing an arrest warrant, but the revocation hearing was not held
until well after the probation period expired. In connection with the revocation
hearing, and also well after the probation period expired, the state added six
additional probation violation claims, all occurring during the probation period.
Defendant assigns error to the court’s consideration of the additional probation
violation claims. Held: The trial court erred in considering the additional proba-
tion violation claims raised by the state after the probation period ended. The
specific statute that empowers a court to sentence probationers for violations
confines that power to probation violations that are actually charged during the
probation period.
Reversed and remanded for resentencing.
Eric J. Bergstrom, Judge.
Sarah De La Cruz, Deputy Public Defender, argued the
cause for the appellant. Also on the brief 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 Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
SERCOMBE, S. J.
Reversed and remanded for resentencing.
Powers, J., dissenting.
Cite as 311 Or App 424 (2021) 425
SERCOMBE, S. J.
Defendant appeals from a sentencing judgment,
claiming that the trial court erred in revoking his court-
supervised probation. During the period of probation, the
court commenced probation revocation proceedings by
issuing an arrest warrant. The warrant was based on an
alleged probation violation, specified in the supporting affi-
davit, that defendant had pleaded guilty to a crime. Later,
after the probationary period ended, the trial court initiated
supplemental proceedings to revoke probation by ordering a
probation violation hearing based on violations alleged in a
new affidavit. Those charges included the original charge
and six additional probation violation claims. The court
revoked probation after it found that defendant commit-
ted two of the new charges. On appeal, defendant argues
that the trial court lacked authority to revoke his probation
based on charges filed after the conclusion of the probation
period and that the court’s authority to revoke probation is
limited to adjudicating claims brought while the probation
was still in force.
“We review a trial court’s revocation of probation
for errors of law.” State v. Miller, 224 Or App 642, 644,
199 P3d 329 (2008). For the reasons explained below, we
conclude that the trial court erred in revoking probation
based on allegations contained in the post-probation affida-
vit. Accordingly, we reverse the sentencing judgment and
remand for resentencing.
The facts are undisputed. In June 2012, defendant
pleaded guilty to misdemeanor driving under the influence of
intoxicants (DUII) and entered into diversion. In September
2012, defendant was involved in a fatal car accident due to
driving while intoxicated and was indicted for first-degree
manslaughter in May 2013. In June 2013, the court revoked
diversion due to defendant’s involvement in the fatal acci-
dent, entered a judgment of conviction for DUII from the
June 2012 plea, and sentenced defendant to a two-year
probationary sentence, which meant that the probationary
term would have expired in June 2015. In March 2014, the
court issued a probation violation warrant based on an affi-
davit that alleged that defendant had violated his probation
426 State v. Berglund
when he pleaded guilty to second-degree manslaughter as
a result of the September 2012 fatality. A hearing on that
affidavit was scheduled but was set over multiple times.
In January 2017, long after the expiration of the
probation period, the state sought to file a new affidavit
to add new allegations to the original probation violation
claim. Defendant objected and argued that any new charges
would be untimely and that the grounds for revoking pro-
bation were limited to the allegation in the affidavit filed
before the expiration of probation. The court permitted the
state to file an amended affidavit that added new claimed
violations.
The court explained:
“Well, because of the confusing nature of the record, and
the timing of everything, I think it’s probably appropriate
* * * for the State to lay out what they believe the violations
are, and then each side can be prepared to either admit or
prove those violations.”
In March 2017, the state filed the new “affidavit and
order for judicial supervision probation violation” alleging
seven different violations during the probationary period,
including that defendant: (1) pleaded guilty to manslaugh-
ter (the charge in the original affidavit); (2) pleaded guilty
to two counts of contempt in an unrelated case; (3) failed
to complete a drug and alcohol evaluation as required;
(4) failed to complete any and all required drug and alco-
hol treatment; (5) did not comply with the enhanced bench
probation monitoring program or its conditions; (6) drove a
motor vehicle without a license; and (7) left the state with-
out the court’s permission. Based on that affidavit, the trial
court scheduled a probation violation hearing.
In June 2017, the trial court held the probation vio-
lation hearing on the allegations in the March 2017 affida-
vit. At the hearing, the state withdrew the allegation from
the March 2014 affidavit.1 Ultimately, the court found that
defendant violated the conditions of his probation by failing
1
The prosecutor conceded that pleading to the crime of manslaughter that
occurred before the imposition of probation was not a “new law violation” that was
committed during the probationary period.
Cite as 311 Or App 424 (2021) 427
to complete a drug and alcohol evaluation and treatment pro-
gram, as well as leaving Oregon without the court’s permis-
sion. The court entered a judgment revoking probation and
imposed a six-month jail sentence on the DUII conviction.
On appeal, defendant argues that the trial court
erred “in allowing the state to proceed on an untimely filed
affidavit and in revoking probation based on allegations not
contained in the original warrant.” Specifically, defendant
argues that the trial court lacked authority to revoke pro-
bation based on new allegations in the March 2017 affidavit
because those allegations “do not [relate] back to the orig-
inal warrant” and because “a court’s authority to conduct
probation violation hearings after probation has ended is
limited to allegations in the original warrant.”
Defendant explains that the relevant statutes allow
the court authority to adjudicate violations of the conditions
of probation that are charged during the period of probation,
even if the adjudication occurs after probation concludes.
The statutes do not, however, grant the court the authority
to initiate supplemental proceedings, after the expiration of
probation, to punish different probation violations. We agree
with defendant.
The sentencing authority of a court must be
expressly conferred by statute. As stated in State v. Coventry,
290 Or App 463, 464, 415 P3d 97 (2018), a “court’s sentenc-
ing authority exists solely by virtue of a statutory grant of
power and therefore cannot be exercised in any manner not
specifically authorized.” Under ORS 137.593(2)(b),
“* * * [T]he sentencing judge shall retain authority:
“* * * * *
“(b) 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 retaining such authority;
“(c) To cause a probationer to be brought before the
court for a hearing * * * and to revoke probation or impose
such other or additional sanctions or modify the conditions
of probation as authorized by law; and
428 State v. Berglund
“(d) To impose and require an offender to serve a
period of incarceration not to exceed 180 days as a sanction
for revocation of probation.”2
(Emphases added.)
Thus, the express “retain[ed] authority” of a sen-
tencing judge is to “determine whether conditions of proba-
tion have been violated” and then “to revoke probation * * *
as authorized by law.” ORS 137.545(2) provides that pro-
bation revocation authority. It grants the sentencing court
authority to revoke probation “for violating any of the con-
ditions of probation,” provided that proceedings to sanction
those probation violations are initiated “[a]t any time during
the probation period.” That statute provides, in part,
“At any time during the probation period, the court may
issue a warrant and cause a defendant to be arrested for
violating any of the conditions of probation.”
ORS 137.545(2) (emphasis added). Under ORS 137.545(2),
then, a proceeding to revoke probation is initiated by a war-
rant and its supporting affidavit that must be issued “during
the probation period.”
We have construed ORS 137.545(2) to preclude revo-
cation when the proceedings are initiated after the “time
during the probation period.” See Miller, 224 Or App at
645-46) (noting that, “unless [a] defendant’s probation was
extended either by the court or by operation of law beyond
[its original term], the court commit[s] error by initiating
revocation proceedings * * * and revoking probation at a
later time”); see also State v. O’Neal, 24 Or App 423, 427,
545 P2d 910 (1976) (“[A] court is without authority to revoke
probation for a crime committed during the probationary
period when revocation proceedings have not been initiated
before the probationary period has expired.”).
However, that preclusion does not exist when a
proceeding for violating a condition of probation is initi-
ated “during the probation period” but the adjudication of
2
Under ORS 137.540(7),
“[f]ailure to abide by all general and special conditions of probation may
result in arrest, modification of conditions, revocation of probation or imposi-
tion of structured, intermediate sanctions in accordance with rules adopted
under ORS 137.595.”
Cite as 311 Or App 424 (2021) 429
that violation occurs afterwards. In State v. Ludwig, 218
Or 483, 492, 344 P2d 764 (1959), the court, applying for-
mer ORS 137.550 (1957), renumbered as ORS 137.545 (1999),
concluded,
“Probation is a statutory process and, under laws similar to
ours, it seems to be the general rule that if the revocation
procedure is started properly before the expiration of the
term, the court retains jurisdiction, even though the final
hearing and adjudication are after the end of the probation
period.”
(Emphases added.) Under Ludwig, the court “retains juris-
diction” for the “adjudication” of a particular probation vio-
lation “after the end of the probation period,” provided that
“the revocation procedure is started properly before the
expiration of the term.”
The meaning of “retains jurisdiction” was fleshed
out in our subsequent cases. As noted in State v. Granberry,
260 Or App 15, 23, 316 P3d 363 (2013),
“[The] proper inquiry in this case, as it was in Ludwig, is
whether the trial court had statutory authority to impose
or revoke probation. See State v. O’Neal, 24 Or App 423,
427, 545 P2d 910 (1976) (noting that Oregon has adopted
“the general rule that the sentencing authority of a court
exists solely by virtue of a statutory grant of power and
therefore cannot be exercised in any manner not specifi-
cally authorized”). That statutory inquiry is not a jurisdic-
tional one.
“Thus, notwithstanding the Supreme Court’s occasional
use of the term ‘jurisdiction,’ the issue in Ludwig reduced
to whether the probation statutes in effect at the time
gave the trial court the statutory authority to conduct a
probation-violation proceeding after the defendant’s term
of probation had expired.”
(Emphases in original.)
Thus, the inquiry is whether the “retain[ed] author-
ity” of a sentencing court under ORS 137.593(2)(b), to “deter-
mine whether [certain] conditions of probation have been
violated and to impose sanctions for [those] violations” exists
for probation violations that have been noticed and charged
at a different time than “during the probation period” under
ORS 137.545(2).
430 State v. Berglund
The controlling statutes, noted above, and their
context compel the conclusion that the retained author-
ity of a sentencing court to adjudicate a probation viola-
tion is limited to violations that are reported and charged
during the probation period. That conclusion is evident
from the wording of ORS 137.545(2) and ORS 137.593(2)(b),
the fundamental nature of probation revocation proceed-
ings as “violation-specific,” the holdings to that effect in
State v. Vanlieu, 251 Or App 361, 283 P3d 429 (2012), and
Ludwig, and the recognition in our case law that an explicit
expansion of the period of probation is necessary to add
supplemental probation violations as additional bases for
sanctions.
First, as noted, the probation revocation proceeding
authorized by ORS 137.593(2)(b) (“[t]o determine whether
conditions of probation have been violated and to impose
sanctions for the violations”) is a proceeding to make a
determination about specific probation violations. The pur-
pose of a probation revocation hearing is to punish the
conduct constituting the specific, charged probation viola-
tion. State v. Patterson, 269 Or App 226, 236, 344 P3d 497
(2015). The “retain[ed] authority” of a court referenced in
ORS 137.593(2)(b), that continues during and after proba-
tion, is to do just that, to adjudicate the specific, charged
violations—and no more.
Thus, the scope of a court’s retained authority
under ORS 137.593(2)(b) is tied to particular probation
violations—the ones charged in the affidavit supporting the
arrest warrant issued during the probation period. The affi-
davit supporting the arrest warrant details the specifics of
the violations of the conditions of probation. Importantly,
the affidavit and arrest warrant must be filed “during the
probation period” under ORS 137.545(2). Those charged vio-
lations are then adjudicated in the “violation * * * hearing”
referenced in ORS 137.545(3).3
3
ORS 137.545(3) allows the magistrate authority to “release the probationer
upon the condition that the probationer appear in court or at a later date for
a probation violation or revocation hearing.” See also ORS 137.595(2)(b) (analo-
gously describing “written notice of the probationer’s right to a hearing before the
court to determine whether the probationer violated the conditions of probation
alleged in a probation violation report”).
Cite as 311 Or App 424 (2021) 431
A probationer has a right to notice of specific,
claimed probation violations, and the revocation proceeding
is limited to those noticed violations under the due process
clause of the Fourteenth Amendment to the United States
Constitution.4 Thus, the statutes and the federal constitu-
tion make probation revocation proceedings specific to the
noticed charges.
Simply put, the “retain[ed] authority” under ORS
137.593(2)(b) to adjudicate specific probation violations
that are charged during the probation period is the same
as the “retained jurisdiction” reserved by the Ludwig court
to “adjudicat[e]” probation violations after the ending of the
probationary period. That is the way we viewed the scope
of the proceedings in Vanlieu. There, we concluded that a
court lacks authority to revoke a defendant’s probation
based solely on conduct that occurred after expiration of the
designated probationary term. In reaching that conclusion,
we determined,
“If a probation violation proceeding is commenced before the
probationary period is set to expire, the trial court retains
authority to hold a hearing on the charged violation after the
date on which the probationary term would have expired.”
251 Or App at 364 (emphasis added). In confining the retained
authority to be one for the sanctioning of “the charged viola-
tion,” we relied on Ludwig and the holding in Bryant v. State,
233 Or 459, 464, 378 P2d 951 (1963), that the issuance of
an arrest warrant during the probationary period “preserved
[the trial court’s] jurisdiction to proceed with the pending mat-
ter as soon as warrants could be executed.” (Emphasis added.)
Again, the retained authority is limited to “the charged vio-
lation,” the violation noticed in the initiating action, and “to
proceed with the pending matter.” It is not greater and does
not include violations charged after the conclusion of the pro-
bationary period that are not a part of the “pending matter.”
4
In Morrisey v. Brewer, 408 US 471, 489, 92 S Ct 2593, 33 L Ed 2d 484(1972), the Court held that the minimum due process rights extended to a parolee
during parole revocation proceedings included “written notice of the claimed vio-
lations of parole,” as well as a “written statement by the factfinders as to the evi-
dence relied on and the reasons for revoking parole.” The Court later concluded
that those rights apply equally to probation revocation proceedings. Gagnon v.
Scarpelli, 411 US 778, 782, 93 S Ct 1756, 36 L Ed 2d 656 (1973).
432 State v. Berglund
The state argues that the filing of a probation viola-
tion charge during the period of probation gives a sentenc-
ing court carte blanche authority to sanction a probationer
for any violation of the conditions of probation, even when
the specific probation violation charge is initiated after the
conclusion of probation. It argues that “the commencement
of the probation-violation proceeding essentially tolls the
termination of probation.” Although the state disclaims it,
its position appears to be that the supervising period of pro-
bation is implicitly extended by the filing of a probation revo-
cation proceeding, so that new probation violation charges,
dating from the original period of probation, can be brought
during that extended period of supervision.
As noted, however, any sentencing authority must
be expressly conferred by statute and is not implied. Vanlieu
confirms that principle, concluding that an expansion of the
probationary period must be by explicit action of the sen-
tencing court under its statutory authority:
“An extension of probation, like a decision to revoke pro-
bation, is a deliberate judicial act; it is not the automatic
consequence of the issuance of a show-cause order to revoke
a defendant’s probation. ORS 137.545(1)(a) provides that
‘[t]he period of probation shall be as the court determines
and may, in the discretion of the court, be continued or
extended.’ Under that statute, 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. State v. Stanford, 100 Or App 303, 306,
786 P2d 225 (1990); State v. Jacobs, 71 Or App 560, 565-66,
692 P2d 1387 (1984). In Stanford, we held that,
“ ‘[a]lthough defendant’s original probation period
had expired on June 26, 1988, three years after his con-
viction, the trial court nevertheless retained jurisdic-
tion to modify and extend probation, because the state
filed its motion before that date. We said in [Lopez, 30
Or App at 691]: “[W]here the ‘show cause’ order initiat-
ing the revocation process is itself issued prior to the
expiration of the probationary period, the court retains
jurisdiction to enter a revocation order after the period
has expired.” We apply the same analysis to a probation
extension.’
“100 Or App at 307 n 3 (second brackets in Stanford).”
Cite as 311 Or App 424 (2021) 433
251 Or App at 368-69 (brackets in original; footnote omit-
ted); see also O’Neal, 24 Or App at 426-27 (no tolling of the
probationary period by the consequences of defendant’s con-
duct since such an extension would need to be specifically
authorized by statute).5
Thus, the state’s suggestion that the effect of a
timely initiation of probation revocation proceedings is to
implicitly extend the period of probation to allow the filing of
new charges within the expanded probationary period is not
correct. The sentencing court lacks that implicit authority.
Its authority is confined to that explicitly conferred by ORS
137.545(2)—to adjudicate charges filed “during the proba-
tion period.”6
In sum, the authority of a sentencing court to adju-
dicate probation violations charged after the end of the pro-
bationary period must be explicitly conferred by statute.
There is no statute conferring that authority. And the stat-
utes that govern the retained authority of a court to sanc-
tion probation violations confine that authority to violations
that are charged “[a]t any time during the probation period.”
No such violation was sanctioned here.
Our holding—that the state should supervise the
probation of its probationers and charge violations it discovers
as a result of that supervision in a timely way—is based on
the statutory obligations of the state to do just that. That hold-
ing minimizes the risk of unfairness to probationers in having
to defend against stale claims that were evident, unfiled, and
not noticed during a long-concluded probation period.
Reversed and remanded for resentencing.
5
Cf. OAR 213-005-0008(3) (“The 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.”).
6
We reject the state’s contention that the later charges relate back to the
original affidavit because the sentencing statutes do not create that effect. In
other legal settings, the ability of amended allegations to “relate back” to the time
of the initial filing must be expressly authorized and is not implied. Compare, e.g.,
ORCP 23 C (relation back of amended pleadings in civil proceedings), with ORS
131.105 (“A criminal action must be commenced within the period of limitation
prescribed in ORS 131.125 to 131.155.”) and State v. Kuznetsov, 345 Or 479, 489,
199 P3d 311 (2008) (amendment of accusatory instrument does not relate back to
the original indictment).
434 State v. Berglund
POWERS, J., dissenting.
The trial court’s authority to adjudicate allegations
that defendant violated his probation is not, in my opinion, as
circumscribed as the majority opinion concludes. Defendant
advances a single assignment of error that contends that
the trial court erred when it revoked probation based on
allegations in an amended affidavit supporting a warrant
that “was not timely, because it was filed after defendant’s
probation expired and it contained new allegations that
were not present” in the original affidavit filed to revoke
probation. Defendant further argues that, because of those
deficiencies, the trial court “lacked authority” to revoke pro-
bation. In concluding that the trial court lacked authority to
revoke probation, the majority opinion proceeds as if there
were “supplemental proceedings” to revoke probation that
were separate and apart from the probation revocation pro-
cess that began with the issuance of a probation violation
warrant in March 2014. I respectfully dissent.
As an initial matter, some deck clearing is in order.
Defendant does not challenge on appeal the trial court’s
findings that he violated his probation as alleged in the
March 2017 affidavit, nor does he argue that the court
abused its discretion when it revoked his probation based
on those findings. Likewise, defendant does not challenge
the sentence that the trial court imposed when it revoked
probation. Thus, as framed by defendant’s arguments on
appeal, the narrow issue before us is whether the trial court
had the authority to revoke probation based on allegations
contained in the amended affidavit.
It is well settled that when “a circuit court com-
mences a revocation proceeding during a defendant’s period
of probation, through a show cause order or a bench warrant,
the court retains jurisdiction over the defendant even after
probation ends.” State v. Miller, 224 Or App 642, 645, 199
P3d 329 (2008); see also State v. Ludwig, 218 Or 483, 492,
344 P2d 764 (1959) (explaining that “[p]robation is a statu-
tory process and, under laws similar to ours, it seems to be
the general rule that if the revocation procedure is started
properly before the expiration of the term, the court retains
jurisdiction, even though the final hearing and adjudication
Cite as 311 Or App 424 (2021) 435
are after the end of the probation period”).1 It is also well
settled that “a court lacks authority to revoke probation for
an action that a probationer committed during the proba-
tionary period when revocation proceedings have not been
initiated before the probationary period has expired.” Miller,
224 Or App at 645. Importantly, “[a]n extension of probation,
like a decision to revoke probation, is a deliberate judicial
act; it is not the automatic consequence of the issuance of a
show-cause order to revoke a defendant’s probation.” State v.
Vanlieu, 251 Or App 361, 368-69, 283 P3d 429 (2012).
In Vanlieu, we held that the trial court “lacked
authority to revoke defendant’s probation based solely on
conduct that occurred after the expiration” of the probation-
ary term. Id. at 362. In that case, the trial court imposed
an 18-month probationary term that was later extended
to January 2003. In December 2002, the defendant was
arraigned on a show cause order and a probation violation
hearing was scheduled for February 2003. Ultimately, the
defendant failed to appear at several hearings and eventu-
ally was arrested seven years later in April 2010. The court
amended the show cause order to add new allegations that
the defendant had violated his probation conditions based
on conduct that had occurred after January 2003. When the
case finally proceeded to a hearing on the amended show
cause order, the court ultimately revoked probation based on
a number of the newly added allegations, and the defendant
appealed. Id. at 363.
We first rejected the defendant’s argument that,
because the trial court did not issue a warrant for his arrest
during the probationary period, the court lacked authority
to revoke his probation after the probationary period had
expired. We concluded that, when a trial court initiates a
revocation proceeding during a defendant’s term of probation
1
Although some decisions discuss the inquiry as one of “jurisdiction,” I
agree with the framing by the majority opinion that the proper inquiry is one of
statutory “authority,” viz., whether a trial court has the authority to adjudicate
a probation-violation proceeding after probation was set to expire. See State v.
Granberry, 260 Or App 15, 23, 316 P3d 363 (2013) (observing that, “notwithstand-
ing the Supreme Court’s occasional use of the term ‘jurisdiction,’ the issue in
Ludwig reduced to whether the probation statutes in effect at the time gave the
trial court the statutory authority to conduct a probation-violation proceeding
after the defendant’s term of probation had expired” (emphases omitted)).
436 State v. Berglund
either through a show cause order or a bench warrant, the
court retains authority over the defendant even after the
probation ends. Id. at 367-68.
The defendant alternatively argued that the court
did not have the authority to revoke probation based solely
on conduct that occurred after the term of his probation
expired. We agreed with that argument:
“[T]he state did not move to extend * * * defendant’s proba-
tion at any time; nor did the trial court exercise its discre-
tion to do so. Instead, by issuing a show cause order to com-
mence a probation violation proceeding before defendant’s
probationary period expired, the court reserved its author-
ity to adjudicate and sanction the violation that the state
alleged. But, without extending defendant’s probation, the
court’s reserved authority was limited.”
Id. at 369. Focusing on that reasoning, defendant in this case
argues that the trial court had “limited” authority to adju-
dicate and sanction any allegations in a show cause order
or warrant filed during the probationary period, but “does
not have authority to revoke probation for subsequently filed
allegations.” In my view, Vanlieu is not so restrictive.
As noted earlier, we previously have held that a court
retains authority over a defendant—even after probation
ends—if the proceeding is initiated through a show-cause
order or a bench warrant. See Miller, 224 Or App at 645.
Defendant does not challenge that underlying premise, and
he does not contest the premise that a probation-violation
proceeding was initiated in March 2014. Instead, he argues,
and the majority opinion agrees, that Vanlieu limited the
court’s authority to the allegations identified before proba-
tion ends. Although that is a plausible interpretation, I ulti-
mately conclude that it has little support in Vanlieu or in the
statutory framework governing probation.
To be sure, Vanlieu held that misconduct outside of
the probationary period could not be the sole basis on which
a trial court revokes probation. In so concluding, we rea-
soned that “there is no indication that the legislature con-
templated” a situation where a defendant’s probationary
period would be extended automatically due to the “mere
filing of a show-cause order[.]” Vanlieu, 251 Or App at 370.
Cite as 311 Or App 424 (2021) 437
Thus, because the trial court did not exercise its discretion
to extend the defendant’s probation, “nor did it find that
defendant violated the terms of his probation before it was
set to expire,” the court “lacked authority to revoke defen-
dant’s probation based on misconduct that occurred after
his probationary period had expired.” Id.In this case, however, the trial court’s authority
did not depend on defendant’s probationary period being
extended. That is so, because the two grounds for revocation
were events that had occurred within defendant’s probation-
ary term and not, like Vanlieu, on events occurring after the
probationary period expired. Moreover, defendant has not
argued on appeal that the trial court abused its discretion
when it allowed the state to amend the allegations. Further,
there is no dispute that, by issuing the warrant in March
2014, the trial court initiated probation-violation proceed-
ings “during the probation period,” as required by ORS
137.545(2).2 In short, like Ludwig, Miller, and similar cases,
the trial court retained authority to adjudicate alleged mis-
conduct that occurred during the term of probation, even
though the final hearing and adjudication was outside the
probationary period.
Further, there is nothing in the statutory frame-
work that suggests that a trial court lacks authority to
act on amended allegations. Rather, as the Supreme Court
2
ORS 137.545 provides, in part:
“(2) At any time during the probation period, the court may issue a war-
rant and cause a defendant to be arrested for violating any of the conditions
of probation. * * * If the offender does not consent to structured, intermediate
sanctions imposed by the parole and probation officer or supervisory person-
nel in accordance with the rules adopted under ORS 137.595, the parole and
probation officer, as soon as practicable, but within one judicial day, shall
report the arrest or detention to the court that imposed the probation. The
parole and probation officer shall promptly submit to the court a report show-
ing in what manner the probationer has violated the conditions of probation.
“(3) Except for good cause shown or at the request of the probationer, the
probationer shall be brought before a magistrate during the first 36 hours of
custody, excluding holidays, Saturdays and Sundays. That magistrate, in the
exercise of discretion, may order the probationer held pending a violation or
revocation hearing * * *. In lieu of an order that the probationer be held, the
magistrate may release the probationer upon the condition that the proba-
tioner appear in court at a later date for a probation violation or revocation
hearing.”
438 State v. Berglund
observed in State v. Donovan, 305 Or 332, 335, 751 P2d 1109(1988), and Gebhart v. Gladden, 243 Or 145, 150, 412 P2d 29(1966), probation revocation hearings are less formal than a
criminal trial. The court explained that a probation revoca-
tion hearing “is summary in nature” and that “[t]rial judges
have great discretion in controlling the nature and scope
of summary hearings.” Gebhart, 243 Or at 150. Indeed, in
Vanlieu and other cases, we have explained that, under ORS
137.545(1)(a), a court may extend probation without finding
a violation of a probation condition if the court, in its dis-
cretion, determines that the purposes of probation are not
being served. Vanlieu, 251 Or App at 369; see also State v.
Stuve, 111 Or App 197, 199, 826 P2d 24, rev den, 313 Or 300(1992) (noting that “[t]he court has authority to extend pro-
bation without finding a violation”).
Finally, to the extent that defendant and the major-
ity opinion rely on the analogy that a show cause order or
bench warrant affidavit is akin to an accusatory instrument
in a criminal proceeding, I would reject that argument. See
State v. Lindquist, 192 Or App 498, 504, 86 P3d 103 (2004)
(holding that “the initiation of a probation violation proceed-
ing does not commence a prosecution”); see also Donovan,
305 Or at 335 (recognizing that a probation revocation hear-
ing “is not easily categorized as either criminal or civil” and
explaining that the burden of proof is the lower standard
used in civil cases). Further, I respectfully disagree with the
majority opinion proceeding on the assumption that these
were “supplemental proceedings” to revoke probation. The
probation-violation proceedings were initiated in March
2014 when the trial court issued a probation violation war-
rant. That hearing was set over multiple times, the state
was allowed to amend the allegations, and that proceed-
ing concluded with the trial court revoking probation. The
majority opinion unduly bifurcates the probation-violation
proceedings and then searches for authority for the trial
court to act on the amended allegations.
I respectfully dissent.