State v. Stark

No. 34 August 15, 2013 1
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
NILE TERRENCE STARK,
Petitioner on Review.
(CC 08040789; CA A144974; SC S060384)
On review from the Court of Appeals.*
Argued and submitted March 12, 2013.
Andrew D. Robinson, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Gregory A. Rios, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder,
Landau, and Baldwin, Justices.**
WALTERS, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
**  Appeal from Linn County Circuit Court, John A. McCormick, Judge. 248
Or App 573 (2012).
**  Brewer, J., did not participate in the consideration or decision of this case.
2 State v. Stark
Defendant challenged his conviction for the crime of felon in possession of
a firearm, arguing that, when he possessed the firearm in question, he was not
a “person who has been convicted of a felony” within the meaning of the felon-
in-possession statute, ORS 166.270. Defendant acknowledged a prior felony
conviction, but he argued that, because the trial court that entered the judgment
of conviction had later issued an order, and then a judgment, stating that that
conviction was for a misdemeanor, his case fell under subsection (3)(a) of ORS
166.270, which states that an apparent felony conviction “shall not be deemed a
conviction of a felony if * * * the court declared the conviction to be a misdemeanor
at the time of judgment.” The trial court rejected that argument and defendant
was convicted. The Court of Appeals affirmed the conviction, holding that
subsection (3)(a) of ORS 166.270 refers only to declarations made by courts at the
time of the original judgment of conviction, and that, once a judgment is entered
convicting a person of a felony, a later order or judgment reducing that conviction
to a misdemeanor cannot alter the person’s status as a felony for purposes of
the statute. Held: Although ORS 166.270(3)(a) may apply to declarations of
misdemeanor status in judgments of conviction entered subsequent to the
original judgment, no such subsequent judgment was in effect at the time the
accused was found in possession of a firearm.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 354 Or 1 (2013) 3
WALTERS, J.
Defendant challenges his conviction for the crime of
felon in possession of a firearm, arguing that, when he pos-
sessed the firearm in question, he was not a “person who has
been convicted of a felony” within the meaning of the felon-
in-possession statute, ORS 166.270. Paragraph (3)(a) of
that statute provides that a conviction shall not be deemed
a felony conviction if, “at the time of judgment,” the court
declared the conviction to be a misdemeanor. We interpret
that paragraph to refer not only to the original judgment of
conviction, but also to subsequent judgments of conviction
entered prior to an accused’s firearm possession. In this case,
we conclude that the court had not declared defendant’s
conviction to be a misdemeanor in the original or a subse-
quent judgment of conviction by the time that defendant pos-
sessed the firearm in question. Accordingly, we reject defen-
dant’s claim of error and affirm his conviction on the felon-
in-possession charge.
The following undisputed facts appear in the record.
In 2004, defendant was convicted in Marion County Circuit
Court of felony possession of a controlled substance and was
sentenced to 18 months of supervised probation. The judgment
of conviction included a handwritten notation: “If defendant
successfully completes probation with no violations, [he]
may apply to [the] court for misdemeanor treatment.”
When defendant completed his probation early in
2006, he moved the Marion County Circuit Court for “an
order reducing the charge in the present case from a felony
to a misdemeanor.” In an affidavit attached to the motion,
defendant explained that he was seeking reduction to a
misdemeanor because he thought that would give him a
better chance of obtaining employment. The state informed
the court that it did not object, and the court, “having
reviewed the files and records herein and good cause appear-
ing,” issued an order on March 29, 2006, reducing defendant’s
felony conviction to a misdemeanor.
4 State v. Stark
Some years later, in 2008, police discovered a hand-
gun in defendant’s possession.1 Defendant subsequently was
charged, this time in Linn County Circuit Court, with being
a felon in possession of a firearm, ORS 166.270. Before the
matter came to trial, defendant moved in Marion County
Circuit Court for a judgment “memorializing” that his 2004
drug conviction had been for a misdemeanor. That court
issued a judgment stating that “defendant [was] guilty of
a misdemeanor *  * and has been since *  * 2004.” Later,
*  *
the court vacated that judgment and entered a different
judgment that was worded in terms of granting defendant’s
motion to reduce his felony conviction to a misdemeanor.
The latter judgment, dated January 5, 2009, purported to
be “nunc pro tunc” to March 29, 2006, the date of the order
reducing the 2004 felony conviction to a misdemeanor.
At trial, defendant moved for a judgment of acquit-
tal on the felon-in-possession charge, arguing that, in light
of the January 5, 2009, judgment that purported to retro-
actively reduce his conviction to a misdemeanor, the state
could not establish that, at the time that he possessed the
firearm in question, he was a “person who has been convicted
of a felony.” ORS 166.270(1). Relying on the statutory defi-
nition of that phrase at ORS 166.270(3), which excludes
circumstances in which “the court declared the conviction
to be a misdemeanor at the time of judgment,” defendant
argued that he was not a “person who has been convicted of
a felony” at the time that he was alleged to have possessed
the firearm. The trial court disagreed with defendant’s
interpretation of ORS 166.270(3) and denied his motion for
a judgment of acquittal. The felon-in-possession charge went
to the jury, which found defendant guilty.
Defendant appealed, arguing, among other things,
that the trial court had erred in denying his motion for a
judgment of acquittal. The Court of Appeals affirmed. The
court concluded that, when ORS 166.270(3)(a) provides that
a “conviction shall not be deemed a conviction of a felony if
*  * the court declared the conviction to be a misdemeanor
*
1
The gun was discovered in the course of a search of defendant’s car, which
occurred when defendant was stopped by police while driving in Linn County. The
validity of the search is not an issue before this court.
Cite as 354 Or 1 (2013) 5
at the time of judgment,” it refers only to declarations made
at the time of the original judgment of conviction. Thus, the
court reasoned, once a judgment is entered convicting a
person of a felony, a later order or judgment reducing that
conviction to a misdemeanor cannot alter the person’s status
as a felon for purposes of the felon-in-possession statute.
State v. Stark, 248 Or App 573, 580, 273 P3d 941 (2012).
Before this court, defendant argues that that inter-
pretation of ORS 166.270(3)(a) is incorrect. He contends that
the phrase “at the time of judgment” refers to the judgment
in effect at the time that the person charged with the crime
possessed the firearm. Employing that construction, defen-
dant contends that his 2004 conviction was adjudged to be a
misdemeanor conviction on March 29, 2006, before the felon-
in-possession issue arose. In that regard, defendant contends
that the order issued by the Marion County Circuit Court on
that date in fact was an erroneously labeled judgment, which
error the same court corrected, retroactively, in its January 5,
2009, “nunc pro tunc” judgment. Thus, this case presents two
questions, one pertaining to the proper construction of ORS
166.270(3)(a), and one pertaining to the timing and effect
of the March 29, 2006, order and the January 5, 2009, judg-
ment issued by the Marion County Circuit Court. For obvious
reasons, the latter question is relevant only if defendant’s
construction of ORS 166.270(3)(a) is correct.
We approach the first (statutory construction) issue
in our usual way, attempting to discern the legislature’s
intent from statute’s text and context and any helpful legis-
lative history. State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009). Our starting point is the text of ORS 166.270,
which provides, in part:
“(1)  Any person who has been convicted of a felony under
the law of this state or any other state, or who has been
convicted of a felony under the laws of the Government of the
United States, who owns or has in the person’s possession or
under the person’s custody or control any firearm commits
the crime of felon in possession of a firearm.
“* * * * *
“(3)  For purposes of this section, a person ‘has been con-
victed of a felony’ if, at the time of conviction for an offense,
6 State v. Stark
that offense was a felony under the law of the jurisdiction
in which it was committed. Such conviction shall not be
deemed a conviction of a felony if:
“(a)  The court declared the conviction to be a misde-
meanor at the time of judgment[.]”
(Emphasis added.) The parties’ disagreement focuses on the
emphasized wording, with the state reading the phrase “the
time of judgment” to mean the time of the original judgment
of conviction, and defendant reading it to mean the time of
the judgment of conviction in effect when the person is found
in possession of a firearm, including a judgment issued after
the original judgment.
Generally speaking, a “judgment” is “the court’s final
determination of the rights and obligations of the parties
in the case.” Black’s Law Dictionary 918 (9th ed 2009).
ORS 18.005(8) defines “judgment,” as used in ORS chapter
18, as “the concluding decision of a court on one or more
requests for relief in one or more actions, as reflected in a
judgment document.”2 (Emphasis added.) Although each
“judgment” that a court issues is, by definition, the “final” or
“concluding” determination of the matter decided, the fact
is that a court may issue a subsequent “judgment” that
supersedes the former—for example, a judgment to correct
a prior judgment, ORS 138.083(1), to comply with an appel-
late court’s remand, or to reduce a felony conviction to a mis-
demeanor conviction after a convicted defendant’s successful
completion of probation, ORS 161.705(d). Thus, when ORS
166.270(3)(a) refers to “the time of judgment,” the question
may arise: “Which judgment?”
Defendant argues that, as used in ORS 166.270(3)(a),
the term “judgment” denotes the last and, thus, final, judg-
ment that a court has entered at the time of the act that
constitutes the other necessary element of the crime of felon-
in-possession—possessing a firearm. Defendant contends
that, if the legislature had intended to refer to something
2
Although the definition of “judgment” in ORS 18.005(8) by its terms applies
to ORS chapter 18, a judgment document in a criminal action must comply with
ORS 18.038 and meet other statutory requirements. ORS 137.071(2).
Cite as 354 Or 1 (2013) 7
other than the judgment in effect at the time of possession,
it would have identified the intended time more specifically.
The state counters that, in this statutory context,
the word “judgment” in ORS 166.270(3)(a) necessarily refers
to the original judgment entered at the time of conviction.
The state derives that conclusion from the repeated use of
the definite article “the” in the phrase “the court declared
the conviction to be a misdemeanor at the time of judgment.”
(Emphases added.) In the state’s view, that phrasing shows
that the legislature had in mind a declaration by a particular
court at a particular time, and not any judgment that a court
might later enter. The state further argues that, because
the introductory wording that precedes ORS 166.270(3)(a)
refers to “the time of conviction for an offense,” it is reason-
able to assume that the legislature had that same time in
mind when it referred in paragraph (3)(a) to “the time of
judgment.”
The state is correct that ORS 166.320(3) includes the
phrase “at the time of conviction”: It provides that a person
“has been convicted of a felony if, at the time of conviction
for an offense, that offense was a felony under the law of the
jurisdiction in which it was committed.” (Emphasis added.)
Paragraph (3)(a) then provides that a conviction shall not be
deemed a felony conviction if the court declared the person’s
conviction to be a misdemeanor “at the time of judgment.”
As we see it, the “time of conviction” phrase in subsection (3)
only relates to the condition necessary to make a conviction
a felony conviction (the offense must be a felony under the
law of the jurisdiction in which it was committed at the time
it was committed) and not to the exemption in paragraph
(3)(a) for a felony conviction that a court has declared to
be a misdemeanor. In fact, the legislature’s use of entirely
different time references in those provisions may indicate
that the legislature did not equate “the time of conviction”
with “the time of judgment.”
Thus, although we agree with the state that the
phrasing of ORS 166.270(3)(a) suggests an intent to refer to a
8 State v. Stark
particular time, we do not think that the legislature intended
to require that a court’s declaration occur only “at the time
of conviction.” So understood, the legislature’s phrasing is
not contrary to defendant’s proposed interpretation. Under
defendant’s interpretation, a court may make the necessary
declaration not only when the court first enters a judgment
of conviction, but also when the court enters a subsequent
judgment categorizing the conviction as a misdemeanor. In
either circumstance, the court declares the conviction to be a
misdemeanor at the time of judgment.
Defendant’s interpretation becomes even more com-
pelling, and the state’s less so, when considered in the con-
text of other statutes that were in effect at the time that
ORS 166.270(3)(a) was enacted.3 Two of those statutes are
particularly relevant—ORS 161.585 (1987) 4 and ORS 161.705
3
ORS 166.270(3)(a) was enacted, in its present form, in 1989. Or Laws 1989,
ch 839, § 4.
4
ORS 161.585 (1987) provided:
“(1)  When a crime punishable as a felony is also punishable by imprison-
ment for a maximum term of one year or by a fine, the crime shall be classed
as a misdemeanor if the court imposes a punishment other than imprisonment
under ORS 137.124(1).
“(2)  Notwithstanding the provisions of ORS 161.525, upon conviction of
a crime punishable as described in subsection (1) of this section, the crime is
a felony for all purposes until one of the following events occurs, after which
occurrence the crime is a misdemeanor for all purposes:
“(a)  Without granting probation, the court imposes a sentence of impris-
onment other than to the legal and physical custody of the Department of
Corrections.
“(b)  Without granting probation, the court imposes a fine.
“(c)  Upon revocation of probation, the court imposes a sentence of impris-
onment other than to the legal and physical custody of the Department of
Corrections.
“(d)  Upon revocation of probation, the court imposes a fine.
“(e)  The Court declares the offense to be a misdemeanor, either at the time
of granting probation, upon suspension of imposition of sentence, or on appli-
cation of defendant or the probation officer of the defendant thereafter.
“(f)  The court grants probation to the defendant without imposition of sen-
tence upon conviction and defendant is thereafter discharged without sentence.
“(g)  Without granting probation and without imposing sentence, the court
declares the offense to be a misdemeanor and discharges the defendant.”
ORS 161.585 (1987) was amended by the same legislature that enacted the present
wording of ORS 166.270(3)(a), to make it applicable “only to persons convicted of a
felony committed prior to November 1, 1989.” Or Laws 1989, ch 790, § 52. Subse-
quent legislatures made minor changes that are not relevant to the present issue.
Or Laws 1993, ch 14, § 18; Or Laws 2005, ch 264, § 15.
Cite as 354 Or 1 (2013) 9
(1987).5 Under both of those statutes, certain crimes that other-
wise would be classified as felonies could, under described
circumstances, be classified as misdemeanors. ORS 161.585
(1987) generally addressed the effect of certain sentencing
decisions on the conviction’s classification. Paragraphs (2)(a)
to (d) and (f) of that statute provided that a felony conviction
could be reduced to a misdemeanor conviction at the time of,
and by virtue of, sentencing decisions and subsequent events
that effectively precluded imprisonment in a Department
of Corrections facility. Those paragraphs did not require a
particular decision by the court that the offense should be
treated as a misdemeanor; rather, the reduction occurred
by operation of law. In contrast, ORS 161.585(2)(e) and (g)
(1987) provided that a court could decide to reduce a felony
conviction to a misdemeanor conviction by imposing no
sentence or a sentence other than imprisonment and then
expressly “declar[ing]” the conviction to be a misdemeanor.
At least one of those provisions—paragraph (2)(e)—con-
templated that the court could make such a declaration after
the original judgment of conviction and sentence.
ORS 161.705 (1987) also gave (and continues to
give) a trial court authority to reduce a felony conviction to a
misdemeanor conviction, but did so by authorizing the court
5
ORS 161.705 (1987) provided:
“(1) Notwithstanding ORS 161.525, the court may enter judgment of
conviction for a Class A misdemeanor and make disposition accordingly when:
“(a)  A person is convicted of any Class C felony; or
“(b)  A person is convicted of a Class B felony pursuant to ORS 475.992(2)(a);
or
“(c)  A person is convicted of the Class B felony of possession of marijuana
pursuant to ORS 475.992(2)(4)(a); or
“(d)  A person convicted of any of the felonies described in paragraph (a)
to (c) of this subsection, or of a Class A felony pursuant to ORS 166.720, has
successfully completed a sentence of probation; and
“(e)  The court, considering the nature and circumstances of the crime and
the history and character of the defendant, believes that it would be unduly
harsh to sentence the defendant for a felony.
“(f)  This section does not apply, however, in cases subject to ORS 475.995.”
ORS 161.705 has since been amended (1) to remove the exception set out
in paragraph (f) above, Or Laws 2005, ch 708, § 48; and (2) to clarify that the
additional requirement set out at paragraph (e), that is, the requirement that the
court believe that it would be unduly harsh to sentence the defendant for a felony,
applies to each of the four preceding paragraphs, Or Laws 2009, ch 610, § 2.
10 State v. Stark
to “enter a judgment” altering the classification of a defen-
dant’s offense: Such reduction could occur only if the trial
court, considering the circumstances, thought “that it would
be unduly harsh to sentence the defendant for a felony.” ORS
161.705(1)(e) (1987).
Those statutes demonstrate that, before 1989 when
the current version of ORS 166.270(3)(a) was enacted, a
judgment convicting a defendant of a felony and imposing
a sentence of probation could be superseded, in certain
circumstances, by a later declaration or judgment entered
after the sentence of probation was completed, changing the
conviction to a misdemeanor. The 1989 legislative assembly
that enacted the present version of ORS 166.270(3) presum-
ably was aware of those statutes and the possibility that a
subsequent judgment could reduce what originally had been
adjudged a felony conviction to a misdemeanor conviction.
See State v. Reams, 292 Or 1, 8, 636 P2d 913 (1981) (court
assumes that the legislature, at time of adoption of new
criminal code, was aware of existing law in Oregon on sub-
ject); State v. Waterhouse, 209 Or 424, 436, 307 P2d 327
(1957) (“Knowledge on the part of the legislature of *  * *
earlier enactments is presumed”). Cf. State v. Clevenger, 297
Or 234, 244, 683 P2d 1360 (1984) (legislature is presumed
to be aware of the Supreme Court’s decisions). Insofar as the
unmodified term “judgment” can pertain to both original
and subsequent judgments, it would seem that, if the 1989
legislative assembly had intended to make only the original
felony judgment, and not the subsequent misdemeanor judg-
ment, relevant to a determination of a person’s status as
a felon for purposes of that statute, it would have signaled
that intent instead of using the more general term “judg-
ment.”6 The legislature’s omission of any such signal, in
that statutory context, suggests that the legislature did not
intend that the term “judgment” mean only the original
judgment.7
6
We note, in that regard, that when courts refer to judgments other than the
most recent and, thus, most final judgment, they tend to use more specific terms,
such as “original judgment.” See, e.g., State v. Ainsworth, 346 Or 524, 526, 213 P3d
1225 (2009) (referring to “original judgment”); State v. Estey, 247 Or App 25, 27,
268 P3d 772 (2011) (same).
7
The 1989 legislative assembly that enacted the current wording of ORS
166.270(3)(a) also presumably would have been aware that any judgment of
Cite as 354 Or 1 (2013) 11
The state identifies another statute, ORS 166.274,
as relevant context for interpreting the phrase “the time of
judgment” in ORS 177.270(3)(a). That statute provides that
a person who is barred from possessing a firearm under
ORS 166.270 may file a petition for relief from the bar in
the circuit court for the person’s county of residence, ORS
166.274(1), (2), and may be granted such relief if he or she
demonstrates, “by clear and convincing evidence, that the
petitioner does not pose a threat to the safety of the public or
the petitioner,” ORS 166.274(7). The state argues that that
provision demonstrates that the legislature intended that
convicted felons follow that prescribed procedure to have
their gun-possession rights restored and that defendant’s
expansive reading of ORS 166.270(3)(a) would frustrate
that legislative intent by allowing felons to obtain relief
simply by requesting misdemeanor treatment.
The state’s argument has the tail wagging the dog:
It seeks to treat a clearly secondary statute, pertaining to
relief from the prohibition on felons possessing firearms, as
dictating the meaning of the prohibition itself (and the crime
that results from its violation). There is no reason to think
that the legislature’s intent that “any person who has been
convicted of a felony” be required to follow the procedure at
ORS 166.274 to have their gun-possession rights restored
conviction of a felony could be overturned or set aside by a higher court, and that
such a court might even enter a judgment reducing the conviction to a misdemeanor.
But if the state’s interpretation of the wording is taken to its natural conclusion,
a subsequent appellate judgment would not be relevant in determining whether a
person “has been convicted of a felony” for purposes of ORS 166.270. The state sug-
gests that that would not be so because, if set aside, a felony conviction is treated
as void ab initio. But this court rejected a similar argument in Bailey v. Lampert,
342 Or 321, 153 P3d 95 (2007), when the defendant in that case sought to set aside
his felon-in-possession conviction on the ground that, subsequent to the felon-
in-possession conviction, the underlying felony conviction had been reversed.
The defendant argued that, because the underlying felony conviction was void
ab initio, he had never been a “person who ha[d] been convicted of a felony” within
the meaning of ORS 166.270. This court concluded that, in ORS 166.270, “the
legislature intended to, and did, focus on a person’s status at the time that he or
she possessed a firearm,” even if that status might later change because the prior
felony conviction is reversed or set aside. Id. at 327. Although Bailey does not
address the particular subsection of the statute that is at issue in the present case,
it demonstrates that, if the state were correct that the statute refers to only the
time of the original judgment, a person whose conviction was later overturned by
a court nevertheless would be a person who “has been convicted of a felony:” The
person could not claim that the original conviction was void ab initio.
12 State v. Stark
had any bearing on its thinking about who would qualify as
a “person who has been convicted of a felony.” The legislature
could have decided that a trial court’s reduction of a felony
conviction to a misdemeanor should remove that person
from the prohibition on firearm possession at ORS 166.270
altogether, and at the same time reasonably could have
provided a path for persons who remain felons for purposes
of the statute to restore their prior right to possess firearms.
Although, at this point, the textual and contextual
clues point to the interpretation of ORS 166.270(3)(a) for
which defendant contends, we still have not addressed the
legislative history that the state has brought to our attention.
Gaines, 346 Or 171-72. We turn to that legislative history
now.
As we briefly noted above, 354 Or at 8 n 3, ORS
166.270(3)(a) was enacted in its current form in 1989. Before
then, subsections (1) and (2) of ORS 166.270 were similar to
their current versions, but subsection (3) provided:
“For the purposes of this section, a person ‘has been
convicted of a felony’ if, at the time of conviction for an
offense, that offense was a felony under the law of the
jurisdiction in which it was committed. Provided, however,
that such conviction shall not be deemed a conviction of a
felony if:
“(a)  At the time of conviction, and pursuant to the law
of the jurisdiction in which the offense occurred, the offense
was made a misdemeanor by the type or manner of sentence
actually imposed.”
(Emphasis added.) The original 1989 bill to amend ORS
166.270, HB 3470, would simply have removed all the
italicized wording, abolishing the then-existing exception
for reductions from felony to misdemeanor status made “by
the type or manner of sentence actually imposed.” One of the
proponents of that change, Sheriff Burks of Lane County,
explained to the House Judicial Committee that the change
was proposed because members of the law enforcement com-
munity were
“concerned about the definition of a felon *  * [because]
*
there apparently are certain circumstances when people are
Cite as 354 Or 1 (2013) 13
convicted [as] felons but sentenced as * * * misdemeanant[s],
and we wanted to eliminate that possibility. If they’re
convicted of a felony, then they are a felon, that’s what we
wanted.”
Tape Recording, House Judiciary Committee, Natural
Resources Subcommittee, HB 3470, May 10, 1989, Tape 23,
Side A (statement of Sheriff Burks).
However, as the bill went through the Senate
Judiciary Committee, it was modified to provide a new and
different exception to the broader definition of a “person
[who] has been convicted of a felony”—the one that now
appears in paragraph (3)(a) and that is the subject of this
review:
“(3)  *  * Such conviction shall not be deemed a con-
*
viction of a felony if:
“(a)  The court declared the conviction to be a misde-
meanor at the time of judgment[.]”
When the modified wording was introduced to the Senate
Judiciary Committee, the committee’s legislative counsel,
Morris, explained at length that a felony conviction could
become a misdemeanor either through the type of sentence
imposed or by the trial court declaring the misdemeanor
to be a felony, and that, under the then-existing felon-in-
possession statute, if a felony conviction became a misde-
meanor under either method, then the felon-in-possession
statute did not apply. Tape Recording, Senate Judiciary
Committee, HB 3470, June 30, 1989, Tape 259, Side A
(statement of Counsel Morris). Morris went on to explain
how the original bill (which entirely removed the exception
he had described) and the amended bill would operate if
enacted:
“What the bill as it came to us did would abolish
things becoming misdemeanors by operation of law, and,
arguably—it’s unclear—abolish the *  * effect on the fire-
*
arms law when the judge declares it a misdemeanor.
“What we’ve done with the changes from yesterday
and today, we’ve made it so if a [conviction] becomes a
misdemeanor by operation of law, you’re still in trouble for
the gun laws. But we’ve made it clear, and you’ll see the
14 State v. Stark
new language on lines 15 and 26, that if the court feels
that special circumstances exist that justify declaring it a
misdemeanor, you’re in good shape for the gun law.”
Id. Finally, in response to a question about why the amended
bill drew that distinction, Morris stated:
“We felt that when a felony becomes a misdemeanor by
operation of law, that it does not justify getting the person
back in good shape for the gun law. But if a judge thinks that
circumstances are such that it should be a misdemeanor
from jump street, then you should be okay for gun laws.
So we basically took the middle ground with the changes
that we’ve made, as opposed to bringing everybody into the
[felon] in possession statute as the bill did.”
Id.
Defendant observes that a persistent theme runs
through all the discussions of the existing statute and the
proposed changes quoted above: The idea that a felony con-
viction may become a misdemeanor conviction either by
operation of law or by an act of judicial discretion. Defendant
contends that it is clear from the quoted history that, when
the legislature finally settled on the wording that became the
present statute, it intended to draw a line between the two
methods, excepting from the prohibition in the statute only
those persons whose felony convictions had been reduced to
misdemeanors through an act of judicial discretion.
The state argues, however, that one of Morris’s
last statements to the Senate Judiciary Committee—that
a defendant “should be ok for gun laws” if a judge “thinks
that circumstances are such that [a felony] should be a
misdemeanor from jump street”8 —shows that the exception
to the felon-in-possession law that the legislature intended
to enact was more narrow: It intended to except only persons
whose felony convictions were specifically declared by the
court to be misdemeanors at the outset. Thus, according to the
state, the phrase “the time of judgment” in ORS 166.270(3)(a)
must refer to the time of the judgment that was issued when
defendant first was convicted and sentenced.
8
According to Richard A. Spears, Dictionary of American Slang and Colloquial
Expressions (4th ed 2007), “jump street” means “the beginning; the start (of some-
thing) * * * : Way back at jump street, I spotted you as a troublemaker.”
Cite as 354 Or 1 (2013) 15
We agree with defendant, however, that the fleeting
“jump street” reference in Morris’s statement is inadequate
support for the state’s interpretation of the phrase in ORS
166.270(3)(a). First, there is some possibility that Morris was
simply attempting to provide an example of a circumstance
in which a judge’s decision to reduce a defendant’s conviction
to a misdemeanor could remove the defendant from the
reach of ORS 166.270. In that regard, we note that, although
Morris explained that, “if a judge thinks that circumstances
are such that it should be a misdemeanor from jump street,
then [a person] should be okay for gun law,” he did not state
that a similar determination made in other circumstances
should not be treated similarly. Furthermore, in the context
of Morris’s overall comments, the “jump street” reference is
an anomaly. Morris had explained the bill and its antece-
dents entirely in terms of the distinction between the two
ways in which a felony conviction might become a misde-
meanor conviction (by operation of law and by judicial declar-
ation), and had never suggested that an additional distinc-
tion—based on the timing of a judicial declaration reducing
a conviction to misdemeanor status—was relevant.9 It fol-
lows that Morris’s comments about the effect of the pro-
posed amendments to ORS 166.270(3), although useful for
determining what the legislature intended with respect to
Morris’s primary point (the distinction between reductions
to misdemeanor status occurring by operation of law and
by considered judicial declaration), do not reflect the legis-
lature’s thinking with respect to the timing of any judicial
declaration reducing a felony conviction to a misdemeanor
conviction.
9
It is true that, earlier in his comments, Morris had also stated that the
“judicial declaration” method of reducing a felony conviction to a misdemeanor
conviction occurred “at the time of sentencing.” However, the statutes in effect at
the time in fact clearly contemplated that a felony conviction could be reduced to a
misdemeanor by judicial declaration at the time of sentencing or at a later time. See
ORS 161.585(2)(e) (1987) (court could declare an offense to be a misdemeanor at
time court grants probation “or thereafter”); ORS 161.705(1)(d) (1987) (court may
enter judgment for misdemeanor when person convicted has successfully com-
pleted sentence of probation, if court believes felony conviction is unduly harsh).
We assume that the legislature had a correct understanding of the existing law,
and the legislative history does not establish that the legislature relied on Morris’s
misstatement.
16 State v. Stark
The state argues that Morris’s comments are signif-
icant for another reason: They show that the legislature con-
sidered the wording of the amended bill (which was enacted)
to be a “middle ground” between the then-existing exception
and the proposal in the original bill to entirely eliminate that
exception. The state contends that post-sentencing reduc-
tions from felony to misdemeanor status were not an option
under the then-existing statutory exception and that, in light
of that fact, “neither Morris—nor the legislature—would
have understood that option to be part of the compromise.”
There are at least two problems with the state’s argu-
ment. First, it assumes a point that is far from established—
that post-conviction reductions were not an option under the
law that existed prior to the 1989 amendments. Although
the state plausibly interprets the words of the pre-1989 ver-
sion of ORS 166.270(3) as excepting only reductions to mis-
demeanor status occurring at the time of an original judg-
ment (because the reduction had to occur “at the time of
conviction” through the “sentence actually imposed”), that is
not the only reasonable interpretation of that statute, at
least when the statute is read in the context of other statutes
that were in existence at the time.10
Second, although Morris spoke of the amended ver-
sion of HB 3470 as a “middle ground,” he never specifically
identified the pre-1989 version of ORS 166.270 as one of
the baselines for that assessment. It is conceivable that he
was referring to a “middle ground” between Sheriff Burks’
position that, “if they are convicted of a felony, then they are
a felon” and cannot possess a firearm, and the position that,
if a felony conviction is reduced to a misdemeanor—whether
by a judge or by operation of law—the person is no longer
deemed to be a felon and is permitted to possess a firearm.
10
As we already have noted, 354 Or at 8-10, two statutes then in existence
authorized post-sentencing reduction of a felony conviction to misdemeanor status.
In the absence of any clear decision to the contrary, it was at least arguable that, in
1989, ORS 166.270(3) (1987) spoke to only reductions that occurred by operation of
law as a result of the “sentence actually imposed” and did not pertain to or affect
a trial court’s separate authority to declare a reduction to misdemeanor status
under those statutes. Morris might have been speaking to that possibility when he
testified that, if the legislature adopted the amendment as originally proposed, it
would only “arguably—it’s unclear, abolish the * * * effect on the firearms law when
the judge declares it a misdemeanor.”
Cite as 354 Or 1 (2013) 17
The position that the legislature adopted—that only a person
whose felony conviction was reduced to a misdemeanor by
a judge may possess a firearm—clearly would fall into the
middle ground between those two positions.
In summary, Morris’s “jump street” and “middle
ground” comments do not convince us that the state’s inter-
pretation of ORS 166.270(3)(a) is the correct one. The only
conclusion that we legitimately can draw from Morris’s
testimony is that, in enacting the amended version of HB
3470, the legislature recognized that a felony conviction
could be reduced to a misdemeanor by operation of law or by a
considered judicial declaration, and the legislature intended
to except from the operation of the felon-in-possession statute
only convictions reduced by the latter method. Thus, the
legislative history that the parties have offered is consistent
with the conclusion that we have tentatively drawn from
the text and context of ORS 166.270(3)(a). The legislature
used the general term “judgment” and not a qualified term
such as “original judgment.” Particularly because the legis-
lature was aware that the law permitted courts to enter
subsequent judgments declaring a prior felony conviction to
be a misdemeanor, we would have expected the legislature
to explicitly exclude such judgments from the exception to
the felon-in-possession statute if that is what it intended.
For all those reasons, we conclude that the phrase “at the
time of judgment” in ORS 166.270(3)(a) refers to the time of
the judgment of conviction that was in effect at the time of
the alleged firearm possession.
Having settled that interpretive issue, we must
determine whether defendant was a person who “has been
convicted of a felony” at the time that he possessed the
firearm in question. Because ORS 166.270(3)(a) provides
that a conviction shall not be deemed a felony conviction if,
“at the time of judgment,” the court declared the conviction
to be a misdemeanor, it is clear that the court’s declaration
must be incorporated into or concurrent with a judgment
to fall within the scope of the exception. And, because ORS
166.270 is concerned with a person’s status as a felon at the
time that he or she possessed the firearm, it requires that
18 State v. Stark
the judgment incorporating or concurrent with the declar-
ation be in effect when the person possesses the firearm.
See Bailey v. Lampert, 342 Or 321, 327, 153 P3d 95 (2007)
(judgment setting aside a felony conviction issued after time
of possession of firearm did not negate defendant’s status as
a felon at the time he possessed the firearm).
When police found a gun in defendant’s car in 2008,
the only judgment in the record in the 2004 Marion County
case was the original judgment, finding defendant guilty of
felony possession of a controlled substance and sentencing
defendant to a term of probation. The record also contained
an order, issued on March 29, 2006, that granted defendant’s
motion for an order reducing his felony conviction to a misde-
meanor. However, at the time that the order was entered, it
was not incorporated in or concurrent with a judgment.11 It
was not until after the gun was discovered and defendant
was charged under ORS 166.270 that the Marion County
Circuit Court issued, on defendant’s motion, a judgment
reducing the felony conviction to a misdemeanor. The judg-
ment specified that the reduction was nunc pro tunc to the
date of the March 29, 2006, order.
Without the nunc pro tunc provision, the latter judg-
ment clearly could not advance defendant’s effort to place
himself within the exception at ORS 166.270(3)(a): ORS
166.270 is concerned with a person’s status as a felon at the
time he or she possesses a firearm, even if that status might
change at some later point. Bailey, 342 Or at 327-28. Defen-
dant argues, however, that the nunc pro tunc wording
made all the difference: It meant that a judgment declaring
defendant’s 2004 felony conviction to be a misdemeanor was
in effect in 2008 before he possessed a firearm.
11
Defendant may have thought that the order was sufficient to nullify his felony
conviction for purposes of the felon-in-possession statute. But the fact remains
that the exception set out in ORS 166.270(3)(a) requires that the declaration
reducing a felony conviction to a misdemeanor be made “at the time of judgment.”
Although it may seem unfair, defendant’s belief that he was a misdemeanant, not
a felon, is irrelevant under ORS 166.270: As this court recently stated in State
v. Rainoldi, 351 Or 486, 506, 268 P3d 568 (2011), that statute “exhibits a clear
legislative intent to dispense with the culpable mental state requirement as to the
element that a defendant ‘has been convicted of a felony.’ ”
Cite as 354 Or 1 (2013) 19
In that regard, defendant observes that, in its
original judgment, the Multnomah County Circuit Court
expressly invited defendant to apply for misdemeanant
status upon completion of probation and followed through on
its offer to reduce the conviction to a misdemeanor in its
March 29, 2006, “order.” Defendant argues that, given that
sequence of events, the court’s “order” in fact was a “judg-
ment”—the court’s final decision on defendant’s status as
a felon. Defendant also suggests that ORS 161.70512 requires
trial courts to issue any decision reducing a felony conviction
to a misdemeanor conviction as a superseding judgment.
From that standpoint, defendant argues that, regardless of
the facts that he, himself, moved for “an order reducing the
charge in the present case from a felony to a misdemeanor”
and that the trial court captioned its decision on that
motion as an “order,” the decision in fact was a “judgment,”
and the caption that appeared on the document memo-
rializing that judgment was a mistake. Finally, defendant
contends that the circuit court’s 2009 entry of a properly
captioned judgment reducing defendant’s conviction from a
felony to a misdemeanor “nunc pro tunc March 29, 2006,” was
a proper exercise of the court’s inherent power to “correct
clerical errors at a later time so that the record reflects what
actually occurred at an earlier time.” State ex rel Juv. Dept.
v. Dreyer, 328 Or 332, 339, 976 P2d 1123 (1999). In other
words, defendant argues, the 2009 nunc pro tunc judgment
establishes that the March 29, 2006, “order” in fact was a
judgment declaring defendant’s felony conviction to be a
misdemeanor.
We have stated that
“[t]he function of a nunc pro tunc entry is to make a record
of what was previously done, but not then entered; not to
make an order now for then, but to enter now for then an
order previously made. * * * Such an order is effective only
when it records a previously omitted truth—it does not
create, but only speaks what has been done.”
12
Defendant adverts to the current version of ORS 161.705, which in all rele-
vant respects is identical to the 1987 version of that statute, set out above, 354 Or
at 9 n 5.
20 State v. Stark
Gillespie v. Kononen, 310 Or 272, 276 n 7, 797 P2d 361 (1990).
Although defendant pays lip service to that rule by describ-
ing the 2009 nunc pro tunc judgment as correcting a mere
labeling error, neither the facts, nor defendant’s explanation,
supports that description.
Certainly, there is no basis for arguing that the
2006 order comported with the formal requirements of a
judgment in a criminal action. ORS 137.071(2) requires a
judgment document in a criminal action to comply with
ORS 18.038 and to provide additional specific information
about various aspects of the proceedings and the court’s
decisions, including a clear specification of the court’s dis-
position for each charge. To comply with ORS 18.038, the
judgment document must “be plainly titled as a judgment.”
ORS 18.038(1). The 2006 order is not so titled. It is titled
an “order” and is expressed entirely in terms of granting a
motion: “It is hereby ordered that Defendant[’s] motion to
reduce [his] felony conviction to a misdemeanor is granted.”
The order also contains none of the additional information
required of judgment documents by ORS 137.071(2).
Defendant suggests that such formalities are irrele-
vant—that the proper focus is on the trial court’s decision
and not the document that memorializes it. He contends
that the trial court’s decision on March 29, 2006, was, in
every respect, a judgment that finally disposed of his 2004
conviction, and that the 2009 “nunc pro tunc” judgment
merely recognizes that “truth” by correcting the original,
erroneous documentation of that decision. But defendant
does not point to any evidence in the record showing that
the court’s decision (as opposed to the documentation of
the decision) in fact was a judgment.13 Defendant does not
assert, for instance, that he had sought a “judgment” in
2006 or that, due to a clerical error, the word “order” was
mistakenly used even though the trial court indicated that
13
We understand the distinction that defendant is attempting to make, but
we are not persuaded that it can have any real world significance in this context.
By definition, a court’s “judgment” is reflected in a “judgment document.” See ORS
18.005(8) (“ judgment’ means the concluding decision of a court on one or more
‘
requests for relief in one or more actions, as reflected in a judgment document”);
ORS 137.071(2) (requiring that judgment document in criminal action comply with
ORS 18.038). Those statutes would seem to make it difficult, if not impossible, to
show that a decision that is not memorialized in a judgment in fact is a judgment.
Cite as 354 Or 1 (2013) 21
a “judgment” should be entered. Instead, defendant asserts
that the decision should have been issued as a judgment,
because (1) ORS 161.705 provides that, to reduce a conviction
to a misdemeanor under paragraph (1)(d) after a defendant
successfully completes probation, the court is “required” to
enter a superseding judgment; and (2) the decision was the
court’s final determination resolving the issue of the proper
classification of defendant’s conviction. But even if those
assertions were based on correct statements of the law,14 they
would not assist defendant. That is so because they speak to
what defendant should have requested and what the court
should have done, rather than what defendant did in fact
request and what the court did in fact do. They do not estab-
lish that the 2009 judgment “record[ed] a previously omit-
ted truth,” as a nunc pro tunc entry must. Gillespie, 310 Or
at 276 n 7.
We conclude that the nunc pro tunc wording in the
circuit court’s 2009 judgment did not, and could not, trans-
form its prior 2006 order into a judgment. It follows that,
when police found a gun in defendant’s possession in 2008,
the only judgment in effect was the original judgment con-
victing defendant of a felony. The trial court did not err
in denying defendant’s motion for a judgment of acquittal,
which was based on the theory that defendant was not a
felon within the meaning of ORS 166.270(3) at the relevant
time.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
14
As we understand them, defendant’s assertions are not based on correct
statements of the law. Insofar as ORS 161.705 provides that a court “may enter
judgment of conviction for a Class A misdemeanor” in the described circumstances,
it clearly does not “require” entry of a judgment. And, whether or not the trial
court’s decision had the effect of finally disposing of an issue in the criminal action
against defendant depends, at least in part, on whether it in fact was a judgment.