State v. Lane

No. 31 August 6, 2015 619
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
DAVID FRANK LANE,
Respondent on Review.
(CC 07C49819; CA A148507; SC S062045)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 18, 2014.
Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for petitioner
on review. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna Joyce, Solicitor General.
Daniel C. Bennett, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
LANDAU, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
*  Appeal from Marion County Circuit Court, Joseph V. Ochoa, Judge. 260 Or
App 549, 318 P3d 750 (2014).
620 State v. Lane
Case Summary: Defendant, who had pleaded no contest to four counts of first
degree encouraging child sex abuse, ORS 163.684, was sentenced to a 60 month
term of probation on each count, rather than to the presumptive sentence of 16
to 18 months in prison. When defendant later admitted to a single probation
violation, the trial court revoked his probation and imposed prison terms on each
count, some of which prison terms—based on the fact that each count involved a
different victim—were to be served consecutively. Although defendant objected
that the sentencing guidelines required that terms of incarceration imposed as a
result of a single probation violation be served concurrently, the trial court con-
cluded that, notwithstanding the guidelines, consecutive sentences were autho-
rized under Article I, section 44(1)(b), which provides that “[n]o law shall limit
a court’s authority to sentence a criminal defendant consecutively for crimes
against different victims.” On defendant’s appeal, the Court of Appeals reversed,
holding that Article I, section 44(1)(b), applies by its terms to the court’s author-
ity “to sentence,” and therefore does not apply to terms of incarceration imposed
as sanctions for probation violations. The state sought review, arguing that impo-
sition of probation sanctions is “sentenc[ing]” within the meaning of the consti-
tutional provision. Held: Article I, section 44(1)(b), which forecloses any law from
limiting a court’s authority to impose consecutive sentences for crimes against
multiple victims, applies to the imposition of sanctions for probation violations;
consequently, in spite of a guidelines rule to the contrary, a trial court has author-
ity to impose consecutive prison terms for crimes against multiple victims as a
penalty for a single probation violation.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 357 Or 619 (2015) 621
LANDAU, J.
Oregon’s sentencing guidelines provide that, if a
defendant with multiple terms of probation commits a sin-
gle probation violation, any resulting terms of incarcera-
tion must be imposed concurrently, not consecutively. OAR
213-012-0040(2)(a). At issue in this case is whether that
guidelines provision runs afoul of Article I, section 44(1)(b),
of the Oregon Constitution, adopted by the voters in 1999
upon referral by the legislature. That section provides that
“[n]o law shall limit a court’s authority to sentence a crimi-
nal defendant consecutively for crimes against different vic-
tims.” Id. The trial court held that the guidelines provision
conflicts with the constitution and imposed consecutive sen-
tences on defendant. The Court of Appeals reversed, conclud-
ing that, because the imposition of terms of incarceration as
a sanction for probation violation is not “sentenc[ing] * * *
for crimes” within the meaning of Article I, section 44(1)(b),
there is no conflict, so the guidelines provision validly
prohibited the imposition of consecutive sentences. State
v. Lane, 260 Or App 549, 557-58, 318 P3d 750 (2014). We
conclude that the trial court correctly determined that the
guidelines provision conflicts with Article I, section 44(1)(b).
Imposing terms of incarceration as a sanction upon proba-
tion revocation amounts to “sentenc[ing] * * * for crimes”
within the meaning of the constitution. Article I, section
44(1)(b), therefore controls, and the conflicting provision of
the guidelines is invalid. We therefore affirm the trial court
and reverse the Court of Appeals.
The relevant facts are few and undisputed.
Defendant was indicted in 2007 for four counts of encour-
aging child sex abuse in the first degree, ORS 163.684, each
count involving a different victim. In 2008, he pleaded no
contest to those counts and stipulated that there had been
multiple victims. Each count was classified as 8-I on the
sentencing gridblock, with a presumptive prison sentence of
16 to 18 months. The trial court, however, sentenced defen-
dant to a dispositional departure sentence of 60 months
probation on each count. The judgments of conviction and
sentences did not specify that they were consecutive; accord-
ingly, they were concurrent. See ORS 137.123(1) (“A sentence
shall be deemed to be a concurrent term unless the judgment
622 State v. Lane
expressly provides for consecutive sentences.”). Among the
conditions of probation was that defendant refrain from
drinking alcohol.
In 2010, defendant was charged with violating that
condition of probation. He admitted that he had done so by
drinking alcohol. The parties agree that that was a single
probation violation.
The state argued that, in consequence of the proba-
tion violation, the trial court should revoke probation and
impose consecutive sentences of incarceration on each of
the four counts, in light of the fact that the original charges
involved four different victims. Defendant objected, arguing
that, under the applicable provision of the sentencing guide-
lines, any terms of incarceration imposed as a result of a
single probation violation must be served concurrently. The
state did not contest that the guidelines so provide. Instead,
the state argued that, notwithstanding the guidelines, the
court had authority to impose consecutive sentences under
Article I, section 44(1)(b). The trial court agreed with the
state, concluding that, under Article I, section 44(1)(b), it
was “allowed to give consecutive sentences in this case, based
upon the fact that there were four separate victims.” The
court imposed consecutive sentences totaling 36 months.
Specifically, it imposed 18-month concurrent sentences
on counts 1 and 2, and 18-month concurrent sentences on
counts 3 and 4, but it made the sentences on counts 3 and 4
consecutive to the sentences on counts 1 and 2.
Defendant appealed, contesting the state’s argu-
ment that Article I, section 44(1)(b), trumped the sentencing
guidelines. In defendant’s view, the constitutional provision
applies only to a court’s authority to “sentence,” while the
sentencing guidelines provision at issue concerned the trial
court’s imposition of “sanctions” for a probation violation.
The two, defendant argued, are not the same thing.
The Court of Appeals agreed with defendant. The
court reasoned that Article I, section 44(1)(b), applies only
to a court’s authority “to sentence * * * for crimes.” 260 Or
App at 554. Sanctions for probation violations, the court
explained, are not punishments for crimes; rather, they are
punishments for violating probation conditions. Accordingly,
Cite as 357 Or 619 (2015) 623
the court concluded, the constitutional provision concerning
the authority of courts “to sentence * * * for crimes” does not
apply to terms of incarceration imposed for probation viola-
tions. Id. at 557-58. The state sought review from this court.
The issue before us on review is a narrow one.
The parties agree that, but for the possible application of
Article I, section 44(1)(b), the sentencing guidelines require
concurrent sentences for any terms of incarceration that the
court imposes as a sanction for his single probation viola-
tion. The sole question is whether Article I, section 44(1)(b),
applies.
Because the dispositive question is whether that
constitutional provision applies to the imposition of sanctions
for probation violations, we begin with a brief description of
the law pertaining to the imposition of such sanctions before
turning to the interpretation of Article I, section 44(1)(b).
Historically, probation amounted to the conditional release
of a defendant after conviction but before any sentence for
that crime commenced. State v. Ludwig, 218 Or 483, 486-87,
344 P2d 764 (1959). That was accomplished in either of
two ways: First, the court could suspend the imposition of
the sentence itself, so that sentencing did not occur unless
the defendant violated the terms of probation. Second, the
court could impose sentence, but suspend the execution of
the sentence. See State v. Stevens, 253 Or 563, 565, 456 P2d
494 (1969) (noting ways in which trial court could impose
probation); see also generally Arthur W. Campbell, Law of
Sentencing § 5:1, 149 (3d ed 2004).
Practical consequences flowed from electing one
method of probation over another. If the court opted to sus-
pend the imposition of sentence, then it retained the author-
ity to impose any sentence that the law allowed in the case
of a probation violation. But, if the court opted to suspend
the execution of the sentence, the court was limited to exe-
cuting the sentence already imposed in the event of a proba-
tion violation.
In 1989, the legislature overhauled the state’s sen-
tencing laws for felonies committed on or after November 1,
1989, by authorizing the Oregon Criminal Justice Com-
mission to adopt and implement sentencing guidelines.
624 State v. Lane
See generally State v. Nix, 356 Or 768, 775, 345 P3d 768
(2015) (summarizing guidelines). Those guidelines are
administrative rules, of which the legislature has expressed
approval, although without formally adopting them as stat-
utes. State v. Langdon, 330 Or 72, 74, 999 P2d 1127 (2000).
The guidelines create a system of presumptive sentences
based on the seriousness of the felony at issue and the defen-
dant’s criminal history. They include authority to “impose
an optional probationary sentence,” provided the sentencing
court makes required findings. OAR 213-005-0006(1). They
also include presumptive probationary sentences for certain
specified circumstances. OAR 213-005-0008.
Under the sentencing guidelines, there is no men-
tion of the historic distinction between suspending the impo-
sition of a sentence, as opposed to suspending the execution
of a sentence. The guidelines refer to probation itself as a
“sentence.” OAR 213-005-0006(1) (“the sentencing judge
may impose an optional probationary sentence”). The guide-
lines also establish sanctions for probation revocation. The
guidelines explicitly refer to those sanctions as “sentence[s]
upon revocation.” E.g., OAR 213-010-0002(1) (“For those
offenders whose presumptive sentence was probation, the
sentence upon revocation shall be to the supervisory author-
ity for a term up to a maximum of six months.”). Those sen-
tences upon revocation may include terms of incarceration.
Id.The guidelines limit the sentences that may be
imposed upon revocation. Among them is the provision at
issue in this case, which states that, “[i]f more than one term
of probationary supervision is revoked for a single supervi-
sion violation, the sentencing judge shall impose the incar-
ceration sanctions concurrently.” OAR 213-012-0040(2)(a).
With that background in mind, we turn to the ques-
tion whether Article I, section 44(1)(b), applies to OAR 213-
012-0040(2)(a). That question is one of constitutional inter-
pretation. In construing the constitution, we examine the
text of the disputed provision in its historical context, along
with relevant cases interpreting it. Couey v. Atkins, 357 Or
460, 490, ___ P3d ___ (2015). In the case of provisions of
the original 1857 constitution, we attempt to ascertain the
Cite as 357 Or 619 (2015) 625
meaning understood by the framers at that time. Stranahan
v. Fred Meyer, Inc., 331 Or 38, 54-55, 11 P3d 228 (2000). In
the case of provisions adopted later by initiative or refer-
ral, the focus is on the meaning understood by the voters
who adopted them. Id. at 56-57; Ecumenical Ministries v.
Oregon State Lottery Comm., 318 Or 551, 559-60, 871 P2d
106 (1994). In either case, our purpose is not to freeze the
meaning of the constitutional provision to the time of its
adoption, but is instead “to identify, in light of the meaning
understood by the framers [or voters], relevant underlying
principles that may inform our application of the constitu-
tional text to modern circumstances.” State v. Davis, 350 Or
440, 446, 256 P3d 1075 (2011).
We begin with the text of Article I, section 44, which
provides that
“(1)(a)  A term of imprisonment imposed by a judge
in open court may not be set aside or otherwise not car-
ried out, except as authorized by the sentencing court or
through the subsequent exercise of:
“(A)  The power of the Governor to grant reprieves,
commutations and pardons; or
“(B)  Judicial authority to grant appellate or post-
conviction relief.
“(b)  No law shall limit a court’s authority to sentence a
criminal defendant consecutively for crimes against differ-
ent victims.”
The particular words at issue in this case are “to sentence
* * * for crimes,” as used in paragraph (1)(b). Defendant
argues that to impose a sanction for a probation violation
is not “to sentence * * * for crimes.” In his view, the sanction
for a probation violation is just that—a consequence of the
violation of conditions of probation, not a punishment for the
underlying criminal offense. The state, on the other hand,
argues that to impose a sanction for a probation violation
can involve imposing a term of incarceration based on the
underlying criminal offense and is, thus, sentencing for that
criminal offense.
The constitution does not define the word “sentence.”
The ordinary meaning of the term, however, suggests that it
626 State v. Lane
broadly applies to the imposition or punishment for a crime
or some other offense. See Wright v. Turner, 354 Or 815, 827,
322 P3d 483 (2014) (undefined terms are assumed to have
ordinary meanings). Webster’s, for example, defines the verb
“sentence” as follows:
“2 a : to pronounce sentence on : to condemn to penalty or
punishment b : to prescribe a penalty or punishment of
: doom—usu. used with to ”
Webster’s Third New Int’l Dictionary 2068 (unabridged ed
2002). The definitions themselves generally refer to con-
demning to or prescribing a penalty or punishment, which
seems to readily include the imposition of the sort of proba-
tion revocation sanctions at issue in this case. To be sure, the
verbal illustrations (the material enclosed in angle brackets)
refer more particularly to a sentence imposed “at the conclu-
sion of the trial.” But the fact that a particular illustration is
more limited does not necessarily mean that the definition is
likewise. See id. at 17a, 13 (Verbal Illustration) (explaining
function of verbal illustration portion of definitions); see also
The American Heritage Dictionary of the English Language
1597 (5th ed 2011) (defining verb form as “[t]o impose a
sentence on” and the noun as “[t]he penalty imposed by a
law court or other authority upon someone found guilty of a
crime or other offense”); XIV The Oxford English Dictionary
992 (2d ed 1989) (“to pronounce sentence upon; to condemn
to a punishment”).1
The immediate context of the disputed phrase
seems likewise to support its broader interpretation.
Paragraph (1)(a) of Article I, section 44, begins with “[a]
term of imprisonment imposed by a judge in open court”
and later refers to the court that does so as “the sentencing
court.” Article I, section 44(1), thus appears to equate “sen-
tencing” with “[a] term of imprisonment imposed by a judge
1
Legal dictionaries similarly define the word broadly. Black’s defines the
word “sentencing” as “[t]he judicial determination of the penalty for a crime.”
Black’s Law Dictionary 1486 (9th ed 2009); see also Ballentine’s Law Dictionary
1160 (3d ed 1969) (“formally declaring to the accused the legal consequences of
the guilt which he has confessed or of which he has been convicted”); West’s Legal
Thesaurus/Dictionary 687 (1985) (“[t]o impose a punishment”).
Cite as 357 Or 619 (2015) 627
in open court.” Again, that seems broad enough to include a
term of imprisonment imposed as a sanction for a probation
violation.
At the same time, Article I, section 44(1)(b), does
refer to sentencing “for crimes.” As we have noted, defendant
argues that, even if a revocation is in some sense a “sen-
tence,” it is not a sentence “for crimes.” The state responds
that defendant misapprehends the nature of the sanction,
which is based on the underlying criminal offense. We agree
with the state.
The imposition of sanctions certainly may, in some
sense, act as a punishment for the probation violation.
See, e.g., ORS 137.592 (expressing policy of “responding to
[probation] violations with swift, certain and fair punish-
ments”). The actual term of incarceration, however, depends
not on the nature of the probation violation, but entirely
on the seriousness of the underlying criminal offense and
the offender’s criminal history. Defendant in this case, for
example, was not sentenced to several years of incarceration
for drinking a beer. Instead, the length of the term of incar-
ceration was dictated by the nature of the earlier felonies to
which he had pleaded no contest.
Any other interpretation leads to difficulties. If, for
example, two offenders were sentenced to probation for dif-
ferent underlying offenses, and both violated the terms of
that probation by drinking alcohol and had their probation
revoked, they could be subject to wildly disparate sanctions
depending on the nature of the underlying offenses. If the
sanctions were solely a punishment for the same parole
violation—irrespective of the underlying criminal offenses—
they certainly would be open to constitutional challenge
based on the disparate consequences imposed for the iden-
tical conduct.
Casting a wider net, we also consider the histori-
cal context, which includes related statutes and regula-
tions that existed at the time Article I, section 44(1)(b),
was adopted. State v. Sagdal, 356 Or 639, 642, 343 P3d 226
(2015) (historical context for purposes of interpreting con-
stitutional provision includes preexisting legal framework).
In that regard, defendant argues that the broader context
628 State v. Lane
reveals an “unambiguous” distinction between imposing a
sentence for a crime and imposing a sanction upon probation
revocation. Based on that distinction, he argues, the voters
who adopted Article I, section 44(1)(b), would have under-
stood that to “sentence” did not include imposing probation
revocation sanction. We do not find such a clear distinction
in the relevant statutes and regulations, however.
There is no question but that a number of stat-
utes describe the penalties for a probation violation as a
“sanction.” ORS 137.593(1), for example, provides that, for
persons who violate the conditions of their probation, the
relevant corrections agency “shall impose structured, inter-
mediate sanctions,” though the agency does not have the
power to revoke probation. The statutes additionally direct
the Department of Corrections to “establish[ ] a system of
structured, intermediate probation violation sanctions” for
that purpose. ORS 137.595(1). Meanwhile, the sentencing
court retains authority to revoke probation, and “to impose
sanctions for the [probation] violations,” if the court stated
on the record that it retained that authority at the time of
sentencing. ORS 137.593(2)(a), (b). And ORS 137.545(5)(b)
provides that, “[f]or defendants sentenced for felonies com-
mitted on or after November 1, 1989, the court that imposed
the probationary sentence may revoke probation supervision
and impose a sanction as provided by rules of the Oregon
Criminal Justice Commission.”
Certain provisions of the sentencing guidelines also
use similar phrasing. The one at issue in this case, for exam-
ple, repeatedly uses the term “sanction” to refer to the conse-
quences of probation violation:
“(2)  When an offender is serving multiple terms of pro-
bationary supervision, the sentencing judge may impose
revocation sanctions for supervision violations as provided
by OAR 213-010-0002 for the violation of each separate
term of probationary supervision.
“(a)  If more than one term of probationary supervision
is revoked for a single supervision violation, the sentencing
judge shall impose the incarceration sanctions concurrently.
“(b)  If more than one term of probationary supervi-
sion is revoked for separate supervision violations, the
Cite as 357 Or 619 (2015) 629
sentencing judge may impose the incarceration sanctions
concurrently or consecutively.”
OAR 213-012-0040(2) (emphases added).
But the mere fact that the legislature or the Oregon
Criminal Justice Commission has used two different terms
does not, by itself, require the terms to have different
meanings. Although the use of different terms usually is
taken to connote different meanings to avoid redundancy,
see, e.g., State v. Connally, 339 Or 583, 591, 125 P3d 1254
(2005) (so stating), it is not a hard-and-fast rule. As this
court explained in State v. Cloutier, 351 Or 68, 97-98, 261
P3d 1234 (2011), redundancy “is a fact of life and of law.
* * * In some cases, it may be what the legislature intended.”
See also Thomas Creek Lumber and Log Co. v. Dept. of Rev.,
344 Or 131, 138, 178 P3d 217 (2008) (“[N]othing prohibits
the legislature from saying the same thing twice.”). Such
“rules” of interpretation are mere assumptions that always
give way to more direct evidence of legislative intent.
In this case, that some statutes or administrative
rules use the different terms is counterbalanced by the fact
that other statutes and regulations use the terms to sug-
gest the very same thing. That is to say, other statutes and
rules—contrary to defendant’s categorical assertion that
imposing a sanction is not sentencing—refer to the imposi-
tion of a sanction for probation violations as “sentencing.”
ORS 137.712(5), for instance, which creates certain
exceptions to mandatory minimum sentences, describes the
penalty on revocation of probation as a “sentence”:
“Notwithstanding ORS 137.545(5)(b), if a person sen-
tenced to probation under this section violates a condition
of probation by committing a new crime, the court shall
revoke the probation and impose the presumptive sentence
of imprisonment under the rules of the Oregon Criminal
Justice Commission.”
(Emphasis added.) Similarly, ORS 161.585 provides that
certain crimes will be treated as felonies unless and until
certain events occur, in which case those crimes will there-
after be treated as misdemeanors. One of the triggering
events is that the court imposes a “sentence” after revoking
630 State v. Lane
probation: “Upon revocation of probation, the court imposes
a sentence of imprisonment other than to the legal and
physical custody of the Department of Corrections.” ORS
161.585(2)(c). And ORS 137.010(7) provides that, “when a
suspended sentence or sentence of probation is revoked, the
court shall impose the following sentence,” including a term
of imprisonment.
The statute authorizing appeals of probation revoca-
tion similarly assumes that any resulting sanctions are “sen-
tences.” ORS 138.222(7) provides that “[e]ither the state or
the defendant may appeal a judgment of conviction based on
the sentence for a felony committed on or after November 1,
1989.” But it adds the qualification that the defendant is
permitted to appeal only upon “showing a colorable claim of
error” in a proceeding in which, among other things, “[p]ro-
bation was revoked.” ORS 138.222(7)(b). That, in fact, is
the very statute that defendant in this case has invoked
as the basis for this appeal. But the statute applies only to
appeals of a judgment of conviction based on a “sentence.” If
the imposition of probation sanctions were not “sentencing,”
then defendant would lack a statutory basis for pursuing
this very appeal.
Defendant concedes that there is some “tension” in
the statute in that regard. He suggests that we should read
ORS 138.222(7)(b) to authorize appeals of probation revoca-
tion sanctions, regardless of whether they may be regarded
as “sentences.” That, however, is not what the statute says.
As we have noted, the statute begins with the authorization
to appeal a “judgment of conviction based on the sentence.”
The statute then adds a qualification that applies to defen-
dants, namely, that they may pursue such appeals of judg-
ments of conviction based on the sentence only if they can
show a colorable claim of error in the probation revocation
proceeding. By its terms, the statute does not independently
authorize an appeal of probation revocation decisions.
In the sentencing guidelines, there also are refer-
ences to probation revocation sanctions as “sentences.” As
we have noted, for example, OAR 213-010-0002 repeatedly
refers to a probation revocation sanction as a “sentence upon
revocation” of probation:
Cite as 357 Or 619 (2015) 631
“(1)  For those offenders whose presumptive sentence
was probation, the sentence upon revocation shall be to the
supervisory authority for a term up to a maximum of six
months.
“(2)  For those offenders whose probationary sentence
was either a departure from a presumptive prison sentence
or a sentence imposed pursuant to OAR 213-005-0006, the
sentence upon revocation shall be a prison term up to the
maximum presumptive prison term which could have been
imposed initially, if the presumptive prison term exceeds
12 months. For those presumptive prison terms 12 months
or less, the sentence upon revocation shall be to the super-
visory authority, up to the maximum presumptive prison
term.
“* * * * *
“(4)  When imposing a revocation sanction, the sen-
tencing judge shall also set a term of post-prison supervi-
sion in accordance with OAR 213-005-0002.
“(5)  No revocation sanction may exceed the limitations
established by this rule.”
(Emphases added.)
The foregoing counterexamples defeat defendant’s
contention that the voters who adopted Article I, section 44(1)(b),
would have understood a well-established and “unambig-
uous” distinction between imposing probation revocation
sanctions and sentencing. To the contrary, they show that
relevant statutes and administrative rules repeatedly refer
to probation revocation sanctions as “sentences.”
The relevant history of the adoption of Article I, sec-
tion 44(1)(b), is scant. But it confirms what our analysis of the
text suggests. See Sagdal, 356 Or at 642 (cautioning against
ending analysis without considering history); Ecumenical
Ministries, 318 Or at 559 n 7 (same). As we have noted, what
is now Article I, section 44(1)(b), was adopted by the voters
upon referral from the legislature. The history of a measure
adopted by the people consists of those contemporary sources
that indicate how the voters understood the measure, par-
ticularly the ballot title and associated information in the
632 State v. Lane
voters’ pamphlet. See Sagdal, 356 Or at 642-43 (discussing
historical sources); Ecumenical Ministries, 318 Or at 560 n 8
(same).
Both defendant and the state agree that nothing
in the ballot title, the explanatory statement, or any of the
arguments for or against the amendment directly addresses
whether the voters understood the words “to sentence” to
refer to the court’s imposition of penalties on revoking pro-
bation. Defendant, however, contends that the absence of
any such discussion confirms his point; that is, he argues
that, in light of the well-established distinction between
probation revocation “sanctions” and “sentences,” any inten-
tion to alter that distinction would have been evident in the
enactment history. But defendant’s argument in that regard
assumes the very matter in contention, namely, whether
there existed any such well-established distinction. As we
have discussed, the relevant statutes and administrative
rules do not support such a categorical distinction.
For its part, the state relies on a comment made in
the legislature during the process that led to the amendment
being submitted to the voters, specifically an explanation of
the measure by Representative Mannix before the Senate
Judiciary Committee. When Representative Mannix was
asked for an example of a current law that restricts a judge’s
ability to impose consecutive sentences, he responded:
“[M]y recollection under sentencing guidelines is there
are restrictions on consecutive sentences under a number
of circumstances and I—those who are dealing with them
on a daily basis would probably come up with specific case
examples. But my understanding is the sentencing guide-
lines contain an inherent bias against consecutive sen-
tences and the judge has to * * * jump over some obstacles.
This says [no]—you can’t limit the judge’s authority to sen-
tence, for different victims, consecutive sentences, and so if
the sentencing guidelines contain any such provisons they
would be rendered ineffective.”
Audio Recording, Senate Committee on Judiciary, HJR 94,
June 8, 1999, at 1:32:17 (statement of Rep Mannix), http://
www.leg.state.or.us/listn/archive/archive.1999s/SJUD-
199906081500.ram (accessed July 24, 2015). According to
the state, the only “restriction[ ] on consecutive sentences”
Cite as 357 Or 619 (2015) 633
that existed at the time that Representative Mannix offered
that explanation, was the one at issue in this case, OAR 213-
012-0040(2)(a). Thus, the state concludes, it is clear that, in
referring what became Article I, section 44(1)(b), to the peo-
ple, the legislature intended to override the very restriction
on consecutive sentences that is at issue in this case.
Defendant’s response to the state’s reliance on the
statement of Representative Mannix is three-fold. First,
he contends that, under this court’s decision in Shilo Inn
v. Multnomah County, 333 Or 101, 36 P3d 954 (2001), mod-
ified on recons on other grounds, 334 Or 11, 45 P3d 107
(2002), such statements are not properly considered part
of a measure’s enactment history. Second, he argues that,
even assuming the relevance of such history generally,
Representative Mannix’s statement—referring to multiple
limitations that reflect a “bias” against consecutive sentenc-
ing in the guidelines—suggests that he was referring not
just to the sole such limitation that existed at that time, but
to other limitations that Mannix apparently was unaware
had been eliminated; in other words, Mannix was mistaken.
Moreover, defendant argues, the reason Mannix was mis-
taken confirms the existence of a clear distinction between
sentencing for crimes and imposing sanctions upon proba-
tion revocation. Finally, defendant contends that, even if
that was not the case, the fact that the only then-existing
limitation on consecutive sentencing was the one at issue
in this case is irrelevant. In defendant’s view, what became
Article I, section 44(1)(b), was intended to restrict only the
legislature’s future enactment of such limitations and was
not intended to affect those that already existed.
We begin with Shilo Inn. In that case, this court
considered the proper interpretation of a constitutional
amendment that the legislature had referred to voters. On
review, amici curiae argued for a particular interpretation
of that amendment, based in part on statements that vari-
ous legislators had made during the process of referring the
measure to the voters. The court declined to considered such
comments, explaining that “the history that we consider
does not include early drafts of the legislative bill that later
was referred to the people, nor does it include statements
made by legislators in hearings on that matter.” Id. at 129.
634 State v. Lane
The court noted that such evidence might be material to the
legislature’s intentions in referring the matter, but not to
the voters’ intentions in adopting it. Id. at 129-30.
Shilo Inn adopted an artificially blinkered view of
the process by which measures are adopted. Voters do not
approve a referred measure in a vacuum. As required by
Article XVII of the state constitution, amendments such as
Article I, section 44(1)(b), are drafted by the legislature,
acting in its capacity as the collective representative of the
people. Those proposed amendments are then subject to the
hearings and deliberations that are part of that process and,
if approved by the legislature, referred by the Secretary of
State to the voters. That legislative deliberation is a part of
the constitutionally mandated adoption process. It is con-
ducted in public, and its records are available to the public.
Although the measure that the legislature refers becomes
effective only if ultimately approved by the voters, the voters
have the opportunity to give their approval only after the
legislature drafts a measure and, after deliberation, deems
it worthy of submission to them. Under the circumstances,
the legislature’s deliberations seem no less worthy of con-
sideration than the deliberations of a legislative committee
in referring a bill to the floor of the House or the Senate.
Certainly, they are at least as germane to the intended
meaning of a measure as a newspaper editorial that we have
no way of knowing anyone actually read. See Ecumenical
Ministries, 318 at 560 n 8 (a measure’s history includes con-
temporaneous newspaper reports and editorials).
That does not necessarily mean that such legis-
lative history will have significant weight. As always, the
weight that the courts will accord a particular bit of enact-
ment history will depend on the circumstances—including
the clarity with which the legislature’s or the people’s inten-
tions have been expressed in the text of an enactment and
the nature of the history itself. See State v. Gaines, 346 Or
160, 172, 206 P3d 1042 (2009) (“[W]hether the court will
conclude that the particular legislative history on which a
party relies is of assistance in determining legislative intent
will depend on the substance and probative quality of the
legislative history itself.”).
Cite as 357 Or 619 (2015) 635
In this case, Representative Mannix’s explanation
does appear to support the conclusion that Article I, section
44(1)(b), applies to the sentencing guidelines limitation on
consecutive sentencing at issue in this case. As the state
contends—and defendant does not contest—that limitation
was the only such limitation on consecutive sentencing that
existed at the time.
Defendant’s argument that Mannix appears to
have misapprehended the state of the law at the time of
his remarks is unavailing. To the extent that defendant is
correct, it means that Mannix erroneously understood that
there were other limitations in addition to the one at issue in
this case that would be affected by the adoption of Article I,
section 44(1)(b). Perhaps it demonstrates that Mannix incor-
rectly thought that the adoption of the amendment would
have had greater effect than it actually did. But it does noth-
ing to demonstrate that it failed to have at least the effect of
eliminating the sole obstacle to the imposition of consecutive
sentencing that actually existed at that time.
Defendant contends that, in any event, the reason
that OAR 213-012-0040(2) was the only limitation on con-
secutive sentencing at that time suggests that the legisla-
ture was aware of a clear distinction between sentencing
for crimes and imposing sanctions on probation revocation.
According to defendant, in 1996, the voters approved Ballot
Measure 40, which enumerated a number of crime victims’
rights, including a right to have convicted criminals sen-
tenced consecutively for crimes against different victims.
See generally State v. Fugate, 332 Or 195, 199, 26 P3d 802
(2001) (summarizing measure). Measure 40 was declared
unconstitutional in Armatta v. Kitzhaber, 327 Or 250, 252,
959 P2d 49 (1998). But, in the meantime, the legislature
passed Senate Bill 936, legislation implementing the mea-
sure, which legislation included sections explicitly direct-
ing the Oregon Criminal Justice Commission to amend
specified sentencing guidelines rules limiting the authority
of courts to impose consecutive sentences. Or Laws 1997,
ch 313, §§ 26, 27. That legislation did not direct the commis-
sion to amend what is now OAR 213-012-0040(2). In defen-
dant’s view, the clear implication is that the legislature did
not view that rule to involve sentencing for a crime.
636 State v. Lane
Even assuming defendant’s reading of the history
of SB 936 is accurate, it is not clear that Representative
Mannix or any other legislator was aware of it; indeed,
defendant’s point appears to be that Mannix was not aware
of it. Thus, at best, it introduces some ambiguity in the leg-
islative history, but offers nothing clearly to the contrary of
what our analysis of the text in context demonstrates.
There remains defendant’s argument that, even
if Representative Mannix accurately referred to the sole
remaining limitation on the imposition of consecutive sen-
tencing, Article I, section 44(1)(b), was not intended to
displace that limitation but, instead, was intended only
to prohibit as yet unenacted legislative limitations on the
imposition of consecutive sentences. Defendant claims to
find support for that reading of the constitution in the mea-
sure’s ballot title, specifically its “yes” vote result state-
ment, which states that the measure “guarantees consecu-
tive sentencing authority,” and the summary, which states
that the measure “also bars laws limiting consecutive sen-
tences for crimes against certain victims.” He also relies on
the explanatory statement, which states that the measure
“also prohibits laws that would limit a court’s authority
to sentence a person consecutively for crimes committed
against different victims.” Official Voters’ Pamphlet—
Statewide Measures, Special Election, Nov 2, 1999, 38.
According to defendant, that phrasing suggests “a prospec-
tive limitation on the authority of a future legislature to
enact limitations on a sentencing judge’s ability to impose
consecutive sentences.” And, finally, he relies on one of the
arguments in favor of the measure, which states that the
measure “prohibits the Legislature from passing laws that
limit the authority of the sentencing judge from imposing
consecutive sentences” for crimes against different victims.
Id. at 39 (argument in favor by Steve Doell, Crime Victims
United).
Defendant’s conclusion, however, does not follow
from the evidence on which he relies. To begin with, defen-
dant fails to identify any wording in the text of Article I, sec-
tion 44(1)(b), that even arguably suggests that the amend-
ment was intended to prohibit only future laws, leaving in
place any existing restrictions on consecutive sentencing.
Cite as 357 Or 619 (2015) 637
Thus, it is not at all clear what wording of the constitution
defendant’s evidence is supposed to illuminate. Aside from
that, the portions of the enactment history on which he relies
do not fairly convey the meaning that he ascribes to them.
The fact that a proposed amendment, for example, “bars” or
“prohibits” laws limiting consecutive sentences for certain
crimes, by itself, does not suggest that it bars or prohibits
such laws only prospectively.
Defendant argues that, even if it is not clear that
Article I, section 44(1)(b), does not apply to probation revoca-
tion sanctions, we should adopt that interpretation of the pro-
vision to avoid its possible unconstitutionality. Specifically,
he asserts that, if Article I, section 44(1)(b), “allows that
people may be ‘sentenced’ once for committing a crime and
‘sentenced’ again for violating probation, it violates the Fifth
Amendment’s [double jeopardy] bar against multiple pun-
ishments for the same offense.”
We are not persuaded. The canon of interpretation
that counsels avoidance of unconstitutionality applies only
when a disputed provision remains unclear after examina-
tion of its text in context and in light of its enactment his-
tory. See State v. Kitzman, 323 Or 589, 602, 920 P2d 134
(1996) (if legislative intent remains unclear after consider-
ing text, context, and legislative history, court may apply
maxim that, “when one plausible construction of a statute is
constitutional and another plausible construction of a stat-
ute is unconstitutional, courts will assume that the legisla-
ture intended the constitutional meaning”). In light of our
analysis of the text of Article I, section 44(1)(b), in its con-
text, and in light of its enactment history, it is not clear to
us—and defendant does not explain—the nature of the per-
sistent ambiguity that application of the avoidance canon
ordinarily requires.
In any event, defendant is incorrect that constru-
ing Article I, section 44(1)(b), to apply to probation viola-
tion sanctions poses constitutional difficulties. It has long
been held that the constitutional double jeopardy prohibi-
tion is not offended by the imposition of probation revoca-
tion sanctions. See, e.g., United States v. DiFrancesco, 449
US 117, 137, 101 S Ct 426, 66 L Ed 2d 328 (1980) (noting
638 State v. Lane
that “there is no double jeopardy protection against revo-
cation of probation and the imposition of imprisonment”).
Moreover, the rationale for that holding has nothing to do
with whether the imposition of probation revocation sanc-
tions amounts to “sentencing.” In fact, in DiFrancesco, the
United States Supreme Court rejected the argument that
a statute allowing the government to appeal a defendant’s
sentence would result in multiple sentencing and thus run
afoul of the double jeopardy prohibition. Id. at 136-37; see
also State v. Barrett, 350 Or 390, 405-07, 255 P3d 472 (2011)
(explaining DiFrancesco). Rather, the rationale turns on the
fact that the offender, by his or her own actions, triggers the
conditions that permit the imposition of sanctions. See, e.g.,
Ralston v. Robinson, 454 US 201, 220 n 14, 102 S Ct 233,
70 L Ed 2d 345 (1981) (“Such a scheme hardly constitutes
multiple punishments, since the offender has, by his own
actions, triggered the condition that permits the appropriate
modification of the terms of confinement.”).
In short, we conclude that the text in context along
with its enactment history reveal that the voters most
likely understood that the prohibition in Article I, section
44(1)(b)—that no law may limit a court’s authority to impose
consecutive sentences for crimes against multiple victims—
applies to the imposition of probation violation sanctions.
The text of the constitutional provision indicates that a “sen-
tence” is “[a] term of imprisonment imposed by a judge in
open court.” That is precisely what occurs when a trial court
imposes a term of imprisonment as a probation revocation
sanction. Consistently with that reading of the text, mul-
tiple statutes and administrative rules refer to probation
revocation sanctions as “sentences.” In fact, defendant could
not bring this appeal were the imposition of such sanctions
not “sentencing.” The legislative history, although meager,
tends to confirm that reading of the constitution; there cer-
tainly is no history that contradicts it.
In reaching that conclusion, we emphasize that
Article I, section 44(1)(b), does not necessarily require the
imposition of consecutive sentences when there are multiple
victims. By its terms it forecloses any other law from lim-
iting a court’s authority to impose such sentencing where
there are multiple victims.
Cite as 357 Or 619 (2015) 639
In this case, because OAR 213-012-0040(2)(a) lim-
ited the trial court’s authority to sentence defendant con-
secutively for his crimes against different victims, Article I,
section 44(1)(b), invalidated it. The trial court thus did not
err in concluding that it has authority to impose consecutive
sentences. The Court of Appeals did err when it concluded
that the constitutional provision does not apply to prison
terms imposed as a penalty for a probation violation.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.