DocketNumber: 10CR0319; A157858
Citation Numbers: 281 Or. App. 781, 383 P.3d 946
Judges: Armstrong, Egan, Shorr
Filed Date: 10/26/2016
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals a judgment of conviction for felony driving under the influence of intoxicants (DUII), ORS 813.010(5), raising five assignments of error. We write to address only defendant’s first and second assignments, which, in essence, challenge the denial of his motion for a judgment of acquittal on the DUII charge.
The relevant facts are undisputed. Defendant was charged and convicted under ORS 813.010(5) of felony DUII. ORS 813.010(5) makes DUII a felony when an individual “has *** been convicted of’ three DUII offenses in the 10 years before the individual commits the charged DUII. The state presented evidence at trial that defendant had three prior DUII convictions. Defendant did not dispute two of the predicate convictions, but he did challenge the sufficiency of the evidence on the third. To prove the third offense, the state introduced evidence of a DUII charge from California, which showed that defendant had pleaded no contest to the charge. The California court had accepted defendant’s plea
Defendant contended that the California DUII evidence was legally insufficient to prove a predicate DUII conviction because the evidence did not establish that defendant had had a judgment of conviction entered against him in the California case. The trial court rejected defendant’s argument and convicted defendant of felony DUII.
On appeal, defendant renews his argument that the evidence of the California DUII was insufficient to prove a predicate DUII conviction under ORS 813.010(5). Defendant contends that the term “convicted” in ORS 813.010(5) means a judgment of conviction, and, because the court did not enter a judgment in the California case, defendant’s California DUII offense was not a qualifying conviction. The state responds that “convicted” for purposes of ORS 813.010(5) means a finding of guilt, and, because the California court accepted defendant’s no-contest plea and imposed probation based on the plea, evidence of the California DUII was sufficient to establish a qualifying conviction. We agree with the state.
The meaning of “convicted” in ORS 813.010(5) is a question of statutory construction that we review for legal error. See, e.g., State v. Spainhower, 251 Or App 25, 27, 283 P3d 361 (2012). As noted in Vasquez v. Courtney, 272 Or 477, 479-80, 537 P2d 536 (1975), and as relevant here, “convicted” has two recognized meanings. One means “a finding of guilt by a plea or verdict.” Id. at 480. “The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt.” Id. In Vasquez, the court analyzed former ORS 137.240 (1973), repealed by Oregon Laws 1975, chapter 781, section 10, which provided that “[c]onviction of a felony *** [sjuspends all the civil and political rights of the person so convicted.” The court held that, because the statute deprived people of political and civil rights as a consequence of criminal convictions, the more formal meaning of “convicted” applied to that statute. Vasquez, 272 Or at 480-81. In contrast, the court noted that most courts construe “convicted” to mean a finding of guilt when the term is used in
Our recent decision in State v. Turntine, 265 Or App 323, 336 P3d 513 (2014), rev den, 356 Or 690 (2015), is consistent with Vasquez. There, we construed the meaning of “convicted” in the fourth-degree felony assault statute, ORS 163.160(3)(a) (2013),
Notwithstanding Vasquez and Turntine, defendant contends that a construction of ORS 813.010(5) that treats a finding of guilt as a qualifying DUII conviction conflicts with
Defendant’s argument is based on a misunderstanding of the diversion statutes. See generally State v. Lagrassa, 235 Or App 150, 152, 230 P3d 96, rev den, 349 Or 57 (2010) (explaining DUII diversion process). A defendant who seeks diversion in a DUII case is required to submit a petition that includes, among other things, a guilty or no-contest plea to the DUII charge. ORS 813.200(4)(a). If the court accepts the petition, the court also accepts the plea but withholds entering a judgment of conviction pending the petitioner’s fulfillment of the diversion requirements. ORS 813.230(l)(a). If the petitioner completes diversion, the DUII charge is dismissed with prejudice. See ORS 813.250. However, if the petitioner fails to complete diversion, the court enters the plea and a judgment of conviction on it. See ORS 813.255.
As that description of the diversion statutes indicates, a court does not enter a finding of guilt when it accepts a diversion petition. Hence, construing “convicted”
Further, we were unable to find any legislative history indicating that the legislature intended “convicted” in ORS 813.010(5) to mean the formal entry of a judgment of conviction or that the legislature considered how other states handle pleas or the entry of judgments in DUII cases.
In sum, in the absence of legislative history bearing on the intended meaning of the term “convicted” in ORS 813.010(5), we conclude that the principles applied in Vasquez and Turntine apply to our construction of that term in that statute. ORS 813.010(5) is a statute that imposes a criminal sanction. We conclude, therefore, that the legislature intended “convicted” in ORS 813.010(5) to apply to people who have been found guilty of DUII, even if entry of judgment on that finding is suspended. Hence, the trial court did not err in denying defendant’s motion for judgment of acquittal.
Affirmed.
Although defendant did not make a formal motion for judgment of acquittal, he argued to the trial court, to which the parties tried the case, that the state had failed to introduce sufficient evidence to prove the elements of the crime. The parties agree that that argument was functionally equivalent to a motion for judgment of acquittal. See, e.g., State v. Habibullah, 278 Or App 239, 242 n 1, 373 P3d 1259 (2016) (in a trial to the court, treating arguments about sufficiency of the evidence as equivalent to motion for judgment of acquittal).
ORS 813.010 (5)(a) provides, as relevant:
“Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the person has, at least three times in the 10 years prior to the date of the current offense, been convicted of, or been found to be within the jurisdiction of the juvenile court for an act that if committed by an adult would be, any of the following offenses in any combination:
“(A) Driving while under the influence of intoxicants in violation of:
“(i) This section; or
“(ii) The statutory counterpart to this section in another jurisdiction.”
(Emphasis added.)
ORS 163.160 (3)(a) (2013), amended by Oregon Laws 2015, chapter 639, section 2, provided:
“Notwithstanding subsection (2) of this section, assault in the fourth degree is a Class C felony if the person commits the crime of assault in the fourth degree and:
“(a) The person has previously been convicted of assaulting the same victim!.]”
(Emphasis added.)
Defendant’s argument centers on the 1999 version of the diversion statutes, which had slightly different procedural features from the current version of the statutes. Compare ORS 813.225(4) (1999) (requiring a guilty plea as a condition of an extension of time to complete diversion) with ORS 813.200(4)(a) (requiring a guilty or no-contest plea to enter diversion). However, those differences do not affect the basic principles on which defendant’s argument relies, so we focus on the current version of the statute.