State v. Keyes

                                      762

            Submitted August 16, 2019, affirmed January 23, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  NICHOLLE SHERRE KEYES,
                    aka Nicholle Sheree Keys,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      16CR66477; A166980
                                  

    Defendant initially received a downward dispositional departure sentence of
probation for her conviction of first-degree theft. After defendant was sentenced
to probation, ORS 137.717 (2015) was amended to reduce the presumptive prison
sentence for first-degree theft. Those amendments apply to “sentences imposed
on or after January 1, 2018.” Defendant now appeals from a January 12, 2018,
judgment revoking her probation and imposing a 26-month prison sentence pursuant to ORS 137.717 (2015). Defendant argues that the reduced sentence of the
2017 amendments applied to defendant’s revocation sanction because it was a
“sentence[ ] imposed” within the meaning of the 2017 amendments. Defendant
argues that State v. Orcutt, 

, 

 (2016), rev den,

 (2017), in which the Court of Appeals rejected a similar argument, is
not controlling. Held: The trial court did not err in calculating the prison term
imposed based on ORS 137.717 (2015). Defendant has not pointed to anything in
the 2017 amendments to ORS 137.717 that reflects either an explicit or implicit
legislative intent to give the phrase “sentences imposed,” as used in the 2017
amendments, a different meaning than how the court construed that phrase, as
used in the 2013 amendments, in Orcutt.
    Affirmed.



    David F. Rees, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
Cite as 

 (2020)   763

  ORTEGA, P. J.
  Affirmed.
764                                            State v. Keyes

        ORTEGA, P. J.
         Defendant challenges the judgment revoking her
probation, arguing that the trial court erred in sentencing defendant to a prison term of 26 months based on the
version of ORS 137.717 that was in effect at the time she
was originally sentenced and not the version in effect at the
time that her probation was revoked. On review for errors of
law, State v. Thompson, 

, 

,
rev den, 

 (2013), we affirm.
         The following facts are procedural and undisputed.
On January 3, 2017, defendant was convicted of first-degree
theft. Pursuant to ORS 137.717 (2015), amended by Or
Laws 2017, chapter 673, sections 5 to 6, defendant’s statutory presumptive sentence was 26 months of prison. See
ORS 137.717(1)(b) - (3)(a) (2015) (stating that the presumptive sentence for first-degree theft is 18 months in prison
if a defendant has certain qualifying convictions and that
the total sentence can be increased by two months for each
additional qualifying conviction). The trial court, however,
imposed a downward dispositional departure from imprisonment to 36 months of probation. After that judgment
was entered, the legislature enacted House Bill (HB) 3078
(2017), which amended ORS 137.717 (2015) and reduced the
presumptive sentence for first-degree theft. Or Laws 2017,
ch 673, § 5. Those changes took effect on January 1, 2018. Or
Laws 2017, ch 673, § 12. On January 12, 2018, the trial court
revoked defendant’s probation and sentenced defendant to
a probation sanction of 26 months in prison based on ORS
137.717 (2015).
         On appeal, defendant argues that the 2017 amendments to ORS 137.717 applied to defendant’s revocation sentence and that the trial court erred in calculating defendant’s
sentence using ORS 137.717 (2015). Defendant acknowledges that, pursuant to the Oregon Administrative Rules,
the available sentence following a felony probation revocation is ordinarily determined by the available sentence on
the date of the original sentencing. See ORS 137.545(5)(b)
(allowing courts to revoke probation for defendants sentenced for felonies and impose a sanction as provided by
the rules of the Oregon Criminal Justice Commission);
Cite as 

 (2020)                                               765

OAR 213-010-0002(2) (allowing courts to impose a probation revocation sanction on downward dispositional departures “up to the maximum presumptive prison term which
could have been imposed initially”); OAR 213-003-0001(16)
(defining presumptive prison sentence); State v. Orcutt, 

, 

 (2016), rev den, 

(2017) (concluding that sentences imposed pursuant to ORS
137.717 are “ ‘presumptive prison sentences’ for purposes of
OAR 213-010-0002(2)”). However, in this case, defendant
argues that the 2017 amendments control the prison term
of her probation revocation sanction. To support that argument, defendant points to section 13(2) of HB 3078, which
states that the amendments to ORS 137.717 “apply to sentences imposed on or after January 1, 2018,” implicitly arguing that a “sentence[ ] imposed” within the meaning of HB
3078 includes probation revocation sanctions. We disagree.
         In determining whether the legislature intended
the phrase “sentences imposed” to include probation revocation sanctions, we look to the statute’s text, context, and,
if helpful, the legislative history. State v. Gaines, 

, 

 (2009). Our analysis of the context includes prior opinions interpreting the same statutory
wording. Wal-Mart Stores, Inc. v. City of Central Point, 

, 

 (2006).
          In interpreting the phrase “sentences imposed,”
Orcutt is instructive. In Orcutt, the defendant was convicted
of identity theft, and her presumptive sentence under the
version of ORS 137.717 in effect at the time of her conviction
was 34 months in prison.1 

. However, the
trial court sentenced her to a downward departure to probation. 

 Following the judgment of conviction, the legislature
amended the applicable version of ORS 137.717 to decrease
the presumptive sentence for identity theft. Or Laws 2013,
ch 649, § 5. The 2013 legislation specified that the amendments to ORS 137.717(1) apply to “sentences imposed on or

    1
      In 2009, the legislature amended ORS 137.717. Or Laws 2009, ch 660, §§ 8,
11. Those amendments applied to sentences imposed on or after February 15,
2010, and for crimes committed on or after January 1, 2009, and before January 1,
2012. Id. at § 49(4). Because Orcutt involved a crime that was committed after the
applicability dates of the 2009 amendments, the preamendment version of ORS
137.717 applied.
766                                             State v. Keyes

after August 1, 2013.” Or Laws 2013, ch 649, § 6. After the
amendments went into effect, the defendant’s probation
was revoked and she was sentenced to 34 months of prison.
Orcutt, 

. The defendant argued that
the phrase “sentences imposed” in the amended version of
the statute included probation revocation sanctions and,
thus, the court erred in not imposing the reduced presumptive prison sentence based on the amended version of ORS
137.717. 

.
          In rejecting that argument, we looked at the statute’s text in context and construed the phrase “sentences
imposed” in the context of ORS 137.717 as a whole. We reasoned that the considerations in determining a person’s sentence under ORS 137.717 are different than the considerations in determining a probation revocation sanction under
OAR 213-010-0002(2), which governs the term of imprisonment for a felony probation revocation sanction. 

. Thus, we concluded, “it is plain that a ‘sentence[ ]
imposed’ is a sentence imposed according to the rules set out
in amended ORS 137.717” and not as a result of a probation
revocation sanction. 

 (brackets in Orcutt). That is,
a “ ‘sentence[ ] imposed’ under 137.717 is a sentence initially
imposed upon conviction,” and not a sentence imposed at
the time the probation is revoked. 

 (emphasis and
brackets in Orcutt).
          We found additional support in section 6(2) of the
enacted bill for our conclusion that a “sentence[ ] imposed”
is a sentence imposed at the time of conviction. Section 6(2)
provided that the amendments “do not apply to persons who
were originally sentenced before August 1, 2013, and who
are subsequently resentenced on or after August 1, 2013, as
the result of an appellate decision or a post-conviction relief
proceeding or for any other reason.” Or Laws 2013, ch 649,
§ 6(2). Section 6(2), we explained, “reinforces the conclusion
that section 6(1) applies only to the ‘sentences imposed’ initially at the time of conviction.” Orcutt, 

.
         Defendant has not pointed to anything in the
2017 amendments to ORS 137.717 that reflects either an
explicit or implicit legislative intent to give the phrase “sentences imposed” as used in the 2017 amendments a different
Cite as 

 (2020)                             767

meaning than how we construed that phrase in the 2013
amendments in Orcutt, and we see no reason to construe
it differently. See Wal-Mart Stores, Inc., 

(“[A] presumption exists that amendatory acts do not
change the meaning of preexisting language further than
is expressly declared or necessarily implied.” (Internal
quotation marks omitted.)). To begin, the legislature used
language in the effective date provision of the 2017 amendments that is identical to that used in the effective date provision of the 2013 amendments. See Or Laws 2017, ch 673,
§ 13(2) (“The amendments to ORS 137.717 … by sections
4 and 5 of this 2017 Act apply to sentences imposed on or
after January 1, 2018.”); Or Laws 2013, ch 649, § 6(1) (“The
amendments to ORS 137.717 by section 5 of this 2013 Act
apply to sentences imposed on or after August 1, 2013.”).
The legislature’s use of the same phrase in the 2017 amendments as that used in the 2013 amendments, in light of
Orcutt, is strong evidence that the legislature did not intend
to give that phrase a different meaning. See Mastriano
v. Board of Parole, 

, 

 (2007)
(“[W]e generally presume that the legislature enacts statutes in light of existing judicial decisions that have a direct
bearing on those statutes.”). Thus, we construe the phrase
as we did in Orcutt and decline defendant’s invitation to
broaden the phrase “sentences imposed” to include probation revocation sanctions.
         Defendant points to one aspect of the 2017 amendments that, she contends, reflects a different legislative
intent from that of the 2013 amendments. Defendant notes
that, unlike the 2013 amendments, whose applicability was
limited by excluding persons who were originally sentenced
before the amendments went into effect and who were
later resentenced as a result of appellate review or post-conviction proceedings, Or Laws 2013, ch 649, § 6(2), the
2017 amendments contain no such limitation. Defendant
contends that this difference “reveals a different legislative
intent—namely, an intent that the 2017 amendments in
HB 3078 apply more broadly than the 2013 amendments in
[House Bill (HB) 3194.]” Further, defendant argues, because
Orcutt relied on section 6(2) of HB 3194 in concluding that
the legislature did not intend the term “sentences imposed”
768                                                           State v. Keyes

to include terms of incarceration imposed on a revocation
of probation, Orcutt’s interpretation of that phrase is not
controlling because HB 3078 does not include that same
limitation.2
         We reject defendant’s argument that the post-Orcutt
amendments express a legislative intent that the phrase
“sentences imposed” means something different from our
prior interpretation in Orcutt. First, defendant gives too
much weight to our reliance on section 6(2) in that decision.
Section 6(2) simply provided support for what we had already
concluded after considering the text and construing the
phrase “sentences imposed” in the context of ORS 137.717,
an analysis that applies with equal force here. Second, even
if the legislature did intend to broaden the applicability of
the 2017 amendments by applying the amendments to persons who are resentenced after appellate review and post-conviction relief proceedings—an issue that is not before us
and that we do not decide—that difference does not, either
explicitly or implicitly, reflect a legislative intent to change
Orcutt’s interpretation of “sentences imposed” to include
probation revocation sanctions, which is entirely distinct
from a resentencing.
         Therefore, OAR 213-010-0002(2) controlled the prison
term that the court was authorized to impose, and the trial
court did not err in imposing 26 months of prison as a probation revocation sanction based on defendant’s presumptive
sentence at the time that she was originally sentenced.
           Affirmed.




    2
      In comparing the changes to the 2013 bill and the 2017 bill, defendant references the emergency clause in the 2017 bill. See HB 3078, § 15 (stating that “an
emergency is declared to exist, and this 2017 Act takes effect on its passage”).
However, defendant does not explain how the emergency clause supports her
argument and we, therefore, reject it without discussion.