State v. Waters

                               171

           Submitted February 11, affirmed March 18, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  CURTIS LEE WATERS,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   16CR27224; A168408
                            

  Patricia L. McGuire, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Powers, Judge, and
Hadlock, Judge pro tempore.
  PER CURIAM
  Affirmed.
172                                           State v. Waters

        PER CURIAM
         In this appeal from a judgment revoking his probation, defendant challenges the trial court’s decision to hold a
late probation revocation hearing and its correlative failure
to release him from custody pending the hearing. Defendant
contends that the court’s decisions were erroneous, entitling
him to a new revocation hearing. We affirm because the
trial court’s error, if any, was harmless.
         ORS 137.545(6) provides that, “[e]xcept for good
cause shown, if the revocation hearing is not conducted
within 14 calendar days following the arrest or detention
of the probationer, the probationer shall be released from
custody.” In this case, the trial court found that there was
good cause to delay the revocation hearing and later revoked
defendant’s probation. Because the court found good cause
to hold the hearing late, defendant was not released from
custody while he waited for his hearing, at which the court
revoked defendant’s probation. Defendant challenges (1) the
court’s prehearing determination that there was “good
cause” under ORS 137.545 to hold the revocation hearing
more than 14 calendar days after defendant’s arrest on the
probation violation warrant and (2) its concomitant failure
to release defendant from custody pending the hearing.
Defendant contends that, “[e]ven if the court cannot now
grant defendant’s pre-hearing release,” the court’s errors
were prejudicial because, if the court had not erred, “it
might have granted defendant’s release or other, alternative
relief, and defendant may have been able to use the extra
time to come into compliance with probation or to otherwise
convince the court to exercise leniency.”
         We conclude that the trial court’s errors, if any,
were harmless. That is, contrary to defendant’s assertions,
there is little likelihood that any errors in the court’s pre-hearing decisions affected its ultimate revocation decision.
As the state notes, the record reflects that defendant was on
a “no-bail hold out of Clackamas County” on another charge
at the time of these revocation proceedings and, consequently, would have been in custody regardless of the court’s
prehearing decision under ORS 137.545. Beyond that, the
record reflects that defendant was represented by counsel
Cite as 

 (2020)                           173

at the revocation hearing and otherwise had a full and fair
opportunity to contest revocation. On this record, we are
confident that different prehearing decisions would not have
altered the outcome of the revocation hearing.
        Affirmed.