State v. Hunt

                                      71

    On appellant’s petition for reconsideration filed August 1, respondent’s
  response to appellant’s petition for reconsideration filed November 12, and
appellant’s reply filed November 13; reconsideration allowed, order of Appellate
Commissioner dismissing appeal adhered to October 7, 2020; petition for review
                       denied February 4, 2021 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                NORMAN KENNETH HUNT, JR.,
                  aka Norman Kenneth Hunt,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR14965; A170851
                                  

    Defendant petitions for reconsideration of the Appellate Commissioner’s
order, which dismissed his appeal on the ground that the two orders that he
appeals are not appealable. Defendant contends that the two orders he appeals
are appealable under ORS 138.035(3) because they impose new or modified conditions of probation. Held: The orders defendant appeals impose sanctions, not new
or modified conditions of probation, and are not appealable under ORS 138.035(3).
   Reconsideration allowed; order of Appellate Commissioner dismissing appeal
adhered to.



    Eric J. Bloch, Judge. (Order - March 20, 2019)
    Michael A. Greenlick, Judge. (Order - March 29, 2019)
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, for petition and reply.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, for response.
  Before Tookey, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
    TOOKEY, P. J.
   Reconsideration allowed; order of Appellate Commissioner
dismissing appeal adhered to.
72                                                State v. Hunt

         TOOKEY, P. J.
         Defendant petitions for reconsideration of the
Appellate Commissioner’s order, which dismissed his appeal
on the ground that the two orders that he appeals are not
appealable under ORS 138.035(3). That statute, among other
things, allows a defendant to appeal orders “imposing a new
or modified condition of probation.” We grant defendant’s
motion for reconsideration. On reconsideration, we adhere to
the Appellate Commissioner’s order dismissing the appeal.
          I. FACTS & PROCEDURAL HISTORY
         Defendant was convicted of one count of delivery of
methamphetamine, ORS 475.890. In the judgment of conviction, defendant was sentenced to “Supervised Probation
for a period of 36 month(s).” The judgment of conviction also
expressly specified the “conditions of probation” to which
defendant would be subject. Those were “all general conditions of probation (ORS 137.540)” and the following “Special
Conditions of Probation (ORS 137.540(2))”: assignment to a
drug court and assignment to a particular judge for “judicial supervision of probation.” Among the general conditions
of probation to which defendant was subject were that he
would “[n]ot use or possess controlled substances except pursuant to a medical prescription,” and that he would “[s]ubmit
to testing for controlled substance, cannabis or alcohol use.”
         On February 20, 2019, defendant appeared in court
after having missed a required urinalysis (UA) and having
two UAs test positive for methamphetamine. The trial court
explained to defendant that, “for a missed UA, [defendant],
you’re going to have to do a day of community service,” and
issued an order requiring defendant to complete eight hours
of community service by February 27, 2019.
         Concerning the positive UAs, defendant explained
his belief that the UAs were false positives resulting from
the medications that he was taking. The court told defendant that it could schedule a contested probation violation
hearing, but noted that, “[i]f I find you in violation for using
on these facts, I’m also going to find you in violation for being
dishonest about the use and that carries with it a separate
and more serious consequence.”
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         A contested probation violation hearing was held on
March 18, 2019. Prior to the presentation of evidence, the
trial court explained to the parties:
      “At the conclusion of this evidentiary hearing, I do
   intend to take the matter under advisement and then render my decision. And should that decision be that [defendant] is in violation of his probation, to impose a sanction or
   consequence during the regular [drug court] docket.”
(Emphasis added.) At the end of the hearing, the trial court
noted:
      “So in terms of the process from here, as I said, I’m
   going to review my notes, consider all the evidence, render
   my decision, and if the decision is that [defendant] violated
   the conditions of his probation by using a prohibited substance and by being dishonest about it, then I will impose
   a sentence, and those things will occur on our [drug court]
   docket.”
(Emphasis added.)
         Defendant appeals two orders subsequently issued
by the trial court. First, defendant appeals a March 20,
2019, order that found defendant “in willful violation of probation” for “use and dishonesty.” That order imposed a $25
“probation violation fee” and provided the following “disposition” regarding probation:
      “2 day book [and] keep - turn self in
      “Turn self in for 2nd book [and] keep on weekend for 2
   days
      “Complete previously given [community service] orders
   by 3/30”
(Some capitalization omitted.)
         Second, defendant appeals a March 29, 2019, order,
which stated, “deadline for jail sanction imposed 3/20/2019
is 3/30/2019. Defendant must complete sanction by serving
1 weekend day on 3/30/2019.” (Some capitalization omitted.)
        Relevant to our analysis of the appealability of the
March 20, 2019, order and the March 29, 2019, order is ORS
138.035(3), which provides:
74                                                  State v. Hunt

         “A defendant may appeal a judgment or order extending
     a period of probation, imposing a new or modified condition
     of probation or of sentence suspension, or imposing or executing a sentence upon revocation of probation or sentence
     suspension.”
         Because the orders that defendant appeals did “not
appear to do any of those things,” the Appellate Commissioner
ordered defendant to show cause why the appeal should
not be dismissed. In his response, defendant argued that
“this case is appealable under ORS 138.035(3)” because the
March 20, 2019, order “added a new condition that defendant serve two days in jail.” Defendant did not directly
address the appealability of the March 29, 2019, order. The
Appellate Commissioner was not persuaded by defendant’s
appealability argument and, accordingly, entered an order
dismissing the appeal.
                         II. ANALYSIS
          On reconsideration, defendant contends that the
orders that he appeals are appealable “because they impose
new conditions of probation (jail and a financial sanction)
and modify existing conditions of probation (the deadlines
for fulfilling the jail sanction and a prior community service sanction).” As support for that argument, defendant
points to, among other things, the dictionary definition of
“condition.” The state disagrees with defendant, contending, among other points, that the “orders at issue did not
‘modify’ conditions of probation.” The state highlights that,
under OAR 213-005-0013, the trial court can impose jail as
a “sanction” for probation violations.
A. Probation Generally
         As context for our discussion, we first provide some
brief background regarding probation.
         The word “probation,” as it is used with respect
to criminal law, is a legal term, traditionally meaning “a
court-imposed criminal sentence that, subject to stated
conditions, releases a convicted person into the community
instead of sending the criminal to jail or prison.” Black’s
Law Dictionary 1456 (11th ed 2019). In Oregon, “probation
is a creature of statute.” State v. Carmickle, 

, 762
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 (1988). ORS 137.540(1) provides a list of “general
conditions” of probation to which probationers are subject
“unless specifically deleted by the court,” and ORS 137.540(2)
gives sentencing judges the authority to impose “any special
conditions of probation that are reasonably related to the
crime of conviction or the needs of the probationer for the
protection of the public or reformation of the probationer.”
A “condition of probation” is a requirement imposed by a
“governmental actor to avoid a substantial adverse consequence.” State v. Bentley, 

, 

(2010), rev den, 

 (2011).
          The adverse consequence for violating a condition
of probation may come in the form of a “sanction.” See ORS
137.593(2) (sentencing judge retains authority to “determine
whether conditions of probation have been violated and to
impose sanctions for the violations if the court, at the time
of sentencing, states on the record that the court is retaining such authority” (emphasis added)); ORS 137.595(1)
(directing the department of Department of Corrections
to adopt rules “establishing a system of structured, intermediate probation violation sanctions” (emphasis added));
ORS 137.595(2) (providing that “[r]ules adopted by the
Department of Corrections” shall provide “a probationer
with written notice of the probationer’s right to a hearing
before the court to determine whether the probationer violated the conditions of probation …, and if so, whether to
… order sanctions for any violations” (emphasis added)); see
also State v. Richards, 

, 

 (2017)
(“The legislature charged the Department of Corrections
with adopting rules to specify particular sanctions for violating probation conditions.”). That understanding of what
a “sanction” is with respect to probation violations accords
with the definition of the word “sanction” both as a legal
term and when given its ordinary meaning. Black’s at 1608
(defining “sanction,” in relevant part, as a “provision that
gives force to a legal imperative by either rewarding obedience or punishing disobedience”); Webster’s Third New
Int’l Dictionary 2008-09 (unabridged ed 2002) (among other
definitions, a “sanction” is “the detriment, loss of reward, or
other coercive intervention that is annexed to a violation of
a law as a means of enforcing the law and may consist in the
76                                                              State v. Hunt

direct infliction of injury or inconvenience (as in the punishments of crime) or in mere coercion, restitution, or undoing
of what was wrongly accomplished (as in the judgments of
civil actions) or may take the form of a reward which is withheld for failure to comply with the law” and also “a restrictive measure used to punish a specific action or to prevent
some future activity”).
          The distinction between a “condition of probation”
and a “sanction” is an important one. As we explained in
State v. Kelemen, 

, 

 (2019),
revocation of probation is not authorized “in the absence of
a finding that an offender had violated the conditions of probation either by committing a new crime or in some other
way.” Thus, a probationer’s failure to comply with a probation officer’s “directives” to complete a “work crew sanction”
was not grounds for a trial court to revoke probation, where
that failure did not also violate a “condition of probation.”

. Similarly, as we explained in State v. Ramirez,

, 601-02, 

 (2019), violation of a
court’s order that a probationer appear in court on a particular day is not grounds for revocation of probation where the
requirement that the probationer appear in court on that
particular day was not a “general or special condition of probation imposed on defendant by the court.”1
B. Construing ORS 138.035(3)
          With that background in mind, we turn back to
the resolution of the present case. As noted above, ORS
138.035(3) provides, in relevant part, that “[a] defendant may
appeal a judgment or order … imposing a new or modified
condition of probation.” The meaning of that phrase presents
a question of statutory interpretation, which is a legal question. King v. King, 

, 

 (2018),
rev den, 

 (2019). When we interpret a statute, “[w]e
ascertain the legislature’s intentions by examining the text
of the statute in its context, along with any relevant legislative history, and, if necessary, canons of construction.” State
v. Cloutier, 

, 

 (2011) (citing State v.
Gaines, 

, 

 (2009)).

    1
      Violation of such an order could, “[p]erhaps,” lead to holding the probationer
in contempt. Ramirez, 298 Or App at 602 (so noting).
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         The legislature did not define “condition” as that
word is used in ORS 138.035(3) and, therefore, we look to the
dictionary for guidance, Pride Disposal Co. v. Valet Waste,
LLC, 

, 759, 

, rev den, 

(2019), while keeping in mind that “we do not simply consult dictionaries and interpret words in a vacuum” because
dictionaries “do not tell us what words mean, only what
words can mean, depending on their context and the particular manner in which they are used,” Cloutier, 

(emphasis in original).
         “Condition” is defined, as relevant here, as “something established or agreed upon as a requisite to the doing
or taking effect of something else.” Webster’s at 473; see
Ramirez, 298 Or App at 600 n 5 (noting that definition of
“condition” when discussing ORS 137.540(12)(a), which references “conditions of the defendant’s probation”). We thus
understand “condition of probation” to mean something
established that is requisite to the doing or taking effect
of the probation. From that definition, it is not apparent to
us that a court-ordered “sanction” when a probationer has
violated a condition of probation is itself a “condition of probation,” although that is perhaps possible.
         Context reflects, however, that the legislature did
not intend for “condition of probation,” as that phrase is
used in ORS 138.035(3), to include “sanctions” imposed by
the court for violating conditions of probation. Notably, other
statutes regarding probation demonstrate that the legislature intended for there to be a distinction between “sanctions” and “conditions of probation.” See State v. Klein, 

, 

 (2012) (a statute’s context includes
“related statutes”). For example, ORS 137.593(2) provides
that the sentencing judge “shall retain authority” to “cause
a probationer to be brought before the court” and to “impose
such other or additional sanctions or modify the conditions of probation as authorized by law.” (Emphasis added.)
Similarly, ORS 137.595(2) requires that rules adopted by
the Department of Corrections shall “provide a probationer
with written notice of the probationer’s right to a hearing
before the court to determine whether the probationer violated the conditions of probation alleged in a probation violation report, and if so, whether to continue the probationer
78                                                             State v. Hunt

on probation subject to the same or modified conditions, or
order sanctions for any violations.” (Emphasis added.) A distinction between “sanctions” and “conditions” also appears
in ORS 144.101(3), which concerns post-prison supervision.

 (“If a local supervisory authority imposes conditions of
post-prison supervision or sanctions for violations of those
conditions, the person may request the board to review the
conditions or sanctions. The board shall review the request
and may, at its discretion, review the conditions and sanctions, under rules adopted by the board.” (Emphases added.)).
          In interpreting statutes, “we assume that the legislature did not intend any portion of its enactments to be
meaningless surplusage,” State v. Stamper, 

, 

, rev den, 

 (2005), and “the general assumption of consistency counsels us to assume that
the legislature intended the same word to have the same
meaning throughout related statutes unless something in
the text or context of the statute suggests a contrary intention,” Village at Main Street Phase II v. Dept. of Rev., 

, 

 (2014).
          Given the general assumption of consistency, construing “condition of probation,” as that phrase is used in
ORS 138.035(3), to include “sanctions” imposed for violating
a condition of probation, would suggest that the references
to “sanctions” in ORS 137.593(2), ORS 137.595(2) and ORS
144.101(3) are meaningless surplusage. That is because it
would suggest that the “conditions” referenced in those statutes would include “sanctions” as well. We assume that was
not the legislature’s intent. That is, we understand the legislature to have intended for there to be a distinction between
“sanctions” and “conditions of probation.”2
    2
      Defendant argues that “this court and the Supreme Court have emphasized that the relevant statutes and rules do not consistently distinguish between
particular terms when referring to a trial court’s authority over probationers.”
Defendant maintains that, in State v. Lane, 

, 

 (2015), the
court “rejected the defendant’s argument that ORS chapter 137 and the sentencing guidelines contemplated a distinction between a ‘sentence’ and a ‘sanction’
for violations of probation,” and in Ramirez, 298 Or App at 600 n 5, “this court
explained that the legislature used the phrases ‘terms of probation’ and ‘conditions of probation’ interchangeably in ORS 137.540.” In this case, however, we do
not view what defendant points to as “direct evidence of legislative intent” that
requires us to disregard the assumptions to which we turn in interpreting the
statute at issue in this case. Lane, 

.
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         Other aspects of Oregon’s probation scheme also
suggest that the legislature did not intend “condition of probation” in ORS 138.035(3) to include “sanctions” imposed for
violating conditions of probation.
         Specifically, OAR 213-005-0013(2)(b) provides that
the sentencing judge may impose “[o]ne or more jail terms
as a sanction for probation violations over the term of probation.” Jail terms that are imposed as “sanctions” under
OAR 213-005-0013 are “part of a probationary sentence.”
OAR 213-005-0013(1). Jail terms may also be imposed as
a “condition of probation” under ORS 137.540(2)(b)(A). 

(providing that a defendant can be “confined in the county
jail” as a “special condition[ ] of probation”); see also ORS
137.523 (recognizing that a judge may sentence a defendant to “confinement in a county jail as a condition of
probation”).
          Importantly, the legislature has recognized that
a distinction exists between a jail term imposed as “part
of a probationary sentence”—i.e., a jail term imposed as a
sanction under OAR 213-005-0013(2)(b)—and a jail term
imposed as a “condition of probation” under ORS 137.540
(2)(b)(A). ORS 137.545(7) provides that
       “[a] defendant who has been previously confined in the
    county jail as a condition of probation pursuant to ORS
    137.540 or as part of a probationary sentence pursuant
    to the rules of the Oregon Criminal Justice Commission
    may be given credit for all time thus served in any order
    or judgment of confinement resulting from revocation of
    probation.”3
(Emphasis added.)

    3
      In his reply brief, in a footnote, defendant contends that, “because OAR
213-005-0013 provides that the jail sanction is part of the sentence, the order
imposing additional jail may constitute an amendment to the original sentence
that would be appealable under ORS 138.035(4).” ORS 138.035(4) provides, in relevant part, “A defendant may appeal an amended or corrected judgment entered
after the judgment of conviction and sentence.” Defendant does not endeavor to
explain how an order imposing a jail sanction is an “amended or corrected judgment” under ORS 138.035(4). The argument is therefore insufficiently developed
for us to address it. See Beall Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

, adh’d to on recons, 

, 

(2003) (it is not “our proper function to make or develop a party’s argument when
that party has not endeavored to do so itself”).
80                                                                 State v. Hunt

         “We are prohibited, by statutory command and by
constitutional principle, from adding words to a statute that
the legislature has omitted.” State v. Patton, 

, 

 (2010), rev den, 

 (2011). If we
were to interpret the phrase “condition of probation,” as it is
used in ORS 138.035(3), to include “sanctions” imposed for
violating conditions of probation, that is precisely what we
would be doing.
         In sum, given the text and context, we conclude that
“condition of probation,” as used in ORS 138.035(3), does not
include “sanctions” imposed by a trial court on a probationer
for violating conditions of probation.4
C. Whether the Orders Defendant Appeals Impose a “New or
   Modified Condition of Probation”
         Having construed ORS 138.035(3), we now consider
whether the orders defendant appeals in this case are
appealable because they “impose a new or modified condition of probation,” as defendant contends.

     4
       We have reviewed the legislative history provided by the parties, and it
does not aid our analysis.
     Defendant notes that ORS 138.035(3) “mirrors” a prior statute, former ORS
138.053(1)(c) to (e), repealed by Or Laws 2017, ch 529, § 26. Citing State v. Hutchins,

, 

 (2016), State v. Flajole, 

, 

(2006), and State v. Benway, 

, 

 (1989), defendant argues
that, prior to passage of ORS 138.035, the “existing case law shows that this
court had regularly permitted appeals from judgments and orders that imposed
jail or financial sanctions for violations of the conditions of probation.” In defendant’s view, if the legislature had intended to limit the appealability of probation
violation orders when it enacted ORS 138.035, it likely would have “identified and
discussed that change” before enacting ORS 138.035. Defendant contends that
the legislature did not identify and discuss that change, and that that legislative
silence is “significant.”
     For two reasons, we are not persuaded that this is a case where legislative
silence is particularly significant. State v. Stout, 

, 

(2018) (explaining the need to be “cautious” about “drawing significant inferences
from legislative silence,” although noting legislative silence can be “significant”
in some cases). First, in none of the opinions cited by defendant did this court
analyze whether the order or judgment the defendant appealed was appealable
under former ORS 138.053, nor do the opinions defendant cites even reference
former ORS 138.053. Second, none of the opinions cited by defendant describe the
judgment or order appealed from with sufficient particularity to disclose whether
it was one that is particularly similar to the orders defendant appeals in this
case. Thus, we do not see our construction of ORS 138.035(3) as a departure from
precedent.
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         As noted above, the March 20, 2019, order imposed
jail time, modified the deadline for completing previously
ordered community service, and imposed a $25 probation
violation fee. The March 29, 2019, order imposed a deadline
for completing the “jail sanction” and mandated that defendant complete that sanction by “serving 1 weekend day on
3/30/2019.”
         We understand the jail term imposed by the trial
court in the March 20, 2019, order to be a “sanction” and
not a “condition of probation.” Indeed, on March 18, 2019,
the trial court expressly stated that, if it determined that
defendant was in violation of his probation, it would “impose
a sanction or consequence” and the March 29, 2019, order
expressly refers to the incarceration term as a “jail sanction.” And, as noted above, OAR 213-005-0013(2)(b) provides
sentencing judges with the authority impose “[o]ne or more
jail terms as a sanction for probation violations over the
term of probation.”
          We also understand the community service referred
to in the March 20, 2019, order to be a “sanction” not a “condition of probation.” Defendant seemingly violated a condition of his probation by missing a required UA. ORS 137.540
(1)(c) (providing, as a general condition of probation, that probationers shall “[s]ubmit to testing for controlled substance
… use … if the probationer has a history of substance
abuse”). As a consequence, rather than revoking defendant’s
probation and sentencing defendant to prison, the trial
court required defendant to complete community service.
See ORS 137.128(1) (“A judge may sentence an offender to
community service either as an alternative to incarceration
or fine or probation, or as a condition of probation.”). Under
those circumstances, we do not understand the community
service ordered by the court to be a “condition of probation,”
but rather a sanction imposed as an alternative to incarceration. Further, we understand changing the deadline
that community service must be completed by to be modification of a sanction, and not modification of a condition of
probation.
        Additionally, we do not believe that the $25 probation violation fee imposed by the trial court was a new
82                                              State v. Hunt

“condition of probation.” Instead, it was part of the sanction
imposed by the trial court. ORS 137.540(12)(a) provides
that, “[i]f the court determines that a defendant has violated the terms of probation, the court shall collect a $25 fee
from the defendant.” Under ORS 137.540(1)(a), a condition
of defendant’s probation was that he pay all “fines, restitution or other fees ordered by the court.” We understand the
$25 probation violation fee to be precisely what ORS 137.540
(12)(a) indicates it is: a fee imposed on defendant as a result
of violating his probation. While failure to pay the fee could
constitute a violation of a condition of probation under ORS
137.540(1)(a), that does not mean that the fee itself is a condition of probation.
         Finally, as for modification of the deadline by which
defendant must complete the “jail sanction” in the March 29,
2019, order, as noted above, we do not understand modification of a “sanction” to be a modification of a “condition of
probation.”
        Reconsideration allowed; order of Appellate Commissioner dismissing appeal adhered to.