State v. Wilson

                                 166

                Submitted June 2, affirmed July 8, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  STANLEY T. WILSON II,
                    aka Stanley T. Wilson,
                     Defendant-Appellant.
               Multnomah County Circuit Court
                   16CR38320, 18CR52852;
                 A172770 (Control), A172771
                            

   Eric J. Bloch, 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 Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2021)                                           167

          PER CURIAM
         Defendant appeals a judgment that revoked his probation in Case No. 16CR38320, raising two assignments of
error.1 First, he argues that the court erred by finding that
he willfully violated the terms of his probation by refusing
a residential treatment placement. Defendant acknowledges that a trial court is not required to find that a defendant’s probation violation was willful in order to revoke.
See State v. Gray, 

, 

 (2016)
(“Nothing in the text of ORS 137.540(6) requires the trial
court to determine that a person willfully violated probation before revoking probation.”). Nonetheless, he argues
that the court’s decision was based on an explicit finding of
willfulness that is not supported by sufficient evidence in
the record. Defendant did not preserve that contention, and,
in light of Gray, has not persuaded us that the trial court
plainly committed reversible error that we should exercise
our discretion to correct.
         In his second assignment, defendant argues that
the trial court erred by imposing two revocation sanctions
consecutively based on a finding of a single probation violation. See State v. Stokes, 

, 

(1995) (explaining that, under OAR 213-012-0040(2)(a), the
trial court must impose revocation sanctions concurrently
when it finds only one violation). Defendant acknowledges
that he did not raise that issue below, but he argues that the
error is plain in light of Stokes.
         The state offers two responses. For one, the state
argues that Stokes was wrongly decided. We recently
rejected the same argument in a case that is now on review
in the Supreme Court. See State v. Rusen, 

, 

 (2020), rev allowed, 

 (2021)
(“[W]e are not persuaded by the state’s contention that
Stokes was wrongly decided.”). We adhere to our conclusion
in Rusen, pending the Supreme Court’s decision in that case.
        Alternatively, the state argues that defendant overlooks the Supreme Court’s decision in State v. Lane, 

     This consolidated appeal also involves Case No. 18CR52852, but defendant
advances no assignments of error related to that case.
168                                           State v. Wilson

619, 638-39, 

 (2015), which held that Article I,
section 44(1)(b), of the Oregon Constitution “forecloses any
other law from limiting a court’s authority to impose [consecutive] sentencing where there are multiple victims.”
(Emphasis in original.) According to the state, the revocation
sanctions in this case were imposed on counts of burglary
and attempted burglary that involved two completely different dwellings. Defendant pleaded guilty to the charges and
the record does not identify the crime victims, but the most
plausible inference, according to the state, is that crimes
directed at different dwellings involved different victims.
         We agree with the state that, in light of Lane and
the plausibility of the inference that the underlying charges
involved separate victims, defendant has not demonstrated
that the trial court plainly erred by imposing separate revocation sanctions for a single violation.
        Affirmed.