280
Argued and submitted August 17, 2020, reversed and remanded
September 9, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
LESLIE BROOKS KINDRED,
Defendant-Appellant.
Multnomah County Circuit Court
030934474; A170472
499 P3d 835
Fourteen years after defendant was convicted of coercion, ORS 163.275,
defendant moved to set aside that conviction under ORS 137.225. The trial court
denied the motion because defendant had outstanding fines and fees in unrelated
cases. On appeal, defendant assigns error to that denial, arguing that the outstanding fines and fees did not provide a proper basis for the denial under the
Supreme Court’s decision in State v. Langan, 301 Or 1,
718 P2d 719 (1986). The
state responds that, even if the trial court’s denial was on an improper basis,
the Court of Appeals should alternatively affirm based on defendant having two
violations on his record within the 10 years preceding his motion. Held: The trial
court erred in denying defendant’s motion based on his unpaid fines in unrelated
cases, because defendant’s conduct in not paying the fines was not “contrary to
public law,” as required under Langan to support such a denial.
301 Or at 9-10.
Defendant’s two violations did not preclude granting his motion, because those
violations were vacated and dismissed prior to the trial court hearing on defendant’s motion.
Reversed and remanded.
Eric L. Dahlin, Judge.
Nicole S. Thompson argued the cause for appellant. Also
on the briefs was Metropolitan Public Defender.
E. Nani Apo, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded.
Cite as 314 Or App 280 (2021) 281
LAGESEN, P. J.
Fourteen years after defendant was convicted of
coercion, ORS 163.275, defendant moved to set aside that
conviction under ORS 137.225. The trial court denied the
motion because defendant had outstanding fines and fees
in unrelated cases. On appeal, defendant assigns error to
that denial, arguing that the outstanding fines did not provide a proper basis for the denial under the Supreme Court’s
decision in State v. Langan, 301 Or 1,
718 P2d 719 (1986).
The state responds that, even if the court’s denial was on an
improper basis, this court should alternatively affirm based
on defendant having two violations on his record within the
10 years preceding his motion. We agree with defendant that
the trial court denied defendant’s motion on an improper
basis under Langan. We also conclude that defendant’s violations do not count against him as convictions for purposes
of the statute because they were vacated and dismissed
before the hearing. We therefore reverse and remand.
FACTS
In March 2004, defendant was convicted of coercion, a Class C felony. In May 2018, he moved to set aside
that conviction. The state opposed the motion because defendant had not paid all of his court-ordered fines and fees in
other cases unrelated to the motion, and also because defendant had been convicted of two violations for failing to pay
TriMet fare within the 10-year period preceding the filing
of the motion. Before the hearing on the motion, defendant’s
fare violations were vacated by the trial court and the cases
dismissed after defendant performed community service.
At the hearing, the trial court explained at the outset that it was “not inclined to grant the motions to set aside
… because of the outstanding fines.” The court considered
evidence that defendant had already gotten many of his
fines reduced or waived by performing community service
and remarked that, as the court understood it, defendant
could take care of additional outstanding fines by completing more community service. It reasoned:
“[S]o the way I look at this is that not paying fines and fees
that are ordered to be paid when the person has the ability
282 State v. Kindred
to pay, it shows—shows I guess maybe disrespect for the
court. Or not contempt of court in the legal sense of contempt, but saying, I—I have these obligations. I’m just—
I’m not taking it seriously enough. I’m not going to pay it.”
Defendant argued that the trial court’s reasoning
was contrary to the Supreme Court’s holding in Langan.
Rejecting that argument, the court reasoned:
“I—I think that the—a conviction that imposes fines and
fees is something that is a—result of [il]legal behavior as
opposed to just society saying, well, this is bad or—in a civil
context saying there’s a breach of contract.
“So, for example, if—if the State objected to [defendant]
setting aside his conviction by saying, Look, he got sued by
somebody for breach of contract, and he lost that case, that
would not be sufficient, and that’s the—that’s the civil side
of this.
“But the—the disqualifying behavior to be—if it’s
related to criminal conduct, and it’s a consequence of the
criminal conduct, I think that that is something that the
Court can take into account.”
The court thus denied the motion:
“The written findings is that under the facts and circumstances are that as a result of criminal convictions, [defendant] owes money that hasn’t been paid. That there is the
option for paying those amounts through community service, even if he can’t come up with the money out of his
pocket. And, therefore, that shows a certain lack of respect
for the court system and not taking care of his obligations
that are resulting from criminal convictions even though
they’re not the convictions that he’s trying to set aside in
this case.”
The court’s written order denying defendant’s motion
attributed the denial to defendant’s “circumstances and
behavior since the date of conviction.”
As for defendant’s two vacated fare violations, the
trial court clarified that it would not have found that those
circumstances prohibited defendant from having his convictions set aside. But the court admitted that it did not
know whether defendant’s two dismissed violations would,
under ORS 137.225(7)(b), have precluded as a matter of
Cite as 314 Or App 280 (2021) 283
law the court from granting defendant’s motion to set
aside.
Defendant appeals. He contends that nonpayment
of fines and fees in cases unrelated to those that a motion
seeks to set aside does not provide a basis under ORS
137.225(3) for a denial of such a motion. Specifically, defendant argues that nonpayment of fines does not constitute
the type of “circumstances and behavior” that can support a
denial because nonpayment of fines is not “contrary to public
law” as contemplated by the legislature and the Supreme
Court in Langan.
The state responds that Langan only informs what
behavior can and cannot supply a basis for a discretionary
denial of a motion to set aside, and that, in this case, the
court had the authority to deny defendant’s motion based on
the circumstances of defendant’s unpaid fines. Alternatively,
the state contends that defendant’s two fare violation convictions occurred within the previous 10 years, requiring
denial of defendant’s motion under ORS 137.225(7)(b).
Defendant replies that those violations do not bar
granting his motion because those convictions were vacated
and dismissed prior to the hearing, and that the state’s
remaining argument conflicts with Langan.
ANALYSIS
Our main inquiry is whether nonpayment of fines
in cases unrelated to a motion to set aside a conviction constitutes the type of “circumstances and behavior” that can
supply a basis for a denial of a motion under ORS 137.225(3).
We review for legal error a trial court’s determination of
whether a movant is entitled to have his or her conviction set
aside under ORS 137.225. See Langan, 301 Or at 10. “The
proper meaning and application of ORS 137.225 is a matter
of statutory interpretation.” State v. Branam,
220 Or App
255, 258,
185 P3d 557, rev den,
345 Or 301 (2008).
ORS 137.225 outlines the rules and procedures for
defendants seeking to have their past criminal convictions
set aside. In general, a defendant “who has fully complied
with and performed the sentence of the court” for his or
her conviction may apply to set it aside once a three-year
284 State v. Kindred
period of time after judgment has elapsed. ORS 137.225
(1)(a). Importantly for this case, ORS 137.225(3) provides, in
relevant part, “[I]f the court determines that the circumstances and behavior of the applicant from the date of conviction … to the date of the hearing on the motion warrant
setting aside the conviction, … the court shall enter an
appropriate order.” In other words, a court must make the
determination whether to grant or deny motions to set aside
based on the “circumstances and behavior of the applicant.”
Id.
In Langan, the Supreme Court addressed what “circumstances and behavior” could supply a basis for disqualifying applicants from having their convictions set aside.
There, the defendant moved to set aside his conviction for
promoting gambling. Langan, 301 Or at 3. The trial court
denied the motion, finding that defendant’s behavior of selling decks of cards to the patrons at his bar for a profit after
a police officer told him his practice was illegal was the sort
of behavior that allowed a court to decline to set aside a conviction: “[T]he defendant’s continuance of an activity after
being advised according to a police officer’s testimony that it
was an illegal activity, whether or not it was in fact illegal,
is sufficient circumstance and behavior pursuant to ORS
137.225(3) to deny defendant expungement.”
Id. at 4 (internal quotation marks omitted).
The Supreme Court reversed. After canvassing the
legislative history of ORS 137.225(3), the court determined
that the legislature did not intend for trial courts to have
discretionary latitude to determine what types of circumstances and behavior would preclude expunction: “[W]e
doubt that the legislature meant the phrase to describe
‘circumstances and behavior’ so loosely that two different
judges would have ‘discretion’ to take opposite actions on
identical facts.” Id. at 7-8. Instead, to be disqualifying, the
behavior must (a) violate the law and (b) reflect adversely on
the defendant’s character:
“We think that the statutory reference to the applicant’s
‘behavior’ means that the court is to examine whether the
applicant has behaved in conformity with or contrary to
public law. Disqualifying behavior must be some form of
legal, not merely social, impropriety, and an act incurring
Cite as 314 Or App 280 (2021) 285
ordinary, nonpunitive civil liability (for instance, a contract
dispute) is not disqualifying if it does not also contravene
some other law. … Noncriminal behavior that violates a
regulatory law or administrative rule enforced by a civil
penalty or other administrative sanction may disqualify an
applicant if the law relates to the character of the conviction that the applicant seeks to set aside.”
Id. at 9-10 (emphasis added). The court explained that, to
deny an otherwise eligible person’s motion to set aside based
on unlawful conduct, each element of the unlawful conduct
must be “established by a preponderance of the evidence at
the hearing on the applicant’s motion.” Id. at 10. Ultimately,
it concluded that “a finding that defendant did not do as he
was told is not sufficient to deny defendant’s motion,” and it
remanded to the circuit court. Id. at 10-11.
Since it was decided, we repeatedly have held that
Langan requires proof that a person did something “contrary to public law” for a court to deny a motion under ORS
137.225(3). See State v. Larson, 268 Or App 802, 809-10,
344 P3d 59 (2015) (“A trial court has authority to deny an
otherwise qualified person’s request to set aside a conviction only if it determines (1) that the person violated public
law [after the date of conviction] and (2) that the violation
warrants denying the person’s request.” (Internal quotation
marks omitted; emphasis added.)); Patterson v. Foote,
226 Or
App 104, 111,
204 P3d 97 (2009) (rejecting the notion that a
court has “ ‘discretion’ ” to set aside a conviction under ORS
137.225(3) and holding that, “if a defendant meets his or her
burden to show that he or she had not engaged in any disqualifying behavior, the trial court ‘shall’ enter the order”
(quoting Langan,
301 Or at 7-8)); State v. Bomar,
79 Or App
451, 455,
719 P2d 76 (1986) (“[A] trial court must find that,
since conviction, defendant’s behavior was in some respect
‘contrary to public law’ for it to deny a motion to set aside a
conviction.” (Quoting Langan,
301 Or at 9.)). Not once have
we concluded that conduct that, in and of itself, does not violate public law allows for the denial of a motion.
On appeal, the state acknowledges that defendant’s
behavior was not disqualifying under Langan because defendant’s outstanding fines were not “contrary to public law,” 301
Or at 9. Instead, the state contends that Langan articulates a
286 State v. Kindred
standard for disqualifying behavior only, which left the trial
court free to deny defendant’s motion based on his circumstances, including his nonpayment of outstanding fines.
We are skeptical that Langan applies only to behavior. But, as explained below, that is largely beside the point
on these facts because the trial court here based its denial on
defendant’s behavior. From the outset, the court explained
that it was inclined to deny defendant’s motion because, in
its view, defendant was disrespectful for not having paid off
all of his fines, and that showed that defendant was not taking his obligations seriously enough. The court explained:
“[T]he way I look at this is that not paying fines and fees
that are ordered to be paid when the person has the ability
to pay, it shows—shows I guess maybe disrespect for the
court. Or not contempt of court in the legal sense of contempt, but saying, I—I have these obligations. I’m just—
I’m not taking it seriously enough. I’m not going to pay it.”
Later in the hearing, the court characterized the conduct
on which it would deny defendant’s motion as “disqualifying behavior,” reasoning that “the disqualifying behavior to
be—if it’s related to criminal conduct, and it’s a consequence
of the criminal conduct, I think that that is something that
the Court can take into account.” In its conclusion, although
the court used the phrase, “under the facts and circumstances,” the court again focused on defendant’s behavior in
explaining its basis for denial of the motion:
“The written findings is that under the facts and circumstances are that as a result of criminal convictions, [defendant] owes money that hasn’t been paid. That there is the
option for paying those amounts through community service, even if he can’t come up with the money out of his
pocket. And, therefore, that shows a certain lack of respect
for the court system and not taking care of his obligations that
are resulting from criminal convictions even though they’re
not the convictions that he’s trying to set aside in this case.”
(Emphasis added.) That conclusion, taken in the context of
the court’s assertions at other points in the hearing that the
circumstance of having unpaid fines would not have been
a bar to granting the motion if defendant had no means
of paying them or working them off through community
Cite as 314 Or App 280 (2021) 287
service,1 demonstrates that the court based its decision on
defendant’s behavior, or “lack of respect for the court system
and not taking care of his obligations,” rather than defendant’s circumstances of having unpaid court fines.
But even if the state is correct that circumstances
and behavior have distinct meanings under ORS 137.225(3),
and even if the trial court’s ruling could be regarded as
relying on circumstances in addition to behavior, the ruling
nonetheless conflicts with Langan on these facts. To hold
that defendant’s conduct, if deemed circumstances rather
than behavior, would allow for the denial of his motion
where Langan would not would undercut the holding of
Langan, and give rise to the very problem that caused the
Langan court to adopt the interpretation that it did: “[W]e
doubt that the legislature meant the phrase to describe
‘circumstances and behavior’ so loosely that two different
judges would have ‘discretion’ to take opposite actions on
identical facts.” 301 Or at 8. Simply put, we do not understand Langan to allow a trial court to avoid the Supreme
Court’s core holding by deeming certain facts to be circumstances rather than behavior—especially where, as here,
the factual basis for the court’s denial of a motion focused on
the movant’s conduct and the implications of that conduct,
something ordinarily viewed as behavior.
We turn to the state’s alternative argument for
affirmance. It asserts that we should affirm based on defendant’s fare violation convictions that, the state contends,
categorically preclude the grant of the motion to set aside.
See Fenimore v. Blachly-Lane County C.E.A., 297 Or App 47,
59,
441 P3d 699 (2019) (outlining standard for discretionary
affirmance on alternative basis). Defendant responds that
those convictions do not preclude a court from granting his
motion to set aside, because they were vacated. We agree
with defendant.
1
For example, at one point in the hearing, defendant’s counsel argued and
the court responded:
“[B]eing poor is not a crime. It’s not a wrong. And it’s not an act.
“THE COURT: And that’s why—that’s why I said that the availability of
having the Rosewood Legal Initiative process to set aside the fines, to work
that off, makes this a different situation. I understand—I understand that
[defendant] may not have, you know, any spare money sitting around.”
288 State v. Kindred
Our task is to determine whether convictions occurring within the relevant time period categorically disqualify
the defendant from having a motion to set aside granted if
those convictions are vacated before the trial court rules on
the motion. That is a question of statutory interpretation; a
question of law to be decided by reviewing the text, context,
and legislative history of the statute. Langan, 301 Or at 10;
State v. Gaines,
346 Or 160, 171-72,
206 P3d 1042 (2009).
We begin with the text. ORS 137.225(7) outlines
what types of criminal history disqualify defendants from
setting aside their convictions under ORS 137.225(1):
“Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
“…
“(b) A person convicted, within the 10-year period
immediately preceding the filing of the motion pursuant to
subsection (1) of this section, of any other offense, excluding
motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest, citation, charge or conviction
that is sought to be set aside. A single violation, other than
a motor vehicle violation, within the last 10 years is not a
conviction under this subsection. Notwithstanding subsection (1) of this section, a conviction that has been set aside
under this section shall be considered for the purpose of
determining whether this paragraph is applicable.”
The text of the statute does not explicitly resolve
the question but suggests that a vacated conviction would
not count, for two reasons.
First, the text does not affirmatively state that a
vacated conviction would count, something that we would
expect if that had been the legislature’s intention. That is
because, as the Supreme Court recently explained, the effect
of vacating a conviction is to nullify it. In State v. Phillips,
367 Or 594, 603-04,
482 P3d 52 (2021), the court addressed
whether a vacated conviction was excluded under OEC
609(3)(b) from coming into evidence, explaining that a conviction, once vacated, was “rendered nugatory.” That is, the
act of vacating a conviction “render[s] the prior conviction no
longer enforceable and no longer a valid conviction.”
Id. at
Cite as
314 Or App 280 (2021) 289
604 (citing Black’s Law Dictionary 1388 (5th ed 1979), “defining ‘vacate’ as ‘[t]o annul; to set aside; to cancel or rescind.
To render an act void; as, to vacate an entry of record, or a
judgment’ ” (brackets in Phillips)).
Second, the text of the statute does affirmatively
address convictions that have been set aside under ORS
137.225, explaining that convictions that have been set aside
under ORS 137.225 “shall be considered.” ORS 137.225(7)(b).
Had the legislature intended to count convictions that had
been vacated through post-trial motions or the appellate
process, or that had otherwise received similar treatment, it
likely would have said so explicitly, as it did with convictions
set aside under ORS 137.225. But it did not do so, and it is
not our role “to insert what has been omitted.” ORS 174.010;
Phillips, 367 Or at 601.
Nothing in the context points away from the conclusion suggested by the text. The legislative history does
not address the point, but it also does not point away from
the text’s indications that vacated convictions would not
count. The history shows that the legislature intended that
set aside convictions would preclude defendants from having their motions granted, but it did not explicitly discuss
whether other convictions that had been dismissed, vacated,
overturned on appeal, or set aside through post-conviction
relief would count. Because, as noted, a conviction that has
been vacated or overturned is not one that courts ordinarily
treat as a valid conviction, absent an explicit signal from the
legislature that it intended a different treatment for purposes of ORS 137.225, we conclude that vacated convictions
are not ones that categorically preclude the granting of a
set-aside motion under the terms of that statute.
In sum, under Langan, the trial court erred in relying on defendant’s failure to pay his fines in unrelated cases
as behavior allowing for the denial of his motion, and defendant’s vacated fare violations did not preclude granting his
motion to set aside his conviction. We therefore reverse and
remand for further proceedings consistent with this opinion.
Reversed and remanded.
