661
Argued and submitted January 19, affirmed September 22, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAELA ODENA SYLVA,
Defendant-Appellant.
Marion County Circuit Court
05C48355; A172225
500 P3d 49
Defendant appeals an order denying her motion to set aside a conviction
for first-degree criminal mistreatment, ORS 163.205. The trial court determined that under ORS 137.225(6)(b), defendant’s conviction was not eligible for
set aside, because it constituted “child abuse” as defined in ORS 419B.005. On
appeal, defendant contends that the trial court erred when it denied her motion,
because under ORS 137.225, the court was required to examine only the face of
the charging instrument, plea petition, and judgment of conviction, and nothing
in those documents shows her conviction constituted child abuse. Held: The Court
of Appeals concluded that ORS 137.225 authorizes a trial court to examine the
information it deems proper in determining whether a defendant’s conviction is
eligible for set aside under that statute. The court further concluded that the
information provided in defendant’s indictment, plea, and judgment of conviction
was insufficient to show that defendant’s first-degree criminal mistreatment conviction was eligible for set aside.
Affirmed.
Janet A. Klapstein, Judge pro tempore.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
Inge D. Wells, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Affirmed.
662 State v. Sylva
TOOKEY, J.
Defendant appeals an order denying her motion to
set aside her conviction for first-degree criminal mistreatment. The trial court denied defendant’s motion based on a
determination that defendant’s conviction was not eligible
for set aside under ORS 137.225(6)(b), which precludes setting aside a conviction for first-degree criminal mistreatment “when the offense constitutes child abuse as defined in
ORS 419B.005.”
On appeal, defendant contends that the trial court
erred when it denied her motion, because under ORS 137.225,
the trial court was required to examine only “the face of
the charging instrument, plea petition, and judgment,” and
“neither the charge, her plea petition, or the judgment indicated that [defendant’s] offense constituted ‘child abuse as
defined in ORS 419B.005.’ ”
We disagree with defendant’s contention, and we
conclude that, under ORS 137.225(6)(b), a trial court is
authorized to examine the information it deems proper in
order to determine whether a conviction is eligible for set
aside. We further conclude that the information relied upon
by defendant in the trial court is insufficient to meet her
burden of showing that her first-degree criminal mistreatment conviction is eligible for set aside. Accordingly, we
affirm.
“The proper meaning and application of ORS 137.225
is a matter of statutory interpretation,” and 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.” State v. Kindred, 314 Or App 280, 283,
499 P3d 835
(2021).
I. FACTS
The pertinent facts are undisputed. In 2005, defendant was indicted for, among other offenses, first-degree
criminal mistreatment, ORS 163.205. The indictment
alleged, in relevant part, that defendant, “having assumed
the care, custody, and responsibility for the supervision of
[AW], did unlawfully and knowingly withhold necessary and
adequate care from [AW].” Defendant subsequently entered
Cite as 314 Or App 661 (2021) 663
a guilty plea on that count, admitting that she “knowingly
withheld necessary and adequate care for [AW] after having assumed the care, custody, and responsibility for him.”
Subsequently, in 2006, the trial court entered a judgment
reflecting defendant’s conviction for first-degree criminal
mistreatment.
In June 2018, defendant filed a motion under ORS
137.225 to set aside her conviction for first-degree criminal
mistreatment. At a subsequent hearing, the state opposed
that motion, asserting that defendant’s conviction for first-degree criminal mistreatment “fit the definition of child
abuse” provided in ORS 419B.005(1)(a)(F) and was, therefore, “precluded from being set aside” under ORS 137.225
(6)(b).
Throughout that same hearing, the trial court
repeatedly invited defendant to make some additional offer
of proof to show “why this [conviction] is or is not subject to
expunction,”1 but defendant made no such offer.
Ultimately, the trial court denied the motion to set
aside, ruling that defendant’s conviction was not eligible for
set aside. In so ruling, the court explained, in part:
“The court has considered the submissions of both parties and denies the request for expunction of defendant’s
2006 conviction for Criminal Mistreatment I for the following reasons.
“[T]he applicable section of the expunction statute (ORS
137.225(6)(b)) precludes a court from setting aside a conviction for the offense of Criminal Mistreatment I under ORS
163.205 (2005), and expressly incorporates the definition
of child ‘abuse’ within ORS 419B.005(1)(a)(F). The latter
statute defines child ‘abuse’ as ‘including but not limited
to the failure to provide adequate food, clothing, shelter, or
1
We observe, as has the Supreme Court, that “[t]he word ‘expungement’ is
a misnomer,” because ORS 137.225 “does not call for expunging anything from
the record of conviction but for sealing the record.” State v. Langan, 301 Or 1,
4 n 3,
718 P2d 719 (1986) (emphases added); see also ORS 137.225(3) (providing
that, once a conviction is set aside, “the applicant for purposes of the law shall be
deemed not to have been previously convicted, or arrested, cited or charged as the
case may be, and the court shall issue an order sealing the record of conviction
and other official records in the case, including the records of arrest, citation or
charge whether or not the arrest, citation or charge resulted in a further criminal
proceeding”).
664 State v. Sylva
medical care’ to a child, in a manner ‘likely to endanger the
health or welfare’ of that child. ….
“In this case, the state alleged that the defendant withheld ‘necessary and adequate physical care’ of the child
and did so knowingly. The conduct alleged falls within the
prohibition.”
As noted above, defendant argues on appeal that
the trial court erred when it determined that her conviction was not eligible for set aside, because that determination required the trial court to examine only “the face of the
charging instrument, plea petition, and judgment,” and “the
indictment, plea, and judgment said nothing about ‘child
abuse as defined in ORS 419B.005.’ ” The state responds that
the court did not err, because “defendant admitted that she
knowingly ‘withheld necessary and adequate care’ from the
victim, [which] falls within the definition of child abuse in
ORS 419B.005(1)(a)(F),” and that “the trial court expressed
a willingness to consider evidence that defendant’s conduct
in ‘withholding necessary and adequate physical care’ did
not constitute child abuse … [but] Defendant did not offer
that evidence.”
II. ANALYSIS
Under ORS 137.225(1)(a), “any defendant who has
fully complied with and performed the sentence of the court
and whose conviction is described in subsection (5) of this
section” may apply by motion to have their conviction set
aside. Subsection (5) lists the general categories of convictions subject to set aside (e.g., Class B or C felonies, misdemeanors, violations of local ordinance). Subsection (6), however, lists several specific offenses that cannot be set aside,
including “[c]riminal mistreatment in the first degree under
ORS 163.205 … when the offense constitutes child abuse
as defined in ORS 419B.005.”
“A defendant is the movant in seeking to have his
conviction set aside under ORS 137.225, and it is his burden to show that he meets the criteria of that statute.” State
v. Langan, 301 Or 1, 5,
718 P2d 719 (1986) (“The applicant
has the burden to prove by a preponderance of the evidence
any disputed affirmative fact required by the statute.”).
That burden includes showing that “the crime for which
Cite as
314 Or App 661 (2021) 665
defendant was convicted is one which can be set aside under
the statute.” State v. Bomar,
79 Or App 451, 454-55,
719 P2d
76 (1986) (citing ORS 137.225 and State v. Green,
29 Or App
337, 339-40,
563 P2d 756 (1977)). Consequently, defendant
in this case had the burden to show that her conviction for
first-degree criminal mistreatment can be set aside under
ORS 137.225—i.e., that her conviction for first-degree criminal mistreatment did not constitute “child abuse as defined
in ORS 419B.005.”
Thus, this case raises two questions: First, what
information may a court examine in determining whether
a defendant’s conviction for first-degree criminal mistreatment constitutes child abuse and, thus, would be ineligible
for set aside under ORS 137.225(6)(b); and second, whether
the information relied upon by defendant was sufficient to
show that her conviction for first-degree criminal mistreatment was eligible for set aside.
A. What information may courts examine?
Regarding the first question, defendant’s position
is that courts may examine only the charging instrument,
plea agreement, and judgment of conviction. We disagree.
Instead, for the reasons explained below, we conclude that
ORS 137.225 authorizes a trial court to examine the information it deems proper in order to determine whether a
defendant’s conviction is eligible for set aside under that
statute.
To answer the first question in this case—i.e., what
information may a court examine in determining whether
a conviction is ineligible for set aside under ORS 137.225
(6)(b)—requires us to interpret that statute. In so doing, our
goal is to discern the meaning most likely intended by the
legislature, based on analysis of the statute’s text, context,
legislative history, and if necessary, relevant maxims of
statutory construction. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009).
The text of ORS 137.225(6)(b) does not really assist
us in answering the first question. That text provides, in
relevant part, that the rules authorizing courts to set aside
convictions “do not apply to a conviction for: … (b) Criminal
666 State v. Sylva
mistreatment in the first degree under ORS 163.205 if the
victim at the time of the crime was 65 years of age or older,
or when the offense constitutes child abuse as defined in
ORS 419B.005.”
More helpful, however, is the context of ORS
137.225(6)(b), which “includes other provisions of the same
statute.” PGE v. Bureau of Labor and Industries, 317 Or
606, 611,
859 P2d 1143 (1993). In particular, ORS 137.225(3)
provides, in part, “Upon hearing the motion [to set aside],
the court may require the filing of such affidavits and may
require the taking of such proofs as the court deems proper.”
(Emphasis added.). That context, though not conclusive,
evinces a legislative intent that courts may examine a range
of materials or information in determining whether a defendant’s conviction is eligible for set aside—viz., the information that the court “deems proper.”
That intent is further supported by the relevant legislative history. The legislature first enacted ORS 137.225
in 1971 as House Bill (HB) 1802. See Or Laws 1971, ch 434,
§ 2. The original draft version of HB 1802 was replaced with
a draft bill proposed by then-Multnomah County Circuit
Judge Richard Unis, which substantially formed the basis
for the enacted version of HB 1802. See Exhibit B, Senate
Committee on Criminal Law and Procedure, SB 362,
Mar 19, 1971 (bill proposed by Judge Unis); see also Langan,
301 Or at 7 (explaining the same).2 Judge Unis testified
before the legislative committees working on the subject that, under the procedure envisioned in the draft bill
regarding motions to set aside, “there should be a hearing,
and evidence should be required,” and “the court should be
permitted to require whatever information and filing of affidavits, and require the taking of proofs, as it deems proper”
in determining whether to set aside a conviction. Testimony,
Senate Committee on Criminal Law and Procedure, SB 362,
Mar 19, 1971 (statement of Judge Richard Unis) (emphasis
2
The 1971 legislature had before it two separate bills relating to the set
aside of a criminal conviction—SB 362 (1971) and HB 1802 (1971). The former bill
was tabled, and the latter bill was substituted with a version of the bill proposed
by Judge Unis. See Minutes, House Committee on the Judiciary, Apr 2, 1971, 2;
see also State v. Branam, 220 Or App 255, 262-63,
185 P3d 557, rev den,
345 Or
301 (2008) (explaining bill histories).
Cite as
314 Or App 661 (2021) 667
added). He further explained that the bill would authorize
courts to consider “any information furnished to [it] by the
state” and to “require the filing of affidavits and require the
taking of such proofs as deemed proper[, which] gets into
the area of discretion—again, why we feel there should be
discretion.” Testimony, House Committee on Judiciary, HB
1802, Mar 23, 1971 (statement of Judge Richard Unis). That
history is consistent with a legislative intent to allow a court
broad discretion in requiring and examining the information the court deems proper in order to determine whether
a defendant’s conviction is eligible for set aside under ORS
137.225.
To the extent that the legislature’s intent remains
unclear, two related maxims of construction are helpful:
First, “we are to construe the language of a statute in a
manner that is consistent with its purpose; in conducting
that inquiry, we are guided by what the legislature or the
courts have identified as the broader purpose of the statute”; and second, “we attempt to discern what the legislature would have intended had it considered the particular
problem presented.” State v. Branam, 220 Or App 255, 263,
185 P3d 557, rev den,
345 Or 301 (2008).
Applying those two maxims of construction in this
case, as this court previously noted in State v. Burke, 109 Or
App 7,
818 P2d 511, rev den,
312 Or 589 (1992), the provisions
now codified at ORS 137.225(6)(b) were originally inserted
by the 1989 legislature in order “to exempt convictions for
various crimes involving children” from being eligible for set
aside.
109 Or App at 9 (citing Or Laws 1989, ch 774, § 1). In
a concurring opinion, Judge Edmonds clarified that those
exemptions were proposed in a bill sponsored by the Oregon
Department of Justice (ODOJ), and he quoted the testimony
of an ODOJ representative who explained the bill’s purpose:
“The purpose of the bill is to guarantee that a criminal record of child abuse will be available to programs or
individuals responsible for caring for children. Presently,
a juvenile or adult convicted of sexual molestation or criminally mistreating a two-year-old, could have his record
expunged. There would be no record of a conviction for such
a crime. If that individual later applied to be a day care
provider, foster parent, Fairview aide, nursing attendant,
668 State v. Sylva
teacher’s aide, Boy Scout leader, or YMCA counselor, there
would be no available record showing that he had been
convicted of a child abuse offense. The program would not
be aware that a conviction for sexual molestation or criminal mistreatment had occurred. That individual could be
employed or licensed to care for young children.”
Burke, 109 Or App at 16-17 (Edmonds, J., concurring) (quoting
Exhibit 5, Senate Committee on Judiciary, SB 404, Apr 24,
1989, 1 (testimony of Deborah Wilson, Assistant Attorney
General in charge of the Family Enforcement Section)).
In light of that purpose, we conclude that, had the
legislature considered the specific question at issue—i.e.,
whether courts are limited to examining only charging
instruments, plea agreements, and judgments of conviction in determining whether a conviction is eligible for set
aside—it would have indicated that courts may examine the
information they deem proper in order to make that eligibility determination; that is, for the purpose of determining whether a defendant’s conviction is eligible for set aside
under ORS 137.225(6)(b), the legislature would not have
intended courts to limit their examination to only charging
instruments, pleas, or judgments of conviction. To conclude
otherwise would be contrary to the legislature’s broader purpose, noted above, of guaranteeing that relevant records are
available. And thus, we conclude that the text, context, legislative history, and maxims of construction relevant to ORS
137.225(6)(b) show a legislative intent to authorize courts
to examine the information they deem proper—not just
charging instruments, pleas, or judgments of conviction—
in order to determine whether a conviction is eligible for set
aside.
Having answered the first question, we now turn
to addressing the second question: whether the information
relied upon by defendant was sufficient to meet her burden
of showing that her conviction for first-degree criminal mistreatment was eligible for set aside.
B. Did defendant meet her burden?
Regarding the second question, defendant’s position
is that she met her burden, “because the indictment, plea
petition, and judgment said nothing about ‘child abuse as
Cite as 314 Or App 661 (2021) 669
defined in ORS 419B.005.’ ” We disagree. Instead, we conclude that the information provided in defendant’s indictment, plea, and judgment of conviction is insufficient to
show that defendant’s first-degree criminal mistreatment
conviction was eligible for set aside.
As explained above, defendant had the burden to
show that her conviction for first-degree criminal mistreatment was eligible for set aside under ORS 137.225—i.e., that
her conviction for first-degree criminal mistreatment under
ORS 163.205 did not constitute “child abuse as defined in
ORS 419B.005.”
Under ORS 419B.005(1)(a), “child abuse” means,
among other acts:
“(F) Negligent treatment or maltreatment of a child,
including but not limited to the failure to provide adequate
food, clothing, shelter or medical care that is likely to endanger the health or welfare of the child.”
(Emphasis added.)
Meanwhile, under ORS 163.205(1), a person commits the crime of criminal mistreatment in the first degree
if:
“(a) The person, … having assumed the permanent or
temporary care, custody or responsibility for the supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical
attention from that other person ….”
(Emphases added.) We have previously explained that, “for
the purposes of ORS 163.205, a person withholds necessary
and adequate physical care when the person withholds care
that is absolutely required to meet a dependent’s basic safety
and survival needs.” State v. Drown, 245 Or App 447, 464,
263 P3d 1057, rev den,
351 Or 401 (2011) (emphasis added).
Here, to show that her conviction for first-degree
criminal mistreatment did not constitute child abuse as
defined in ORS 419B.005, defendant relied upon the information in the indictment, plea agreement, and judgment
of conviction for that offense. The indictment alleged, in
relevant part, that defendant, “having assumed the care,
670 State v. Sylva
custody, and responsibility for the supervision of [AW], did
unlawfully and knowingly withhold necessary and adequate care from [AW].” Likewise, defendant admitted in her
plea agreement that she “knowingly withheld necessary
and adequate care for [AW] after having assumed the care,
custody, and responsibility for him.”
Although those documents do not explicitly recite
that defendant’s “offense constitutes child abuse as defined
in ORS 419B.005,” we think that the information contained
therein is nevertheless insufficient to show that her conviction for first-degree criminal mistreatment was, in fact,
eligible for set aside under ORS 137.225. Nothing in those
documents shows, for example, that defendant’s crime did
not involve a minor dependent and, thus, categorically could
not constitute child abuse. And though defendant could have
offered—as the trial court repeatedly invited her to do—
some additional information to show “why this [conviction] is
or is not subject to expunction,” defendant chose not to do so.3
Moreover, some of the information defendant relied on in the
trial court undermines her contention that her first-degree
criminal mistreatment conviction was eligible for set aside.
Specifically, defendant’s plea admitted that she “knowingly
withheld necessary and adequate care for [AW] after having
assumed the care, custody, and responsibility for him.” The
significance of that admission is particularly evident when
comparing this court’s explication of the phrase “withholds
necessary and adequate … physical care” in ORS 163.205
(i.e., withholding “care that is absolutely required to meet
a dependent’s basic safety and survival needs”) to the relevant definition of “child abuse” in ORS 419B.005(1)(a)(F)
(i.e., “failure to provide adequate food, clothing, shelter or
medical care that is likely to endanger the health or welfare
3
Neither defendant’s indictment, plea, nor judgment of conviction state the
age of the victim, and, on appeal, defendant suggests that the victim may not
have been a minor child. (Though, at oral argument, defendant acknowledged
that she did not argue to the trial court that the child was not a minor child.) It
is the absence of information concerning the victim’s age in the indictment, plea,
and judgment (as well as the rest of the record) that is the difficulty facing defendant in this case: Absent evidence of the victim’s age, defendant cannot show that
her conviction did not involve a minor child and, therefore, categorically could not
“constitute[ ] child abuse as defined in ORS 419B.005” and, thus, is one that is
eligible for set aside under ORS 137.225. Further, absent evidence of the victim’s
age, we cannot credit a suggestion that the victim was not a minor child.
Cite as 314 Or App 661 (2021) 671
of the child”): We think it follows, as a matter of logic, that
withholding care that is “absolutely required” for a child’s
“basic safety and survival needs,” Drown,
245 Or App at 464
(emphases added), amounts to a failure to provide care that
is “likely to endanger the health or welfare of the child,” ORS
419B.005(1)(a)(F) (emphasis added); put simply, withholding
care that is absolutely required for a child’s basic survival
necessarily means likely endangering that child’s health or
welfare.
In light of the foregoing, we conclude that defendant
did not satisfy her burden to show that her conviction was
eligible for set aside; therefore, the trial court did not err in
denying her motion.
III. CONCLUSION
Defendant had the burden to show that her conviction was eligible for set aside. To determine whether a conviction is eligible for set aside, courts may examine the information they deem proper. Here, defendant relied exclusively
on her indictment, plea, and judgment of conviction, but the
information in those documents is insufficient to show that
her conviction is eligible for set aside. We therefore conclude
that the trial court did not err in denying defendant’s motion
to set aside her conviction; accordingly, we affirm.
Affirmed.
