803
Argued and submitted July 29, affirmed September 21,2022.
STATE OF OREGON,
Plaintiff-Respondent,
v.
MELISSA MICHELE HAMILTON,
Defendant-Appellant.
Clackamas County Circuit Court
18CR33964; A173967
518 P3d 618
Pursuant to a plea agreement, defendant pleaded guilty and was convicted
of five theft offenses, and she was sentenced to 60 months’ probation. As a condition of her probation, defendant was required to “enter and complete drug court.”
After defendant repeatedly violated drug-court program rules, the court terminated her participation in the drug-court program and revoked her probation.
On appeal, defendant argues that the court plainly erred by revoking her probation for violating a drug-court program rule, because drug-court program rules
are not probation conditions, and courts only have authority to revoke probation
for probation violations. In the alternative, defendant contends that the trial
court abused its discretion by revoking her probation under the circumstances.
Held: On plain-error review, the record allowed for competing inferences—one
of which was that the court revoked defendant’s probation for violating the probation condition that she “enter and complete drug court,” which the court had
authority to do—so any error with respect to the court’s authority to revoke probation was not plain. The trial court also did not abuse its discretion by revoking
under the circumstances.
Affirmed.
Ann M. Lininger, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Connor Barnes, Certified Law Student, argued the cause
for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Shannon T. Reel, Assistant Attorney General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Armstrong, Senior Judge.
804 State v. Hamilton
AOYAGI, P. J.
Affirmed.
Cite as 321 Or App 803 (2022) 805
AOYAGI, P. J.
Pursuant to a plea agreement, defendant was convicted of five theft offenses and sentenced to 60 months’
probation. As a condition of probation, she was ordered to
“enter and complete drug court,” i.e., the Clackamas County
Drug Treatment Court Program. After 15 months, during
which defendant repeatedly violated drug-court program
rules, the court terminated defendant’s participation in the
drug-court program and revoked her probation. On appeal,
defendant assigns error to the revocation of her probation.
She argues that the court plainly erred by revoking her probation “for violating a drug-court program rule,” because
drug-court program rules are not probation conditions. In
the alternative, she argues that the court abused its discretion by revoking her probation when she “technically
violated a drug-court program rule but remained sober and
law-abiding.” We affirm.
FACTS
In November 2018, as part of a global resolution
of over a dozen outstanding criminal charges, defendant
pleaded guilty to and was convicted of one count of first-degree aggravated theft and four counts of first-degree theft.
She petitioned to enter into the court’s drug-court program.
The court accepted defendant’s guilty pleas, convicted her,
sentenced her to 60 months’ probation, and imposed a condition of probation that defendant “enter and complete drug
court.” That condition is reflected in the sentencing judgment, which imposes a probation condition that defendant
“[o]bey all … court orders” and orders defendant to “enter
and complete drug court.”
Defendant entered the drug-court program in
December 2018. To enter the program, she signed a petition
containing various waivers and commitments, including
that she would “complete the treatment program to the satisfaction of the Court.” Between December 2018 and March
2020, defendant admitted to 11 violations of drug-court program rules, including, inter alia, missing urinalysis appointments, arriving late to drug-court appearances, missing
individual or group treatment sessions, and failing to complete treatment assignments. Defendant was sanctioned for
806 State v. Hamilton
most of the violations, but she remained in the drug-court
program.
On March 30, 2020, at a drug-court appearance,
the state informed the court that defendant had missed an
appointment on March 20 with her individual treatment
provider, Troccoli, and was out of contact with Troccoli and
the treatment team from March 20 to March 27. Defendant
denied the allegations. The court set a contested hearing for
April 6 of the following week.
When the April 6 hearing began, the court described
it as a “contested probation violation” hearing. Troccoli testified as follows. As part of her participation in the drug-court program, defendant was required to have a working and accurate phone number and to remain in weekly
contact with Troccoli. It was against program rules for
defendant to substitute contact with other treatment team
members in lieu of contacting her individual provider. On
March 20, defendant had a phone appointment scheduled
with Troccoli, which had been confirmed twice, that defendant missed. Defendant had Troccoli’s phone number and
email address but never contacted her directly. Instead,
defendant contacted another team member, Knox, hours
after her scheduled appointment, asking him to give her new
phone number to Troccoli. (Knox testified that he agreed to
do so and did so, but that it was defendant’s responsibility
to contact her treatment provider.) On March 23 and 24,
Troccoli tried several times to reach defendant at her old
phone number but received a message that it was no longer in
use. On March 27, Troccoli and defendant finally connected
mid-day, approximately three hours after their scheduled
weekly appointment, when Troccoli learned of defendant’s
new phone number and reached her at that number.
Defendant also testified at the contested hearing.
She explained what had happened from her perspective.
At the conclusion of evidence, defense counsel argued
that, although there was “factual noncompliance,” the circumstances did not indicate a “willful violation in terms of
her probation.” The state countered that defendant had committed “a factual and a willful violation of probation” by failing to stay in contact with Troccoli. The court agreed with
Cite as 321 Or App 803 (2022) 807
the state, concluding that the state had proved by a preponderance of the evidence that defendant “was not making
a good faith effort to comply with the requirements of her
probation by having her one-on-one treatment sessions,” and
finding defendant “in both factual and willful violation of
her probation.”
The parties then addressed “disposition.” The state
asked that defendant “be revoked from the adult drug court
program,” based on her history of program violations (which
the state described), and that she be sentenced to 38 months
in prison per her prior stipulation. At that point, defendant
called an additional witness, who testified to defendant’s
positive progress with sobriety and with parenting her children since entering the drug-court program. Defense counsel then argued to the court that, given the nature of defendant’s violation (being out of phone contact with Troccoli for
a week), “it would be disproportionate to revoke her probation and send her to prison at this time.” Defense counsel
made a vigorous argument against terminating defendant
from the drug-court program and revoking her probation,
with particular emphasis on the COVID-19 pandemic, defendant’s progress in the drug-court program, defendant being
20 months’ sober and crime-free, and defendant having four
children in her care.
After hearing the evidence and arguments, the
court decided to terminate defendant from the drug-court
program and revoke her probation. It explained that,
although it was good that defendant had maintained sobriety “in some manner,” there had been an “extraordinary,
consistent succession of examples of failure to comply with
program requirements,” defendant had been given “far more
opportunities for do-overs” than other participants, and it
was “undermining the program itself.” The court therefore decided to terminate defendant from the drug-court
program, simultaneously revoked her probation, and sentenced her to 38 months in prison as stipulated in her plea
agreement.
Defendant appeals, assigning error to the revocation of her probation. As previously described, she makes
two alternative arguments, one pertaining to the court’s
808 State v. Hamilton
authority and the other to the court’s discretion. We address
each in turn.
THE COURT’S AUTHORITY TO
REVOKE PROBATION
Defendant argues that the trial court plainly
erred by revoking her probation “for violating a drug-court
program rule” (defendant’s words), because drug-court program rules are not probation conditions, and courts only
have authority to revoke probation for probation violations.
As defendant acknowledges, she did not raise that issue in
the trial court, so our review is limited to plain-error review.
“Generally, an issue not preserved in the trial court will not
be considered on appeal.” State v. Wyatt, 331 Or 335, 341,
15 P3d 22 (2000). However, we may consider a “plain error.”
ORAP 5.45(1). An error is “plain” when it is an error of law,
the legal point is obvious and not reasonably in dispute, and
the error is apparent on the record without our having to
choose among competing inferences. State v. Vanornum,
354
Or 614, 629,
317 P3d 889 (2013). Whether an error is “plain”
is an issue of law. State v. Gornick,
340 Or 160, 167,
130 P3d
780 (2006). If the trial court made a “plain error,” it is a matter of discretion whether we will correct it.
Id.
For purposes of this appeal, it is undisputed that
the trial court could revoke defendant’s probation only if she
violated a condition of her probation. See State v. Kelemen,
296 Or App 184, 192,
437 P3d 1225 (2019) (a trial court has
“discretionary authority to revoke probation” upon the “finding of a new crime or other violation of the conditions of probation”). There is no contention that defendant committed a
new crime or that she could be revoked on some basis other
than violating a probation condition.
It is also undisputed that compliance with drug-court
program rules was not a condition of defendant’s probation.
The only relevant probation condition was that defendant
“enter and complete drug court.” To the extent that defendant violated program rules, the court had wide latitude to
address such violations within the drug-court program by,
for example, cautioning her, sanctioning her, or terminating
her from the program. But, as long as defendant remained
Cite as 321 Or App 803 (2022) 809
in the drug-court program, any violations of program rules
were only that—violations of program rules—and could not
themselves be said to constitute probation violations.
A probation violation would occur, however, if defendant was terminated from the drug-court program. Upon
termination from the drug-court program, defendant would
be in obvious violation of her probation condition that she
“enter and complete drug court.” (Emphasis added.)
We emphasize that, in this case, defendant was
criminally convicted and sentenced to probation, and entering and completing the drug-court program was one condition of her probation. That is different from a nonconvicted
defendant entering drug court as a diversion program and
being put on diversionary probation. When drug court is
used as a diversion program, the defendant enters into a
“probation agreement.” ORS 137.532(1). If the defendant
fulfills the terms of the probation agreement, the criminal
charges are dismissed with prejudice. ORS 137.532(1)(b), (3).
If the defendant violates a term of the probation agreement,
the court may resume the criminal proceedings and may
rely on the waiver of rights in the probation agreement to
find the defendant guilty as charged. ORS 137.532(2).
When a defendant is convicted, sentenced to probation, and put into the drug-court program as a probation
condition—and then violates drug-court program rules—the
considerations relevant to deciding whether to terminate the
defendant from the drug-court program are not necessarily
identical to those relevant to deciding whether to revoke probation. A court deciding whether to terminate someone from
a drug-court program presumably will be most interested in
the person’s progress in the drug-court program, compliance
with program rules, and success in meeting program goals.
By contrast, a court deciding whether to revoke probation
and impose imprisonment may consider a broader range of
information, such as the person’s overall success on probation and overall compliance with general and special probation conditions (including but not limited to the drug-court
condition). See Barker v. Ireland, 238 Or 1, 4,
392 P2d 769
(1964) (“Probation is granted, withheld, or revoked in the
exercise of the judicial discretion of the trial judge, guided
810 State v. Hamilton
by a balancing of considerations of public safety and rehabilitation of persons convicted of crime.”). Thus, it is entirely
possible—at least in theory—that a court could decide to
terminate a defendant’s participation in the drug-court program, find the defendant in violation of a probation condition
for failing to complete the drug-court program, but exercise
its discretion to continue probation.
As should be apparent from our discussion so far, if
it were clear that the trial court in fact revoked defendant’s
probation simply for violating a drug-court program rule—as
defendant contends—we would agree that the court lacked
authority to do so, because complying with drug-court program rules was not a condition of defendant’s probation. The
difficulty for defendant is that her argument comes to us
in a plain-error posture, and we are unpersuaded that the
requirements for plain error are met.
One requirement for an error to be “plain” is that
it must be “apparent on the record without our having to
choose among competing inferences.” Vanornum, 354 Or at
629. Here, at the April 6 hearing, the state, defense counsel,
and the trial court all used the term “probation violation”
in an imprecise manner, to refer both to violation of a drug-court program rule and to violation of a probation condition.
Moreover, the state, defense counsel, and the trial court all
seem to have collectively understood that, if defendant was
terminated from the drug-court program, the trial court
would likely revoke her probation.
In that context, the trial court did not clearly delineate between its decision to terminate defendant from the
drug-court program (which it explained at some length) and
its decision to revoke defendant’s probation (which it did not
separately explain). However, we disagree with defendant
that the only conclusion to be drawn from this record is
that the court revoked defendant’s probation for violating
a drug-court program rule. Everyone’s imprecise use of the
term “probation violation” injected some ambiguity into the
situation and generally risked confusing issues, but, ultimately, one plausible reading of the record is that the court
revoked defendant’s probation because she had violated the
probation condition to “enter and complete drug court,” not
Cite as 321 Or App 803 (2022) 811
because she had violated a drug-court program rule. There
is no question that the court had authority to revoke probation for failure to complete the drug-court program, as
that was a probation condition.1 See Kelemen,
296 Or App
at 192 (recognizing the trial court’s “discretionary authority
to revoke probation” upon the finding of a “violation of the
conditions of probation”).
Because the record allows for competing inferences
as to the court’s basis for revoking defendant’s probation—
one of which was legally permissible—the alleged error is
not “apparent on the record without requiring the court to
choose among competing inferences” and therefore is not
“plain.” Vanornum, 354 Or at 629.
That largely resolves defendant’s argument that
the court lacked authority to revoke her probation on the
basis that it did. Defendant weaves a secondary procedural
argument into her primary substantive argument, however,
which we address briefly. Essentially, defendant argues that
she was given notice only of the state’s allegation that she
had violated a drug-court program rule (subjecting her to
the potential of a program sanction or termination from the
program), not of an alleged probation violation (subjecting
her to the potential of a probation sanction or probation
revocation), and that it was therefore improper for the court
1
We express no opinion as to whether a trial court could require as a condition of probation that a defendant enter and complete drug court and comply with
all drug-court program rules. Defendant argues that drug-court program rules
cannot be incorporated into probation conditions, by analogy to a line of cases
holding it erroneous to revoke a defendant’s probation for failure to comply with
a probation officer’s directive, such as a directive not to use alcohol. See, e.g, State
v. Hardges, 294 Or App 445,
432 P3d 268 (2018); State v. Rivera-Waddle,
279 Or
App 274,
379 P3d 820 (2016). That line of cases involves the general probation
condition in ORS 137.540(1)(m) that a probationer must “report as required and
abide by the direction of the supervising officer” (emphasis added), which we have
narrowly construed to apply only when a probation officer’s directive relates to
the reporting requirement. Hardges,
294 Or App at 452. Requiring compliance
with drug-court program rules would be different, because there is no statutory
probation condition to be construed. It also would be different because drug court
is a program run by the court, not a separate entity with “derivative” authority
like a probation officer. See Rivera-Waddle,
279 Or App at 279 (“[A] probation officer’s status with respect to his probationer is derivative. It cannot be greater than
that of the court which gave the probationer into his charge.” (Internal quotation
marks omitted.)). In any event, we need not resolve whether a court could impose
a probation condition to comply with drug-court program rules, because no such
condition was imposed here.
812 State v. Hamilton
to hold a probation violation hearing.2 See State v. Wibbens,
238 Or App 737, 741,
243 P3d 790 (2010) (“some due process protections” attach to probation violation proceedings,
including the right to a “fair and meaningful opportunity”
to refute or impeach the evidence).
Again, we reiterate that we are in a plain-error
posture. On this record, given the lack of any objection to
the procedure that the court followed, the description of the
hearing as a “probation violation” hearing, and the fulsome
opportunity that defendant was given and took to argue
against probation revocation, it is not “obvious” that defendant was in any way deprived of due process. Vanornum, 354
Or at 629 (for an error to be “plain,” the legal point must be
“obvious and not reasonably in dispute”). Moreover, nothing
in this record suggests that defendant suffered any detriment from the procedure that the court followed—in terms
of her ability to prepare for and present a meaningful argument against probation revocation—which would dissuade
us from exercising our discretion in any event. See Gornick,
340 Or at 167 (when a claim of error was not preserved in
the trial court, but the error is “plain,” we have authority
to correct it, but it is a matter of discretion whether we will
do so). We therefore also reject defendant’s procedural argument regarding the court’s authority to act as it did.
THE COURT’S EXERCISE OF DISCRETION
We next consider defendant’s alternative argument
that, even if the court had authority to revoke probation as it
did, the court abused its discretion by doing so in these particular circumstances. As she did in the trial court, defendant
2
Defendant’s procedural argument is directed more to the content of the
notice than its form, although she does point out that no show-cause order was
issued for the April 6 hearing. “ ‘Probation is a statutory process,’ ” State v.
Berglund, 311 Or App 424, 429,
491 P3d 820 (2021) (quoting State v. Ludwig,
218 Or 483, 492,
344 P2d 764 (1959)), and probation violation proceedings are
typically commenced “through a show cause order or a bench warrant.” State v.
Miller,
224 Or App 642, 645,
199 P3d 329 (2008); see also State v. Vanlieu,
251 Or
App 361, 367-68,
283 P3d 429 (2012) (construing ORS 137.545 to allow a court to
issue a show-cause order to commence a probation violation proceeding, without
issuing an arrest warrant). Here, the state’s allegation was raised in defendant’s
presence at a drug-court appearance, and a hearing was set for the next week.
Given the lack of objection to that process, and it not being directly challenged on
appeal, we express no view on the form of notice.
Cite as
321 Or App 803 (2022) 813
points to the COVID-19 pandemic, her sobriety, her lack of
new criminal activity, and her four children, to argue that
probation revocation and a resulting 38-month prison sentence was too harsh a consequence for a “minor” violation
of drug-court program rules. She contends that she should
not have been revoked from probation when she “technically
violated a drug-court program rule but remained sober and
law-abiding.”
For the reasons discussed in the last section, we
presume that the court revoked defendant’s probation for
failure to complete the drug-court program, not for violating
a drug-court program rule per se. The question, therefore, is
whether it was an abuse of discretion to revoke defendant’s
probation, in these circumstances, for violating the probation condition to “enter and complete drug court.” We cannot
say that it was. Certainly, the court had discretion to continue defendant’s probation, notwithstanding her probation
violation. But we cannot say that the only legally permissible outcome was to continue defendant’s probation. See State
v. Rodgers, 330 Or 282, 312,
4 P3d 1261 (2000) (describing
abuse-of-discretion standard).
No one asked the court to explain the reasoning
behind its discretionary decision to revoke defendant’s probation after terminating her from the drug-court program,
and the court did not expressly state its reasoning on the
record. However, under the circumstances, it is reasonable to
infer that the court viewed the completion of the drug-court
program as such a critical condition of defendant’s probation
that it was unwilling to continue probation once defendant
was terminated from that program. Such a determination
falls within the range of legally permissible outcomes and,
therefore, was not an abuse of discretion.
Affirmed.
