243
Submitted July 1; remanded for resentencing, otherwise affirmed
October 5, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEXANDER NILES COVELL,
Defendant-Appellant.
Clatsop County Circuit Court
20CR36542, 21CR01970;
A175869 (Control), A175870
519 P3d 173
Defendant was convicted of several crimes and sentenced to 60 months of
probation. On appeal, he challenges the sentencing court’s order that he would
not be eligible for earned reduction in the supervision period (also known as
“earned discharge”). Defendant argues that such an order is precluded by ORS
137.633, which provides that a person in defendant’s circumstances “is eligible”
for earned discharge for complying with the terms of probation. The state concedes the error. Held: The sentencing court erred by ordering that defendant
would be ineligible for earned discharge. When ORS 137.633 applies, the statute
itself dictates the terms of a defendant’s eligibility for earned discharge, and a
sentencing court may not preemptively deny eligibility when a defendant would
otherwise be eligible under the terms of the statute.
Remanded for resentencing; otherwise affirmed.
Beau V. Peterson, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
AOYAGI, J.
Remanded for resentencing; otherwise affirmed.
244 State v. Covell
AOYAGI, J.
Defendant was convicted of second-degree assault,
ORS 163.175, first-degree burglary, ORS 164.225, and two
counts of recklessly endangering another person, ORS
163.195, in two cases that have been consolidated for appeal.
He was sentenced to 60 months of probation on each conviction, running concurrently. On appeal, defendant challenges two aspects of his sentencing. First, as to each judgment, he contends that the sentencing court contravened
ORS 137.633 when it ordered that defendant would “[n]ot be
eligible for earned discharge.” The state concedes that the
court erred in that regard. As explained below, we agree
with the parties’ construction of ORS 137.633 and therefore remand for resentencing. Second, as to each judgment,
defendant challenges a special condition of probation that he
is not to enter into “any intimate relationship” without the
prior approval of his probation officer. Given the procedural
posture of this case, we do not reach that issue, but rather
leave it to the sentencing court to address on remand under
current case law. Accordingly, we remand for resentencing
in both cases.
EARNED DISCHARGE
The first issue before us is one of statutory construction, specifically whether a court sentencing a defendant to
probation is precluded from ordering that the defendant will
be ineligible for earned reduction in the supervision period
(also known as “earned discharge”) when ORS 137.633
applies. We review issues of statutory construction for legal
error. State v. Olive, 259 Or App 104, 107,
312 P3d 588 (2013).
We seek to ascertain the enacting legislature’s intent by
examining the disputed provision’s text and context, as well
as any helpful legislative history of which we are aware.
State v. Gaines,
346 Or 160, 171-73,
206 P3d 1042 (2009).
Text and context “must be given primary weight in the
analysis,” as only the text “receives the consideration and
approval of a majority of the members of the legislature,”
and “[t]he formal requirements of lawmaking produce the
best source from which to discern the legislature’s intent.”
Id. at 171.
Cite as
322 Or App 243 (2022) 245
ORS 137.633 addresses eligibility for earned discharge from probation. In this case, defendant was sentenced
under ORS 137.633 (2017), which has since been amended.
See Or Laws 2021, ch 450, § 1; Or Laws 2021, ch 581, § 5.
For purposes of our analysis, we construe the version of the
statute that was in effect at the time of defendant’s sentencing, i.e., the 2017 version, and all references herein are to
that version of ORS 137.633. However, because defendant
will be resentenced under the amended statute, which went
into effect on January 1, 2022, we note that we would reach
the same conclusion, as to the specific issue before us, under
the current version of the statute.1
ORS 137.633 (2017) provides, in relevant part:
“(1) A person convicted of a felony or a designated
drug-related misdemeanor and sentenced to probation or
to the legal and physical custody of the supervisory authority under ORS 137.124(2) is eligible for a reduction in the
period of probation or local control post-prison supervision
for complying with terms of probation or post-prison supervision, including the payment of restitution and participation in recidivism reduction programs.
“(2) The maximum reduction under this section may
not exceed 50 percent of the period of probation or local
control post-prison supervision imposed.
“(3) A reduction under this section may not be used to
shorten the period of probation or local control post-prison
supervision to less than six months.
“(4)(a) The Department of Corrections shall adopt
rules to carry out the provisions of this section.
“(b) The supervisory authority shall comply with the
rules adopted under this section.”
Defendant argues that, under ORS 137.633, a
person convicted of a felony (as he was) and sentenced to
1
The state implicitly asks us to address the current version of ORS 137.633.
Although our actual holding pertains to the 2017 version of the statute, we agree
with the state that the 2021 version of the statute would lead to the same conclusion. The 2021 amendments are not immaterial, so this is not a circumstance in
which we can simply construe the current statute with an acknowledgment that
immaterial changes have been made since defendant’s sentencing. Some of the
2021 amendments would be relevant to the analysis. However, the result would
be the same under either version of the statute.
246 State v. Covell
probation (as he was) is eligible for earned discharge from
probation as a matter of legislative policy and that the sentencing court lacked authority to override that legislative
policy and preemptively order him ineligible. In defendant’s
view, his eligibility for earned discharge depends solely on
whether he complies with the terms of probation, as provided in ORS 137.633(1), which is a determination for the
Department of Corrections (DOC), given its supervisory
authority over probationers under ORS 423.020(1)(g) as well
as its authority to promulgate rules for earned discharge
under ORS 137.633(4). Defendant made the same argument
at sentencing.
The state urged the sentencing court to deny defendant eligibility for earned discharge so as to ensure that he
serves the full 60 months of probation. On appeal, however,
the state has changed its position. The state now agrees
with defendant’s construction of ORS 137.633, and it concedes that the sentencing court erred by ordering defendant
ineligible for earned discharge.2 That concession is well
taken.
The text of ORS 137.633(1) is plain. The statute
applies to persons who are (1) convicted of a “felony or a designated drug-related misdemeanor,” and (2) sentenced “to
probation or to the legal and physical custody of the supervisory authority under ORS 137.124(2).” ORS 137.633(1);
see ORS 137.124(2) (providing that, when a defendant is
convicted of a felony and sentenced to 12 months or less of
incarceration, the court shall commit the defendant to the
legal and physical custody of the “supervisory authority of
the county in which the crime of conviction occurred” or, in
certain circumstances, to the legal and physical custody of
DOC). If those two conditions are met, the person “is eligible for a reduction in the period of probation or local control post-prison supervision for complying with terms of
2
It appears that the sentencing court did not necessarily disagree with
defendant’s construction of ORS 137.633 but may have viewed the statute as
improperly interfering with the court’s sentencing authority. The state does not
share that view. See generally State ex rel Huddleston v. Sawyer, 324 Or 597, 615,
932 P2d 1145, cert den,
522 US 994 (1997) (discussing the “inherent sentencing
power of the courts” in relation to the role of the legislature in setting periods of
imprisonment).
Cite as
322 Or App 243 (2022) 247
probation or post-prison supervision, including the payment
of restitution and participation in recidivism reduction programs.” ORS 137.633(1) (emphasis added).
ORS 137.633(1) does not allow room for a sentencing
court to preemptively deny eligibility for earned discharge
or otherwise change the terms of eligibility for earned
discharge.
ORS 137.633(4) bolsters the conclusion dictated by
the plain text of ORS 137.633(1). By giving DOC the authority to “adopt rules to carry out the provisions of this section,”
ORS 137.633(4), the legislature made even clearer that the
only open issue as to eligibility for earned discharge under
ORS 137.633(1) is whether the person complies with the
terms of probation, which is to be determined in accordance
with DOC’s rules.3 DOC has in fact promulgated such rules.
See OAR 291-209-0010 to 291-209-0070 (2017). Those rules
“describe the manner in which an offender sentenced to probation … may receive a reduction in the period of probation … in accordance with the provisions of ORS 137.633.”
OAR 291-209-0010(2) (2017); see also OAR 291-209-0020(6)
(2017) (defining an “[o]ffender” as “[a]ny person under the
supervision of local community corrections who is on probation, parole, or post-prison supervision status”). If the
supervising officer determines that the offender is in compliance with his or her probation conditions and any applicable supervision case plan, then the supervising officer “shall
recommend” and the supervisory authority “shall grant”
earned discharge to the offender. OAR 291-209-0040(1)(a) - (b)
(2017).
When the legislature intends for the sentencing
court to have a role in deciding a person’s eligibility for sentence reduction programs, it generally provides for that role
in express terms. For example, under ORS 137.750:
“(1) When a court sentences a defendant to a term of
incarceration upon conviction of a crime, the court shall
3
For present purposes, we limit our discussion to persons on probation.
However, as previously discussed, ORS 137.633(1) also applies to persons sentenced “to the legal and physical custody of the supervisory authority under ORS
137.124(2).” The DOC rules also address such persons. See OAR 291-209-0010 to
291-209-0070 (2017).
248 State v. Covell
order on the record in open court as part of the sentence
imposed that the defendant may be considered by the executing or releasing authority for any form of temporary
leave from custody, reduction in sentence, work release or
program of conditional or supervised release authorized
by law for which the defendant is otherwise eligible at the
time of sentencing, unless the court finds on the record in
open court substantial and compelling reasons to order
that the defendant not be considered for such leave, release
or program.
“(2) The executing or releasing authority may consider
the defendant for a program described in subsection (1) of
this section only upon order of the sentencing court appearing in the judgment.”
(Emphases added.) See also, e.g., ORS 137.751(1) (allowing a
defendant sentenced to more than one year of incarceration
to request an eligibility determination for release on post-prison supervision under ORS 421.508(4), and providing
that, if the court makes six specific findings after holding a
hearing, “[t]he court shall order in the judgment” that DOC
may release the defendant on post-prison supervision under
ORS 421.508(4)).
In sum, the text and context of ORS 137.633 make
clear that, when ORS 137.633 applies, the statute itself dictates the terms of a defendant’s eligibility for earned discharge. We agree with defendant and the state that the sentencing court contravened the terms of the statute when it
ordered as part of its sentencing judgment that defendant
would not be eligible for earned discharge. Under the terms
of the statute, he is eligible, specifically with respect to his
sentences for first-degree burglary (Case No. 20CR36542)
and second-degree assault (Case No. 21CR01970), which are
felonies. Accordingly, as both parties request, we remand for
resentencing.
INTIMATE-RELATIONSHIPS CONDITION
Defendant also challenges a special condition of
probation that he “[n]ot enter into any intimate relationship without the prior approval of [his] probation officer.”
He makes three separate arguments against the condition,
including that it is invalid under Penn v. Board of Parole,
Cite as 322 Or App 243 (2022) 249
365 Or 607,
451 P3d 589 (2019), and Tuckenberry v. Board
of Parole,
365 Or 640,
451 P3d 227 (2019), which involved a
similar post-prison supervision condition that was held to
be overbroad.
Defendant did not object to the intimate-relationships
condition during sentencing, so his claim of error is unpreserved. That necessarily limits our review to plain error.4
The state has suggested that it would be best to let the sentencing court decide the issue in the first instance—given
that we are already remanding for resentencing—and defendant has not opposed that suggestion. We also note that
while this appeal has been pending, a new decision issued
that follows Penn and Tuckenberry, but specifically involves
a probation condition, and which neither party has briefed.
See State v. Gaona-Mandujano, 314 Or App 654,
499 P3d
124 (2021) (holding a special probation condition regarding
intimate relationships to be overbroad). Under the circumstances, we are persuaded that the best course is to allow
the sentencing court to reconsider the intimate-relationships condition at resentencing, under current case law and
with the benefit of the parties’ arguments.
Remanded for resentencing; otherwise affirmed.
4
“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 have
discretion to 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.