384
Submitted June 21, affirmed October 19, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRANDON TAYLOR BECKNER,
Defendant-Appellant.
Linn County Circuit Court
16CR35023; A174905
520 P3d 906
In State v. Beckner, 303 Or App 744,
466 P3d 1000, rev den,
366 Or 826 (2020),
we reversed defendant’s felony conviction and remanded for entry of a conviction
and resentencing on a lesser-included offense. On remand, the trial court entered
an amended judgment of conviction for third-degree sexual abuse, a Class A misdemeanor, imposed 36 months of probation, and ordered “[i]mposition of sentence
is suspended.” On appeal of the amended judgment, defendant contends in his
first assignment of error that the court erred in imposing probation. Noting that
a court is authorized to impose probation only if it suspends the imposition or
execution of another part of a sentence, ORS 137.010(4), defendant argues that
ORS 137.370(3) prohibited the court from imposing additional jail at his resentencing because he had served a term of imprisonment on the original judgment
that exceeded the maximum statutory allowable term of 364 days for an A misdemeanor, ORS 161.615(1), and it therefore could not suspend the imposition of
additional jail. In defendant’s second assignment, he argues that the court plainly
erred in imposing the 36-month term of probation because, when calculated from
the date of his original sentencing imposing a nonprobationary sentence on the
felony conviction, it exceeds the five-year maximum term for misdemeanor probations, ORS 137.010(4). Held: First, even assuming without deciding that the
court was prohibited from imposing and suspending the imposition of additional
jail time, defendant has failed to establish that the court’s sentence of probation
was unlawful, where he fails to point to anything in the record or present any
argument explaining how that would have divested the court of its authority to
suspend the imposition of all other parts of a sentence. Second, defendant’s legal
argument challenging the probation term does not point to an error that is obvious and beyond reasonable dispute and therefore is not reviewable as plain error.
Affirmed.
Brendan J. Kane, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, 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.
Cite as 322 Or App 384 (2022) 385
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
386 State v. Beckner
ORTEGA, P. J.
Defendant was resentenced following our decision
in State v. Beckner, 303 Or App 744,
466 P3d 1000, rev den,
366 Or 826 (2020), in which we reversed his single count
conviction and remanded for entry of a conviction and resentencing on the lesser-included offense. Id. at 758. Defendant
now appeals the amended judgment, contending in two
assignments of error that the sentence of probation was
unlawful. Reviewing for legal error, State v. Capri,
248 Or
App 391, 394,
273 P3d 290 (2012), we affirm.
The pertinent facts are procedural and undisputed.
Defendant was convicted of felony first-degree sexual abuse
and sentenced to life in prison without the possibility of
parole. Beckner, 303 Or App at 748 & n 2. On appeal, we concluded that the state’s evidence was insufficient to prove an
element of the charge and that the trial court had erred in
denying defendant’s motion for judgment of acquittal.
Id. at
750-58. We reversed the conviction and remanded for entry
of conviction for the lesser-included offense of third-degree
sexual abuse and for resentencing.
Id. at 758. At defendant’s
resentencing on remand, the trial court entered an amended
judgment of conviction for third-degree sexual abuse, a
Class A misdemeanor (ORS 163.415), imposed 36 months of
probation and suspended imposition of sentence. At the time
of his resentencing, defendant had served more than 364
days of incarceration on the original judgment (in jail pretrial and in prison after his conviction).
In defendant’s first assignment, he contends that
the court exceeded its sentencing authority when it sentenced him to probation after he had served more than the
maximum allowable term of incarceration for a Class A misdemeanor. See ORS 161.615(1) (maximum term of imprisonment for Class A misdemeanor is 364 days). According to
defendant, under ORS 137.010(4) and (7), a court is authorized to impose probation only if it suspends the imposition or execution of another part of the sentence. See ORS
137.010(4) (“If the court suspends the imposition or execution
of a part of a sentence” on a misdemeanor offense, “the court
may also impose and execute a sentence of probation ….”);
ORS 137.010(7) (providing a range of certain mandatory
Cite as 322 Or App 384 (2022) 387
sentences if court does not suspend imposition or execution
of any part of a sentence and excluding a sentence of probation). However, in his view, ORS 137.370(3) prohibited the
court from imposing a sentence of incarceration because
he had already served on the original judgment more than
the statutory maximum term of imprisonment for a Class A
misdemeanor. See ORS 137.370(3) (when a judgment of conviction is vacated and a new sentence is imposed on a lesser
included offense of the same crime, a defendant must receive
deduction from the maximum and minimum terms of the
new sentence for periods of detention and imprisonment
already served). Further, defendant continues, if the court
could not impose additional jail time, it also could not suspend imposition of additional jail time where, in his view,
“there remain[ed] no term of imprisonment to be suspended.”
Although disputing that ORS 137.370(3) prohibited the court from imposing additional jail time, the state
nonetheless agrees that the court effectively could not have
required defendant to serve additional jail time after he is
credited for time already served on the original judgment,
ORS 137.370(3). Either way, however, according to the state,
that does not affect the lawfulness of the probationary sentence here because ORS 137.010(3) permitted the court to
impose other parts of a sentence. We agree.
Here, it is undisputed that the court did not impose
any term of imprisonment at defendant’s resentencing.
Defendant’s argument that the court was without the legal
authority to sentence him to probation rests on two legal
premises: (1) that the court did not have the legal authority to impose additional jail time at his resentencing, and
(2) that the court could not suspend imposition of any additional jail time. For support, he relies on ORS 137.370(3), a
statute which he concedes governs the computation of terms
of imprisonment, but he provides no supporting case law
or developed statutory analysis to support his legal argument—that the legislature intended that statute to apply to
a deduction of a defendant’s served incarceration term on a
vacated greater offense, from the maximum allowable term
of imprisonment on a resentencing of the lesser-included
offense, where no sentence of imprisonment is imposed,
388 State v. Beckner
such that a court is divested of its lawful authority under
ORS 137.010(3) to suspend the imposition of a sentence. We
need not and do not resolve the complicated issues that his
argument implicates because, even assuming that ORS
137.370(3) prohibited the court from imposing, and consequently suspending the imposition of, a term of imprisonment, defendant nonetheless has failed to establish that the
court’s imposition of probation on this record was unlawful.
Defendant acknowledges, as he must, that ORS
137.010(3) allows courts to suspend the imposition or execution of all parts of a sentence. See ORS 137.010(3) (a “court
may suspend the imposition or execution of any part of a
sentence” (emphasis added)). Here, the judgment states,
“[i]mposition of sentence is suspended,”1 which supports that
its order was suspending the imposition of all parts of a sentence (other than the imposed sentence of probation) and not
just a sentence of imprisonment. Defendant does not argue
that the court could not lawfully impose, or suspend the
imposition of, any specific part of a sentence other than jail.
Even assuming without deciding that ORS 137.370(3) prohibited the court from imposing and suspending the imposition of additional jail time, defendant does not point to
anything in the record or present any argument explaining
how that would have divested the court of its authority to
suspend the imposition of all other parts of a sentence, ORS
137.010(3). Cf. State v. Coventry, 290 Or App 463, 464,
415
P3d 97 (2018) (“A court’s sentencing authority exists solely
by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized.”
(Internal quotation marks omitted.)). Defendant has therefore failed to establish that the court’s sentence of probation
was unlawful due to the judgment’s statement that “imposition of sentence is suspended,” which refers broadly to all
parts of the sentence and not just a sentence of jail.
In defendant’s second assignment, he raises an alternative unpreserved argument, asserting that the trial court
plainly erred in imposing the 36-month term of probation
1
At the resentencing hearing, the court similarly stated, “I’ll suspend the
imposition of sentence and place the defendant on a period of 36 months supervised probation ….”
Cite as 322 Or App 384 (2022) 389
because it exceeds the five-year term for misdemeanor probations allowed by statute. See ORS 137.010(4) (allowing
for a term of probation not to exceed five years). That is so,
according to defendant, because the statutory five-year limitation begins to run from the date of defendant’s original
sentencing and not the date of his resentencing. The state
contends that defendant’s challenge is not reviewable as
plain error because the legal point is not obvious and beyond
reasonable dispute where no case or statute imposes the rule
defendant advances. We agree.
“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 asserted error is susceptible to
plain-error review only if it is (1) one of law; (2) obvious and
not reasonably in dispute; and (3) appears on the face of
the record. State v. Serrano,
355 Or 172, 179,
324 P3d 1274
(2014), cert den,
576 US 1037 (2015).
Here, it is undisputed that defendant’s original sentence was not a probationary sentence—it was a sentence
of prison—and that he was sentenced to probation for the
first time at his resentencing hearing on remand. It is not
obvious and beyond reasonable dispute from the text of ORS
137.010(4) that the legislature intended the five-year probation term to be calculated from the date a defendant is originally sentenced, regardless of whether a term of probation
is imposed, and not from the date a defendant is actually
sentenced to a term of probation.
ORS 137.010(4) provides:
“If the court suspends the imposition or execution of a
part of a sentence for an offense other than a felony committed on or after November 1, 1989, the court may also
impose and execute a sentence of probation on the defendant
for a definite or indefinite period of not more than five years.
However, upon a later finding that a defendant sentenced to
probation for a felony has violated a condition of the probation and in lieu of revocation, the court may order the period
of both the suspended sentence and the sentence of probation extended until a date not more than six years from the
date of original imposition of sentence. Time during which
390 State v. Beckner
the probationer has absconded from supervision and a
bench warrant has been issued for the probationer’s arrest
shall not be counted in determining the time elapsed since
imposition of the sentence of probation.”
(Emphases added.)
The time-limitation phrase, “period of not more than
five years,” in subsection (4) is modified by “sentence of probation,” indicating that the five-year period is triggered on
the day that a sentence of probation is imposed. The next
sentence, which permits the court to extend the five-year
period to six under certain circumstances for felonies, creates some ambiguity, because it states that the period can
be extended “until a date not more than six years from
the date of original imposition of sentence,” ORS 137.010(4)
(emphasis added). That could suggest, when viewed in isolation, that the probation-term limit is calculated from the
day that any sentence is imposed on the case and not from
the date a sentence of probation is imposed. However, the
circumstances under which a term extension is permitted appears just before, and in the same sentence as, that
phrase. One of those circumstances is when a court finds
that “a defendant sentenced to probation,” has violated the
probation. Id. (emphasis added). Further, the next sentence
states that, in calculating the six-year period, “[t]ime during
which the probationer has absconded from supervision and
a bench warrant has been issued for the probationer’s arrest
shall not be counted in determining the time elapsed since
imposition of the sentence of probation.”
Id. (emphasis added).
Therefore, when read in context, the imposed “sentence”
referred to in the ambiguous phrase “the date of original
imposition of sentence,” appears to refer to the imposition
of a sentence of probation. As a result, it is not obvious and
beyond reasonable dispute that the five-year term limitation
in ORS 137.010(4) begins to run from the date that the original but nonprobationary sentence is imposed and not from
the date that the actual sentence of probation is imposed.
Defendant relies on State v. Lewis, 137 Or App 108,
903 P2d 391 (1995), rev den,
322 Or 613 (1996), but that case
is readily distinguishable. There, the defendant was originally sentenced to a term of incarceration on one count and
Cite as
322 Or App 384 (2022) 391
to two-year consecutive terms of probation on the remaining
counts. Id. at 110. In the defendant’s first appeal, we concluded that the court had committed sentencing error and
remanded for resentencing. On remand, as relevant here,
the court resentenced the defendant to three-year concurrent terms of probation on each count. The court ordered
the probation terms to run from the date of the defendant’s
resentencing, which would have resulted in his probation
expiring more than five years from the date of his original
sentence of probation. Id. at 110-11. In the defendant’s second appeal, we concluded that the court’s order violated the
five-year limitation in ORS 137.010(4). We explained that,
in the defendant’s first appeal, we had affirmed his convictions and remanded for resentencing, which resulted in the
defendant’s imposed probationary sentences “continu[ing] in
effect pending resentencing.” Id. at 111. We then concluded
that ORS 137.010(4) does not permit a trial court to “impose
a sentence of probation that lasts longer than five years from
the date of imposition of the original sentence.” Id. (emphasis
in original).
Lewis is factually distinguishable, and its interpretation of ORS 137.010(4) does not support defendant’s argument. The original sentence in Lewis involved a sentence
of probation, and the sentence of probation was reimposed
following a sentencing error that resulted in a remand for
resentencing. Lewis concludes only that the statutory five-year limitation begins to run from the date that the original
sentence of probation was imposed and not the date that
a defendant is resentenced to probation following a resentencing remand. Lewis does not, as defendant asserts, conclude that the ORS 137.010(4) probationary term limit runs
from the date that the original sentence is imposed when,
as here, that sentence does not include probation, and when,
as here, the sentence of probation is first imposed following
a reversal of a conviction and a remand for resentencing on
a lesser-included offense.2 Defendant’s legal argument does
2
We do not decide how, if at all, a reversal of a greater-included offense and a
remand for entry of conviction for the lesser-included offense of that charge would
affect the date a sentence of probation begins to run as contemplated in ORS
137.010(4), if the sentence of probation were imposed on the greater offense and
then reimposed at the resentencing on the lesser-included offense of the original
charge.
392 State v. Beckner
not point to an error that is obvious and beyond reasonable
dispute and therefore is not reviewable as plain error.
Affirmed.
