28
Submitted May 25, vacated and remanded for resentencing, otherwise affirmed
July 12, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
KALLAN MITCHEL HAMPTON,
Defendant-Appellant.
Lane County Circuit Court
21CR16507, 21CR20232, 21CR33295;
A176937 (Control), A176938, A176939
534 P3d 1116
In three criminal cases, defendant was convicted of a total of two counts
of unauthorized use of a vehicle, ORS 164.135, and one count each of second-degree burglary, ORS 164.215, third-degree theft, ORS 164.043, and interfering
with a peace officer, ORS 162.247. Defendant was sentenced in all three cases in
a single sentencing hearing. In this consolidated appeal, defendant challenges
the sentencing court’s ruling that it lacked authority under ORS 137.717(6) to
consider a downward departure from the presumptive repeat property offender
(REPO) sentences. Held: The sentencing court misconstrued the phrase “a crime
listed in subsection (1) of this section” in ORS 137.717(6). That phrase refers to
the crimes subject to REPO sentencing that are listed by name in ORS 137.717
(1)(a), (b), and (c). As relevant to this appeal, it does not encompass crimes listed
in ORS 137.717(2).
Vacated and remanded for resentencing; otherwise affirmed.
Karrie K. McIntyre, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, 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.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Vacated and remanded for resentencing; otherwise
affirmed.
Cite as 327 Or App 28 (2023) 29
AOYAGI, P. J.
In this consolidated appeal of three judgments,
defendant raises a single assignment of error, challenging
the sentencing court’s ruling that it lacked authority under
ORS 137.717(6) to consider a downward departure from the
presumptive repeat property offender (REPO) sentences.1
This case requires us to construe “a crime listed in subsection (1) of this section” in ORS 137.717(6)(a). As explained
below, we agree with defendant that the court misconstrued
ORS 137.717(6)(a), so we vacate and remand the judgments
for resentencing.
Defendant pleaded guilty and was convicted of
criminal charges in three separate cases. In case number
21CR16507, he was convicted of unauthorized use of a vehicle (UUV). In case number 21CR20232, he was convicted of
second-degree burglary, third-degree theft, and interfering
with a peace officer. In case number 21CR33295, he was convicted of UUV. Defendant was sentenced in all three cases
in a single sentencing hearing.
The parties agreed at sentencing that defendant’s
three prior convictions for second-degree theft qualified him
as a repeat property offender under ORS 137.717. The state
recommended that defendant be given the presumptive
REPO sentences in each case and that the sentences run
consecutively. Defendant argued for a downward departure
to probation, citing his particular circumstances, and maintaining that he met the criteria in ORS 137.717(6), which
provides:
“The court shall sentence a person under this section to
at least the presumptive sentence described in subsection
(1)(a) or (b) or (3) of this section, unless the parties stipulate
otherwise or the court finds that:
“(a) The person was not on probation, parole or post-prison supervision for a crime listed in subsection (1) of this
1
We generally have “no authority to review … [a] sentence that is within
the presumptive sentence prescribed by the rules of the Oregon Criminal Justice
Commission.” ORS 138.105(8)(a)(A). However, that limitation does not apply to
“presumptive sentences” under ORS 137.717. See State v. Watkins-McKenzie,
286 Or App 569, 572,
400 P3d 1012 (2017), rev dismissed,
363 Or 224 (2018).
Defendant’s claim of error is therefore reviewable.
30 State v. Hampton
section at the time of the commission of the current crime
of conviction;
“(b) The person has not previously received a downward departure from a presumptive sentence for a crime
listed in subsection (1) of this section;
“(c) The harm or loss caused by the crime is not greater
than usual for that type of crime; and
“(d) In consideration of the nature of the offense and
the harm to the victim, a downward departure will:
“(A) Increase public safety;
“(B) Enhance the likelihood that the person will be
rehabilitated; and
“(C) Not unduly reduce the appropriate punishment.”
The state did not respond to defendant’s argument regarding ORS 137.717(6).
In sentencing defendant, the sentencing court
explained that it lacked authority to depart downward from
the presumptive REPO sentences, even if it might otherwise
be inclined to do so, because ORS 137.717(6)(a) requires a
“not on probation” finding and defendant was “on probation”:
“Mr. Hampton, I would say a few things before I proceed forward with sentencing. First of all, your attorney
argued some very compelling points about why you might
be a good candidate for probation, namely that you haven’t
been to prison before, first of all. But—and you have had
some life circumstances go on since you’ve been engaged in
this criminal activity since April that might warrant you
having a new perspective on how you address your addiction issues.
“But I am also confined by the Legislature and the laws
that they put in place for these types of crimes. Specifically,
the provisions that your attorney is citing regarding my
ability to place you on a downward departure, meaning not
[sic] probation, I think are limited because I cannot find
all factors that are required in order for the Court to impose
a downward departure. Specifically, 6-A of 137.717 requires
me to find that you are not on probation. You are actually on
probation. And then you also committed offenses while you
were facing already new crimes.
Cite as 327 Or App 28 (2023) 31
“And you admitted the allegation of Aggravating Factors
in Case No. 232 and 295. Therefore, I cannot receive that
information and then make the finding that you would be
eligible for probation.
“In your case, if I had leisure, I would probably do a combination of prison time and probation after you got out. But
I don’t think that I’m permitted to do that under Oregon
law, based on the circumstances in your case.”
(Emphasis added.)
The court proceeded to sentence defendant to 20
months in prison for UUV in case number 21CR16507;
24 months in prison for second-degree burglary (partially
consecutive), 30 days in jail for third-degree theft, and 30
days in jail for interfering with a peace officer in case number 21CR20232; and 26 months in prison for UUV in case
number 21CR33295. (The court also imposed terms of post-prison supervision that are not relevant on appeal.) The burglary sentence and the two UUV sentences were presumptive REPO sentences.
On appeal, defendant contends that the sentencing
court committed legal error with respect to ORS 137.717(6)
and its requirements for sentence reduction eligibility.
Specifically, he argues that the court misconstrued ORS
137.717(6)(a), which requires a finding that “[t]he person
was not on probation, parole or post-prison supervision for a
crime listed in subsection (1) of this section at the time of the
commission of the current crime of conviction[.]” (Emphasis
added.) Defendant argues that second-degree theft, the
crime for which he was on probation, is not a crime listed in
ORS 137.717(1). The state counters that second-degree theft
actually is a crime listed in ORS 137.717(1). Alternatively,
the state argues that the sentencing court also found defendant ineligible based on ORS 137.717(6)(d) and that defendant, having not challenged that finding on appeal, loses in
any event.
We address the latter issue first. We are unpersuaded that the sentencing court made a finding under ORS
137.717(6)(d). The court expressly identified ORS 137.717(6)(a)
as the criterion that defendant could not meet, because it
required a finding that defendant was “not on probation.”
32 State v. Hampton
The court did not cite or quote any of the other criteria.
Nonetheless, the state argues that the court implicitly made
a finding under ORS 137.717(6)(d) when it stated, “And then
you also committed offenses while you were facing already
new crimes. And you admitted the allegation of Aggravating
Factors in Case No. 232 and 295. Therefore, I cannot receive
that information and then make the finding that you would
be eligible for probation.”
The difficulty with the state’s argument is that it is
not at all clear that those statements by the court refer to
ORS 137.717(6)(d)—which requires findings regarding public safety, the likelihood of rehabilitation, and appropriate
punishment—particularly given the court’s next statement,
that it would “probably do a combination of prison time and
probation” if it had the authority. There is some possibility that the court intended to make a finding under ORS
137.717(6)(d), but we cannot infer such a finding on this
record, given the ambiguity. We therefore assume for purposes of this appeal that the court relied solely on its express
finding under ORS 137.717(6)(a).
We turn to the issue of ORS 137.717(6)(a). The parties’ disagreement as to whether second-degree theft is a
crime “listed in” ORS 137.717(1) presents a question of statutory construction. On questions of statutory construction, we
seek to ascertain the intent of the legislature or the voters
(whichever applies) 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); see also State v. Actkinson,
319 Or App
832, 838,
511 P3d 444, rev den,
379 Or 303 (2022) (explaining that, with regard to acts referred to the voters, the
legislative history “consists of the materials publicly available to the voters—the measure itself, the ballot title, and
the Voters’ Pamphlet explanations of the measure, as well
as contemporaneous media accounts” (internal quotation
marks and brackets omitted)). Here, we begin and end with
the text in context, as the parties have not identified, nor
are we otherwise aware of, any useful legislative history.2
2
ORS 137.717 has a somewhat complicated legislative history. It was originally enacted in 1996 and has been amended several times since then. See Or
Cite as 327 Or App 28 (2023) 33
The disputed text that we construe in this case is
one of the requirements for sentence reduction eligibility
under ORS 137.717(6): a finding that “[t]he person was not
on probation, parole or post-prison supervision for a crime
listed in subsection (1) of this section at the time of the commission of the current crime of conviction.” ORS 137.717(6)(a)
(emphasis added). The parties disagree on the meaning of “a
crime listed in subsection (1).” To address which crimes are
“listed in subsection (1),” it is necessary to set out the text of
subsection (1) in full:
“(1) When a court sentences a person convicted of:
“(a) Aggravated theft in the first degree under ORS
164.057, burglary in the first degree under ORS 164.225
or aggravated identity theft under ORS 165.803, the presumptive sentence is 24 months of incarceration, unless the
rules of the Oregon Criminal Justice Commission prescribe
a longer presumptive sentence, if the person has:
“(A) A previous conviction for aggravated theft in the
first degree under ORS 164.057, burglary in the first degree
under ORS 164.225, robbery in the third degree under ORS
164.395, robbery in the second degree under ORS 164.405,
robbery in the first degree under ORS 164.415 or aggravated identity theft under ORS 165.803;
“(B) Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section;
or
“(C) A previous conviction for a crime listed in subsection (2) of this section, if the current crime of conviction was
committed while the defendant was on supervision for the
previous conviction or less than three years after the date
the defendant completed the period of supervision for the
previous conviction.
“(b) Unauthorized use of a vehicle under ORS 164.135,
mail theft or receipt of stolen mail under ORS 164.162, burglary in the second degree under ORS 164.215, criminal
Laws 1996, ch 3, § 1 (Spec Sess); Or Laws 1999, ch 1022, §§ 2, 4, 7; Or Laws 2001,
ch 784, § 1; Or Laws 2007, ch 584, § 2; Or Laws 2008, ch 14, § 7 (Spec Sess); Or
Laws 2009, ch 660, §§ 8, 11; Or Laws 2013, ch 649, § 5; Or Laws 2017, ch 673, § 5.
The provision in ORS 137.717(6) was part of an act referred in 2008 to the voters,
who adopted it, as discussed in Actkinson, 319 Or App at 838, 840-42.
34 State v. Hampton
mischief in the first degree under ORS 164.365, computer
crime under ORS 164.377, robbery in the third degree under
ORS 164.395, forgery in the first degree under ORS 165.013,
criminal possession of a forged instrument in the first degree
under ORS 165.022, fraudulent use of a credit card under
ORS 165.055 (4)(b), possession of a stolen vehicle under
ORS 819.300 or trafficking in stolen vehicles under ORS
819.310, the presumptive sentence is 18 months of incarceration, unless the rules of the Oregon Criminal Justice
Commission prescribe a longer presumptive sentence, if
the person has:
“(A) A previous conviction for aggravated theft in
the first degree under ORS 164.057, unauthorized use of
a vehicle under ORS 164.135, burglary in the first degree
under ORS 164.225, robbery in the third degree under ORS
164.395, robbery in the second degree under ORS 164.405,
robbery in the first degree under ORS 164.415, possession
of a stolen vehicle under ORS 819.300, trafficking in stolen
vehicles under ORS 819.310 or aggravated identity theft
under ORS 165.803;
“(B) Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section;
or
“(C) A previous conviction for a crime listed in subsection (2) of this section, if the current crime of conviction was
committed while the defendant was on supervision for the
previous conviction or less than three years after the date
the defendant completed the period of supervision for the
previous conviction.
“(c) Theft in the first degree under ORS 164.055 or identity theft under ORS 165.800, the presumptive sentence is
13 months of incarceration, unless the rules of the Oregon
Criminal Justice Commission prescribe a longer presumptive sentence, if the person has:
“(A) A previous conviction for aggravated theft in the
first degree under ORS 164.057, unauthorized use of a vehicle under ORS 164.135, burglary in the first degree under
ORS 164.225, robbery in the second degree under ORS
164.405, robbery in the first degree under ORS 164.415,
possession of a stolen vehicle under ORS 819.300, trafficking in stolen vehicles under ORS 819.310 or aggravated
identity theft under ORS 165.803; or
Cite as 327 Or App 28 (2023) 35
“(B) Four or more previous convictions for any combination of crimes listed in subsection (2) of this section.”
ORS 137.717 (emphases added).
Defendant argues that “a crime listed in subsection
(1)” means the crimes to which ORS 137.717(1) applies, i.e.,
a crime for which a person may be sentenced as a repeat
property offender, as italicized above. Second-degree theft
is not such a crime. The state counters that “a crime listed
in subsection (1)” means any crime referenced directly or
indirectly in ORS 137.717(1), i.e., the crimes for which a person may be sentenced under ORS 137.717(1); the “previous
conviction” crimes identified in ORS 137.717(1)(a)(A), ORS
137.717(1)(b)(A), and ORS 137.717(1)(c)(A) (collectively the
“(A)” subparagraphs); and the “previous conviction” crimes
that are listed in ORS 137.717(2) and cross-referenced in
ORS 137.717(1)(a)(B), ORS 137.717(1)(a)(C), ORS 137.717
(1)(b)(B), ORS 137.717(1)(b)(C), and ORS 137.717(1)(c)(B) (collectively the “(B)” and “(C)” subparagraphs). In other words,
in the state’s view, a crime “listed in” ORS 137.717(1) means
any crime listed in ORS 137.717(1) or (2); thus, because
second-degree theft is listed in ORS 137.717(2), it is also
listed in ORS 137.717(1).3
Three aspects of the text in context particularly
persuade us that the legislature intended “a crime listed in
subsection (1)” to refer to the crimes italicized in the block
quote above.
First, if the legislature had intended for a person on
probation for a crime listed in subsection (2) to be ineligible
for a sentence reduction, it presumably would have said that
in ORS 137.717(6)(a). Instead, ORS 137.717(6)(a) refers only
to a crime “listed in subsection (1).” Moreover, ORS 137.717(1)
consistently describes the crimes listed in ORS 137.717(2) as
“the crimes listed in subsection (2) of this section.” The only
3
To use a specific example, a person convicted of mail theft, ORS 164.162,
is subject to the presumptive REPO sentence of 18 months of incarceration if the
person has “[t]wo or more previous convictions for any combination of the crimes
listed in subsection (2) of this section.” ORS 137.717(1)(b)(B). The state would
read that provision to mean that any crime listed in subsection (2) is also listed
in subsection (1), because subsection (1) refers to previous convictions for crimes
listed in subsection (2).
36 State v. Hampton
apparent reason to “list” those crimes in a separate subsection is to facilitate distinguishing between crimes listed in
subsection (1) and crimes listed in subsection (2).
Second, ORS 137.717(3) reinforces the distinction
between the crimes listed in the two previous subsections.
It provides for a two-month increase to the presumptive sentence described in ORS 137.717(1)(a) or (b) “for each previous
conviction the person has that … [w]as for any of the crimes
listed in subsection (1) or (2) of this section; and … [w]as not
used as a predicate for the presumptive sentence described
in subsection (1)(a) or (b) or this section.” ORS 137.717(3)
(emphasis added). The state’s interpretation would require
us to read “a crime listed in subsection (1) of this section,”
ORS 137.717(6)(a), to mean exactly the same thing as “the
crimes listed in subsection (1) or (2) of this section,” ORS
137.717(3). The language of ORS 137.717(3) strongly suggests
that the legislature intended “a crime listed in subsection (1)”
to mean something different from “the crimes listed in subsection (1) or (2).”
Third, another requirement to be eligible for sentence reduction under ORS 137.717(6) is a finding that “[t]he
person has not previously received a downward departure
from a presumptive sentence for a crime listed in subsection (1) of this section.” ORS 137.717(6)(b). The only “listed”
crimes for which a person could have previously received a
downward departure from a presumptive sentence are the
crimes to which presumptive REPO sentences apply, i.e., the
crimes italicized in the block quote above. ORS 137.717(6)(b)
is therefore consistent with reading “a crime listed in subsection (1)” to mean the crimes subject to presumptive sentencing in ORS 137.717(1).
For those reasons, we construe “a crime listed in
subsection (1) of this section” in ORS 137.717(6) to mean the
crimes subject to REPO sentencing that are listed by name
in ORS 137.717(1)(a), (b), and (c). Conversely, we construe
it not to include crimes of previous conviction that qualify
a person as a repeat property offender, whether named in
the “(A)” subparagraphs or cross-referenced in the “(B)”
and “(C)” subparagraphs. The subparagraph references to
Cite as 327 Or App 28 (2023) 37
previous convictions for “crimes listed in subsection (2)”
do not import the crimes listed in subsection (2) into subsection (1), such that the crimes listed in subsection (2)
become “a crime listed in subsection (1).” We acknowledge
that the previous-conviction crimes named in the “(A)” subparagraphs in ORS 137.717(1) are more susceptible to being
characterized as “listed in subsection (1)” than the previous-conviction crimes listed in ORS 137.717(2) and only cross-referenced in the “(B)” and “(C)” subparagraphs in ORS
137.717(1). However, for the reasons described, we are ultimately persuaded that the legislature intended a “crime
listed in subsection (1)” to mean the crimes subject to REPO
sentencing that are listed by name in ORS 137.717(1)(a), (b),
and (c).4
It follows that defendant—who was on probation
for second-degree theft—was “not on probation, parole or
post-prison supervision for a crime listed in subsection (1)
of this section at the time of the commission of the current
crime of conviction.” ORS 137.717(6)(a). The court therefore
erred in concluding that defendant was ineligible based on
ORS 137.717(6)(a), and we vacate and remand the judgments
for resentencing. On remand, the court should consider the
other requirements of ORS 137.717(6)—subparagraphs (b), (c),
and (d)—on which it did not previously make findings.5 We
disagree with the state that we should address those other
4
To the extent that defendant suggests that we could treat the previous-conviction crimes that are named differently from those that are cross-referenced,
or that we need not resolve that issue in this opinion, we disagree. Given the
structure of the statute, not addressing the previous-conviction crimes named
in the “(A)” subparagraphs of ORS 137.717(1) would require incomplete statutory construction in a way that would compromise the integrity of our analysis.
As an aside, we observe that, at present, only two previous-conviction crimes—
first-degree robbery and second-degree robbery—appear exclusively in the
“(A)” subparagraphs.
5
The state points out that, if defendant is found eligible for a sentence reduction under ORS 137.717(6), the sentencing court may impose a downward departure sentence for only one of his convictions. See ORS 137.717(6)(b) (requiring
a finding that “[t]he person has not previously received a downward departure
from a presumptive sentence for a crime listed in subsection (1) of this section”);
Watkins-McKenzie, 286 Or App at 576 (construing “previously received” in ORS
137.717(6)(b) to include a conviction arising from a separate criminal episode that
was sentenced earlier in the same proceeding). Defendant’s position on that point
is unclear. If he disagrees, those arguments should be directed to the sentencing
court.
38 State v. Hampton
requirements on appeal, rather than allowing the trial court
to do so in the first instance.
Vacated and remanded for resentencing; otherwise
affirmed.
