No. 578 November 8, 2023 57
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN NICHOLAS JOHNSON,
aka Ryan Johnson,
Defendant-Appellant.
Coos County Circuit Court
21CR46912; A177356
Andrew E. Combs, Judge.
Argued and submitted September 26, 2023.
John Evans, 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.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
58 State v. Johnson
AOYAGI, P. J.
Defendant was convicted of harassment, ORS
166.065, and fourth-degree assault constituting domestic
violence, ORS 163.160(3), and sentenced to 36 months of probation. As to each count, the sentencing court included as a
special condition of probation that defendant must “[s]ubmit
to polygraph examination by a qualified polygraph examiner
designated by the Probation Officer under terms and conditions set by the Probation Officer.” Defendant challenges
that special condition. He argues that because the legislature has enacted a general condition of probation providing
for submission to polygraphs in limited circumstances, ORS
137.540(1)(L),1 sentencing courts lack authority to impose
a special condition of probation requiring polygraphs in
broader circumstances, as doing so has the effect of impermissibly overriding the general condition. We conclude that
the claim of error is unpreserved, such that we are limited
to plain-error review, and we conclude that the error is not
plain. Accordingly, we affirm.
The only relevant fact is that the aforementioned
special condition of probation was imposed on defendant.
On appeal, defendant does not dispute that the condition is
“reasonably related to the crime of conviction or the needs
of the probationer for the protection of the public or reformation of the probationer, or both,” ORS 137.540(2), so there
is no need to recount the facts pertaining to his crimes of
conviction.
As for the procedural posture of this case, defendant contends that he adequately preserved the claim of
error but, in the event that we conclude otherwise, requests
plain-error review and argues that the requirements for
plain error are met. The state disagrees that the claim of
error was preserved and argues that any error is not plain.
“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 correct
1
The condition at issue was codified as ORS 137.540(1)(n) at the time of
trial but, due to an intervening statutory amendment, is now codified as ORS
137.540(1)(L). See Or Laws 2022, ch 78, § 10. The amendment does not affect our
analysis, so we cite the current statute.
Cite as 329 Or App 57 (2023) 59
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). It is a matter of discretion whether we will correct a plain error. State
v. Gornick,
340 Or 160, 166,
130 P3d 780 (2006).
Defendant objected to the special condition regarding polygraphs, so the question is whether the substance of
his objection adequately put the sentencing court and the
state on notice of the issue now raised on appeal. See Peeples
v. Lampert, 345 Or 209, 220,
191 P3d 637 (2008) (discussing
the purposes of the preservation rules, which are “pragmatic
as well as prudential,” and describing “procedural fairness
to the parties and to the trial court” as the ultimate “touchstone” for preservation). We conclude that it did not. In stating his objection to the polygraph condition, defendant began
by noting that the general condition in ORS 137.540(1)(L) is
limited to sex offenders and did not apply. That statement
could have served as a starting point for the argument now
made on appeal, but, in fact, it served only as a segue into
arguing that special conditions (unlike general conditions)
are subject to the “reasonably related” requirement in ORS
137.540(2) and that the special condition regarding polygraphs was not reasonably related to defendant’s specific
crimes and needs in this case.
Nothing defendant said at sentencing can fairly be
viewed as shorthand for the legal issue raised on appeal.
See State v. Walker, 350 Or 540, 550,
258 P3d 1228 (2011)
(“Particularly in criminal cases, in which there is a premium
on considerations of cost and speed, the realities of trial practice may be such that fairly abbreviated short-hand references suffice to put all on notice about the nature of a party’s
arguments.”). To the contrary, defendant’s appellate argument actually contradicts his argument below. Defendant
argues on appeal that, as a matter of statutory construction,
the only polygraph condition that sentencing courts may
impose is the general condition in ORS 137.540(1)(L) and
that, irrespective of case-specific circumstances, sentencing
courts lack authority to impose special conditions regarding
60 State v. Johnson
polygraphs. By contrast, at sentencing, defendant argued
that the court had authority to impose special conditions
regarding polygraphs, but that there needed to be “either
something statistical specific to the type of violation that’s
anticipated or something specific to the particular defendant such as a history of violating a particular condition
in some way that the polygraph requirement would either
deter or uncover later,” and that the record in this particular case did not support imposing a special condition regarding polygraphs.
For those reasons, we conclude that defendant did
not preserve the issue that he raises on appeal and that our
review is limited to plain error.
Turning to plain-error review, defendant’s legal
argument relies on “the proposition that, where the legislature has enacted a particular probation condition but limited its applicability, trial courts may not impose that probation condition beyond the limits the legislature placed in the
statute.” He cites State v. Bowden, 292 Or App 815,
425 P3d
475 (2018), and State v. Schwab,
95 Or App 593,
771 P2d 277
(1989), for that proposition. Seeking to apply that principle
here, defendant argues that the legislature enacted a particular probation condition regarding polygraphs—the general
condition in ORS 137.540(1)(L)—but limited its applicability
to people who have been convicted of sex offenses, and that
it follows that sentencing courts may not impose polygraph
conditions on anyone else by way of a special condition.
As relevant to that argument, ORS 137.540(1)(L)
provides:
“(1) The court may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the court. The probationer shall:
“…
“(L) If recommended by the supervising officer, successfully complete a sex offender treatment program
approved by the supervising officer and submit to polygraph examinations at the direction of the supervising officer if the probationer:
Cite as 329 Or App 57 (2023) 61
“(A) Is under supervision for a sex offense under ORS
163.305 to 163.467;
“(B) Was previously convicted of a sex offense under
ORS 163.305 to 163.467; or
“(C) Was previously convicted in another jurisdiction
of an offense that would constitute a sex offense under ORS
163.305 to 163.467 if committed in this state.”
We are unpersuaded that it is obvious and beyond
reasonable dispute that the legislature intended the general
condition in ORS 137.540(1)(L) to serve as the only permissible polygraph condition for probationers, such that sentencing courts lack authority to impose special conditions
regarding polygraphs on non-sex offenders even if justified
by case-specific circumstances. See Vanornum, 354 Or at
629 (the legal point must be “obvious” and not reasonably in
dispute for an error to be “plain”).
In Bowden, the defendant was convicted of driving
under the influence of marijuana, and the sentencing court
imposed several special conditions of probation that limited
his use of medical marijuana. 292 Or App at 816. On appeal,
we held that the sentencing court lacked authority to impose
those special conditions, because they conflicted with a general condition of probation requiring that probationers “ ‘[n]ot
use or possess controlled substances except pursuant to
a medical prescription.’ ”
Id. at 816 (quoting former ORS
137.540(1)(b) (2017), amended by Or Laws 2022, ch 78, § 10
(emphasis in Bowden)). We explained that sentencing courts
may impose special conditions that are “supplementary” to
the general conditions enacted by the legislature, but that
they may not use ORS 137.540(2) as “a means to impose a
special condition that overrides a general condition and for
which the limitations of a general condition need not be followed.” Id. at 818 (emphases in original).
We noted in Bowden that we had used the same
reasoning in Schwab, when we had stated in Schwab, “The
‘language [in ORS 137.540(2)] only allows a court to impose
other types of conditions that are not already addressed
in the statute. Conditions that the legislature specifically
defined are statutory restrictions to which a court must
conform when imposing probation conditions.’ ” Id. (quoting
62 State v. Johnson
Schwab, 95 Or App at 597). In Schwab, the defendant was
convicted of theft, and the sentencing court imposed a special condition of probation that he “submit to search of his
person, automobile and premises and seizure of any contraband without consent and without a search warrant by his
probation officer to verify compliance with the conditions
of probation.”
95 Or App at 596. We reversed on appeal,
holding that the condition impermissibly conflicted with
a narrower, legislatively created specific condition that, if
imposed, required a probationer to “ ‘[s]ubmit person, residence, vehicle and property to search by a probation officer having reasonable grounds to believe such search will
disclose evidence of a probation violation.’ ”
Id. (quoting former ORS 137.540(2)(L) (1985), amended by Or Laws 1993,
ch 680, § 16 (emphasis in Schwab)). We explained that the
sentencing court could only impose “types of conditions that
are not already addressed in the statute” and that “[c]onditions that the legislature specifically defined are statutory
restrictions to which a court must conform when imposing
probation conditions.” Id. at 597.
It is reasonably debatable whether the situation
here is analogous to that in Bowden and Schwab. In particular, it is debatable whether the legislature intended ORS
137.540(1)(L) to limit or restrict the imposition of polygraph
conditions on non-sex offenders. ORS 137.540(1)(L) is a general condition of probation under which a probationer who has
been convicted of a sex offense must, “[i]f recommended by
the supervising officer, successfully complete a sex offender
treatment program approved by the supervising officer and
submit to polygraph examinations at the direction of the
supervising officer[.]” That condition addresses polygraphs,
but it is not solely, or arguably even primarily, about polygraphs. Defendant argues that the statutory text, context,
and legislative history together suggest that the legislature
made a policy choice to subject only sex offenders to polygraphs and intended that no other offenders be subject to
polygraph conditions. The state disagrees, countering that
the statutory text, context, and legislative history together
suggest that the legislature intended to add a new general
condition regarding sex offender treatment and polygraphs
that would apply to sex offenders, while leaving undisturbed
Cite as 329 Or App 57 (2023) 63
the authority of sentencing courts to impose polygraph conditions on non-sex offenders as special conditions on a case-specific basis.
Both parties’ arguments have persuasive weight.
To conclusively resolve this legal issue of first impression,
we would have to engage in an in-depth analysis of statutory text, context, and legislative history to a degree
that exceeds the bounds of plain-error review. Whichever
party may ultimately prove correct as to the effect of ORS
137.540(1)(L) on sentencing courts’ authority to impose polygraph conditions on non-sex offenders, the legal point is not
obvious, but rather reasonably in dispute. Accordingly, any
error is not a plain error, and we affirm.
Affirmed.
