State v. Stone

No. 191              March 27, 2024                    621

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                AMBER MAE STONE,
                 Defendant-Appellant.
              Umatilla County Circuit Court
                 20CR06780; A178487

  Jon S. Lieuallen, Judge.
  Submitted February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kate E. Morrow, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Affirmed.
622                                                          State v. Stone

           ORTEGA, P. J.
         Defendant appeals the judgment revoking her probation and imposing a 15-month term of incarceration. In a single assignment of error, she argues that the trial court abused
its discretion when it revoked her probation, because her probation violations were relatively minor and were connected
with being homeless and not having reliable access to a phone.
Defendant argues that the court had to consider community
safety and defendant’s rehabilitation in its decision. We conclude that the court’s decision to revoke defendant’s probation
was within its allowable discretion. Accordingly, we affirm.
         We review the revocation of probation for abuse
of discretion. OAR 213-010-0001; State v. Hamilton, 

, 

 (2022), rev den, 

(2023). The court’s discretion is “guided by a balancing of
considerations of public safety and rehabilitation of persons
convicted of crime.” Barker v. Ireland, 

, 

 (1964).
         Citing ORS 137.592, ORS 137.595(1), and ORS
137.599, defendant argues that the legislature enacted those
statutes “to guide the trial court in making its decision.”
She also cites OAR 291-058-0010(3)(a),1 which in substance
recites the provisions of ORS 137.592 as the policy of the
Department of Corrections. Defendant argues that the trial
court was required to consider the factors set out in those
provisions and to balance “as it must, the needs of public
safety and the rehabilitation of the offender.”
         In response, the state points out that, to the extent
that defendant is arguing on appeal that the trial court was
legally required to consider and balance the factors mentioned in those authorities, her argument is unpreserved.
We agree. The state also argues that the statutes do not
pertain to a trial court’s decision whether to revoke probation. Rather, they are directed at a court’s decision to impose
sanctions, and what sanctions are appropriate.
    1
      In her brief, defendant cites OAR 213-010-0001. That rule, however, does
not contain the text quoted by defendant. Instead, the quoted text is found in
OAR 291-058-0010(3)(a). We, thus, assume that defendant intended to cite OAR
291-058-0010(3)(a). Regardless, any mistake in that citation has no effect on our
decision.
Nonprecedential Memo Op: 

 (2024)           623

         Even assuming that the court’s exercise of discretion should be guided by the authorities that defendant cites,
the trial court did not abuse its discretion here. Defendant
was on probation for a felon in possession of a firearm conviction, following a plea agreement dismissing three other
charges, including one count of possession of methamphetamine. Her probation was part of the sentencing agreement
reached by the parties and included the availability of 90
jail-sanction days and an agreement that, if defendant’s probation were revoked, defendant would be sentenced to 15
months’ imprisonment.
         In fact, the court revoked defendant’s probation
after hearing evidence that she had failed to communicate
with her probation officer and was not engaging in services
or programs and after finding that she had violated her probation a third time. During the probation violation hearing,
it was clear that the trial court and both parties considered
it imperative that defendant engage in substance abuse
treatment. But defendant had not done that, despite it being
a focus of her two prior probation violation hearings. The
court could conclude that probation was not working as a
means to get defendant into treatment, and it was within
the court’s discretion to revoke on that basis. See Hamilton,

 (“[U]nder 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.