State v. Willis

No. 369                June 5, 2024                      13

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                JOSHUA JAMES WILLIS,
                   Defendant-Appellant.
              Josephine County Circuit Court
                   10CR0676; A177724

  Robert S. Bain, Judge.
  Argued and submitted October 3, 2023.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   E. Nani Apo, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  MOONEY, J.
  Affirmed.
14   State v. Willis
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           MOONEY, J.
         In 2011, appellant pleaded guilty to unlawful delivery of marijuana, former ORS 475.860(2) (2009), repealed by
Or Laws 2017, ch 21, § 126. In 2021, while still incarcerated
on other charges, appellant moved to set aside his marijuana conviction pursuant to former ORS 475B.401 (2019),
renumbered as ORS 475C.397 (2021).1 The trial court denied
appellant’s motion on the basis that his conviction would not
qualify to be set aside until he completed his term of post-prison supervision (PPS), which had not yet begun as appellant was still incarcerated. Appellant challenges the denial
of his motion and raises two assignments of error. In his
first assignment, appellant argues that the state constitution entitled him to court-appointed counsel at the contested
hearing. We conclude that because a contested set aside
hearing is not part of a “criminal prosecution” within the
meaning of Article I, section 11, of the Oregon Constitution,
appellant did not have a right to counsel at the hearing. In
his second assignment, appellant argues that the trial court
erred in denying his motion because PPS is not part of “the
sentence of the court” under ORS 475C.397(7)(b)(C). After
an examination of the text, context, and legislative history
of the statute, we conclude that the legislature intended “the
sentence of the court” to include any attendant term of PPS,
and consequently, appellant’s conviction is not eligible to be
set aside until he completes his term of PPS. We therefore
affirm.
         “We review a lower court’s interpretation of a constitutional provision for legal error.” State v. Rangel, 

, 

 (1999); see also State v. Whitten, 

, 

 (2016) (reviewing for errors
of law a trial court’s determination that a traffic violation
proceeding is not a “criminal prosecution” pursuant to
Article I, section 11). Similarly, whether a movant is entitled
to have their conviction set aside is a question of law which
we review for legal error. State v. Singleton, 

, 

 (2022).

    1
      The statute has not been substantively amended since its enactment, and
accordingly, we refer to the current numbering of the statute for the remainder of
the opinion.
16                                                  State v. Willis

         The pertinent facts are procedural and undisputed.
In 2011, appellant entered a plea deal to resolve six pending criminal cases against him. As part of that deal, he
pleaded guilty to unlawful delivery of marijuana, among
other charges. On the delivery conviction, appellant was
sentenced to 26 months of incarceration followed by a three-year term of PPS. In total, the deal resulted in a 164-month
term of incarceration.
        In 2014, Oregon voters legalized the possession,
manufacture, and sale of marijuana, subject to state licensing requirements and regulation. See generally Or Laws
2015, ch 614. The state legislature subsequently enacted a
set aside process by which individuals could remove marijuana related convictions from their criminal records, provided that the conviction is “qualifying,” defined as follows:
         “ ‘Qualifying marijuana conviction’ means a conviction
     for a marijuana offense:
         “(A) Based on conduct described in ORS 475C.305 or
     possession of less than one ounce of the dried leaves, stems
     or flowers of marijuana;
        “(B) Committed prior to July 1, 2015; and
        “(C) For which the person has completed and fully
     complied with or performed the sentence of the court.”
ORS 475C.397(7)(b).
        In 2021, appellant moved to set aside his delivery conviction pursuant to ORS 475C.397. At that time,
appellant had completed the 26-month term of incarceration imposed for the delivery conviction, but he was still
incarcerated under the terms of the plea deal. The District
Attorney objected to appellant’s motion on the basis that the
delivery conviction would not qualify for the set aside until
appellant was no longer incarcerated and had completed his
three-year term of PPS.
        The trial court held a contested hearing on appellant’s motion. At that hearing, appellant asked whether he
could “request for counsel.” The trial court explained that
appellant was not entitled to court-appointed counsel:
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      “I don’t think you’re entitled to a court appointed attorney. You’re certainly welcome to have an attorney represent
   you. But I’m not, I don’t believe you have the right to a court
   appointed attorney on a motion to set aside a conviction.”
The hearing proceeded with appellant unrepresented. The
court ultimately denied appellant’s motion on the basis that
his delivery conviction did not qualify under the statute
because appellant had not yet completed his PPS.
          Beginning with appellant’s first assignment of
error, the question is whether a set aside proceeding is part
of a “criminal prosecution” within the meaning of Article I,
section 11. Appellant argues that “[a] contested hearing to
set aside a conviction triggers the right to counsel, because
it is an adversarial hearing involving a prosecutor, it occurs
as part of the criminal case, the burden of proof is on the
[appellant], and the stakes include the stigma of a criminal
conviction.” Specifically, appellant asserts that a contested
set aside hearing is a “continuation of the criminal case”
because the proceeding is “held in the court of conviction,
typically under the same case number (as happened here).”
The state responds that “a proceeding initiated by a motion
to set aside a conviction, although related to a criminal case,
is not, itself, a criminal prosecution.” Accordingly, in the
state’s view, the state constitutional right to counsel does
not apply. For the reasons that follow, we agree with the
state.
         Article I, section 11, provides, in part:
      “In all criminal prosecutions, the accused shall have
   the right … to be heard by himself and counsel[.]”
To determine whether an individual is entitled to court-appointed counsel, the first question then is “whether there
is a ‘criminal prosecution[ ],’ because the text of Article I,
section 11, makes the right to counsel applicable only in
that instance.” State v. Gray, 

, 

 (2022) (brackets in original). If the proceeding is part
of a criminal prosecution, in addition to any “critical stage”
of the prosecution, “counsel cannot be excluded from any
stage of the criminal prosecution at which a defendant is to
be ‘heard,’ ” and where, “without the assistance of counsel,
18                                               State v. Willis

the legal interests of the defendant might be prejudiced.”
State ex rel Russell v. Jones, 

, 

(1982); see also State v. Davis, 

, 

 (2011) (noting that the scope of the state constitutional
right to counsel is not limited to critical stages of criminal
prosecutions).
          To determine whether a proceeding is a “criminal
prosecution” for constitutional purposes, we evaluate the
punitive significance and the penal characteristics of the
proceeding, specifically considering the type of offense, the
penalty incurred, the collateral consequences, the stigmatizing effect of the judgment, and the availability of pretrial
arrest and detention. State v. Benoit, 

, 

 (2013) (discussing Brown v. Multnomah County
Dist. Ct., 

, 

 (1977)). “[A]ll those
factors are relevant, but none is conclusive ….” Benoit, 

 (internal quotation marks and brackets omitted).
If the proceeding “retains too many penal characteristics,”
it is part of a “criminal prosecution” for purposes of Article I,
section 11. 

 (internal quotation marks omitted).
         At the outset, we note that the Oregon Supreme
Court has squarely held that a set aside proceeding is not a
criminal proceeding for jurisdictional purposes. State v. K.
P., 

, 

 (1996). In K. P., the court held
that a set aside proceeding is “not a criminal action” and
thus, “an appeal of the ruling on that motion … is not governed by ORS chapter 138[,]” relating to criminal appeals.

 Rather, a set aside proceeding is a “special statutory
proceeding” under former ORS 19.010(4) (1995), renumbered
as ORS 19.205(5) (2003), and Oregon appellate courts have
jurisdiction to review an appeal of the ruling on the motion
under ORS chapter 19, relating to appeals generally. 

. In reaching its conclusion, the court reasoned that a
set aside proceeding serves a “rehabilitative function” and is
therefore “the antithesis of the original criminal conviction,
not an adjunct to it.” 

 Because K. P. involved the interpretation and application of jurisdictional statutes, its holding
does not fully resolve the constitutional question before us.
See Brown, 

 (“When the legislature has defined
conduct as a criminal offense, it is a criminal offense for
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constitutional purposes even if the same consequences could
have been attached to the same conduct by civil or administrative proceedings. But it does not follow that a law can
avoid this result simply by avoiding the term ‘criminal’ in
defining the conduct to be penalized. Constitutional guarantees have more substance than that.”). We find the underlying reasoning in K. P. instructive because it is analogous to
the constitutional test set out above, in that the court in K. P.
similarly assessed whether the proceeding serves a punitive
function.
          Returning to the governing constitutional principles, a set aside proceeding does not fit neatly into the multi-factor evaluation originally identified in Brown. To start, a
set aside proceeding under ORS 475C.397 is not designed
to prove whether an individual has engaged in certain conduct constituting an “offense.” Further, the appellant does
not incur a penalty if their motion fails. Although a set aside
proceeding requires an underlying criminal conviction,
which in many cases, including appellant’s, carried with it
the possibility of imprisonment, the set aside process is a
remedy that does not otherwise affect the movant’s punishment. State v. Burke, 

, 

 (1991),
rev den, 

 (1992) (holding that removing child
abuse convictions from eligibility for “the set aside remedy”
does not violate the Ex Post Facto Clauses of the state or
federal constitutions). As we have explained:
   “The availability of a procedure for sealing one’s criminal
   record is unrelated to the length or nature of an individual’s
   incarceration or constructive custody. It does not increase
   imprisonment, forestall parole or extend probation. It does
   not decrease the trial judge’s discretion to impose the sentence that is most appropriate for the individual. Further,
   it is a collateral matter that does not change the primary
   effect of a conviction.”

 (emphasis in original). Finally, pretrial arrest and
detention are not available to the court while the motion is
pending.
        Appellant emphasizes the stigmatizing effect of
the set aside proceeding. When a trial court denies a set
aside motion, the consequence for the movant is that the
20                                             State v. Willis

conviction remains on their record, which, we acknowledge,
allows the stigma of that conviction to continue. Importantly
though, that stigma attaches at the time of conviction, not at
the time the motion is denied. Moreover, we have previously
observed that “the social stigma that may attach to an individual with a criminal record is inflicted by the citizenry
and the community,” and therefore, the denial of a set aside
motion “cannot constitute the governmental imposition of a
‘punishment,’ in the constitutional sense of that word.” 

. Indeed, the core purpose of the set aside process is
to remove that stigma: “The legislature intended [set aside
proceedings] to combat the stigma associated with the public nature of a record of arrest or conviction by providing
individuals with such a record the opportunity to purge it
and start fresh.” State v. McVein, 

, 

 (2020). We conclude that the set aside process is not
punitive in nature and that the proceeding itself does not
retain the penal characteristics of a criminal prosecution.
          As to appellant’s assertion that the proceeding is
a continuation of the criminal case because it is held in the
court of conviction under the same case number, the Supreme
Court has previously rejected such a “formalistic approach”
in favor of a functional assessment. See State v. Branstetter,

, 

 (2001). In Branstetter, the
Supreme Court held that a forfeiture order was sufficiently
“separate” from the underlying criminal prosecution, and
therefore, the appellate courts have jurisdiction to review
that order as a “special statutory proceeding.” 

. In
that case, before the appellant was acquitted, the trial court
entered a forfeiture order against the appellant that was
filed as part of the underlying criminal action. 

.
The state argued that the forfeiture order was unappealable
because the action was formally part of the criminal case,
and our criminal jurisdictional statutes do not provide for
an appeal from an acquittal. 

. The court rejected
the state’s argument that formal separateness, specifically
separate case numbers, was required. 

. Rather, the
court reasoned that although a forfeiture proceeding “formally depends on a criminal action for its existence in that
it can go forward only if a criminal action of a specified sort
is pending, that kind of forfeiture proceeding does not arise
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out of the criminal action, resolve any controversy in the
criminal action, or otherwise affect or depend on the substance of the criminal action.” Id. at 398-99.
          While Branstetter, like K. P., did not resolve a constitutional question, we similarly find its underlying reasoning helpful. A formalistic approach that simply matches the
case number and court of conviction is incongruent with the
multi-factor evaluation set out in Brown, where no single
factor is dispositive. Just as Branstetter noted that a forfeiture proceeding depends on the existence of an underlying
criminal action but does not otherwise resolve or have any
other effect on that action, we note that the same is true in
the context of set aside proceedings. While a set aside proceeding necessarily requires an underlying criminal conviction, it is otherwise disconnected from the substantive components of that criminal case because it does not involve the
adjudication of guilt or otherwise affect sentencing. Because
a set aside proceeding under ORS 475C.397 is not part of a
“criminal prosecution,” Article I, section 11, does not entitle
a movant to court-appointed counsel at a contested set aside
hearing. Accordingly, the trial court did not err in denying
appellant’s request for court-appointed legal counsel.
         Turning to appellant’s second assignment of error,
the question is whether a movant must complete PPS to fully
comply with “the sentence of the court” before their conviction qualifies to be set aside under ORS 475C.397(7)(b).
As noted above, a qualifying marijuana conviction is a conviction (1) based on conduct described in ORS 475C.305, (2)
committed prior to July 1, 2015, and (3) for which the person “has completed and fully complied with or performed
the sentence of the court.” ORS 475C.397(7)(b). Appellant
argues that he complied with “the sentence of the court”
when “he fully served his prison sentence and paid all his
fees.” In appellant’s view, his three-year term of PPS is not
part of his sentence, and, therefore, the trial court erred in
denying his motion. We conclude, as the state argued, that
the text, context, and legislative history of ORS 475C.397
indicates that the legislature intended “the sentence of the
court” to include a term of PPS.
22                                                   State v. Willis

         When interpreting a statute, our task is to give effect
to the intent of the legislature, and to do so, we first examine the statute’s text and context, then consider the relevant
legislative history to the extent it is useful to the analysis.
State v. Gaines, 

, 

 (2009). If
the legislature’s intent remains unclear after examining the
text, context, and relevant legislative history, we resort to
general maxims of statutory construction. 

.
        We begin with the plain text of ORS 475C.397(7)(b)(C)
which refers to the “sentence of the court,” without defining that term or otherwise referencing PPS. ORS chapter
475C similarly does not define “sentence.” We turn, then, to
dictionaries:
     “[W]e presume that the ordinary meaning of a word is
     reflected in a dictionary. While Oregon courts generally
     rely on Webster’s Third New International Dictionary, consulting several dictionaries … better ensures that a court
     determines a word’s ordinary usage and avoids the possibility that dictionary selection affects the outcome.”
Hollister, 

, 

 (2020) (internal quotation marks and citations omitted). As relevant
here, Webster’s defines “sentence” as “a decision or judicial
determination of a court or tribunal” such as “the judgment
passed by a court or judge on a person on trial as a criminal or offender” or “the order by which a court or judge
imposes punishment or penalty upon a person found guilty.”
Webster’s Third New Int’l Dictionary 2068 (unabridged ed
2002). Black’s Law Dictionary defines “sentence” as “[t]he
judgment that a court formally pronounces after finding a
criminal defendant guilty; the punishment imposed on a
criminal wrongdoer.” Black’s Law Dictionary 1636 (11th ed
2019). We have likewise observed in the context of a juvenile
delinquency case that a sentence “must be ordered by the
court, it must be a disposition that affects a criminal or an
offender, and it should serve to punish or penalize.” State v.
Trice, 

, 

, rev den, 

(1997). A term of PPS is ordered by the court and included
in the judgment, its imposition requires a criminal offender
to continue under the supervision of the Department of
Corrections while in the community, and its duration is tied
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to the seriousness of the crime of conviction. OAR 213-005-
0002(2) - 213-005-0003. PPS, thus, appears to fall within
the definition of “sentence.”
         We look next to the statute’s context, specifically,
Oregon’s sentencing guidelines, which define PPS as part of
an offender’s “sentence.” OAR chapter 213 outlines sentencing guidelines, and the legislature has expressly approved
those rules, giving them the authority of statutory law. Or
Laws 1989, ch 790, § 87; State v. Langdon, 

, 

 (2000) (“Although the sentencing guidelines were
created as administrative rules, the legislature approved
them in 1989, giving them the authority of statutory law.”).
Specifically, OAR 213-005-0002(1) provides that “[a] term of
community supervision is part of the sentence for any felony
offender ….” (Emphasis added.) OAR 213-005-0002(4) also
provides that “the total duration of any sentence” includes
“prison incarceration and post-prison supervision.” We think
it unlikely that the legislature intended to deviate from the
definition of “sentence” provided by the sentencing guidelines without explicitly providing an alternative definition.
         We also look to the general set aside statute, ORS
137.225, for context. The general set aside statute requires
that an individual “has fully complied with and performed
the sentence of the court” to be eligible for a set aside. ORS
137.225(1)(a). In State v. Branam, 

, 

, rev den, 

 (2008), we addressed the question whether the defendant’s non-compliance with his initial
sentence of probation made him ineligible for a set aside.
We concluded that the “relevant sentence” under the set
aside statute “is the one that ultimately is imposed—here,
the incarceration sentence imposed after revocation of [the]
defendant’s probation.” Id. at 260. We added that “where a
defendant initially is sentenced to probation but probation is
later revoked and the defendant is sentenced to an incarceration term (and accompanying term of [PPS]), the relevant
‘sentence of the court’ … is the incarceration term[.]” Id. at
263-64. Appellant relies on that latter language in Branam
to argue that we were excluding PPS from an offender’s
sentence in the context of the general set aside statute. But
he reads more into Branam than is there. The language
24                                               State v. Willis

describing the relevant sentence as the “incarceration term”
must be understood in the context of our broader conclusion
in Branam that the “sentence of the court” is the sentence
ultimately completed by the appellant, notwithstanding any
intervening period of probation that is later revoked. The
question whether PPS is included in the “sentence of the
court” was neither raised nor decided in Branam.
           The legislature amended ORS 137.225 after we
decided Branam. Importantly, the legislative history of
those amendments does not reference Branam. And while
the amendments affected how the general set aside statute
treats probation revocation by clarifying that “[a] person
whose sentence of probation was revoked may not apply to
the court for entry of an order setting aside the conviction
… for a period of 10 years from the date of revocation[,]” Or
Laws 2015, ch 820, §32a, the change did not concern whether
PPS is part of “the sentence of the court.” How long a person
must wait to apply for the general set aside of a conviction
after violating and having been revoked on the probation
that he or she was serving on that conviction is a different
question from whether PPS is included in the “sentence of
the court” that must be fulfilled to qualify for the filing of a
motion to set aside in the first instance.
         The 2015 amendments also added language to ORS
137.225 that clarified that “[a] person who is still under
supervision, or who is still incarcerated, … has not fully
complied with or performed the sentence of the court.” Or
Laws 2015, ch 820, § 32a. As appellant notes, that same clarifying language was not expressly included in the marijuana
set aside statute, enacted in 2019. But the 2015 amendment
to ORS 137.225 simply made explicit that the definition of
“sentence” in that statute is aligned with the definition of
“sentence” already provided by the administrative rules and
approved by the legislature. We do not read the omission
of that clarifying language from ORS 475C.397 to reflect
an intent by the legislature to exclude PPS from the term
“sentence of the court.” Indeed, such a reading would create
inconsistency between the text of ORS 475C.397 and context
that we have already described in which that text exists.
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          Finally, we turn to the legislative history of ORS
475C.397 to the extent that it might be helpful. That history
suggests that the legislature intended the set aside process
to be expedient. See Audio Recording, Senate Committee on
Judiciary, SB 420, Apr 5, 2019, at 3:13 (comments of Sen
Lew Frederick), https://olis.oregonlegislature.gov (accessed
Apr 30, 2024) (“Senate Bill 420 … would streamline the
expungement process by only requiring those seeking to
clear their records to complete a simple form, which petitions
the court to set aside the conviction. Senate Bill [420] would
allow for an expedited expungement of a marijuana offense
for a conviction prior to July 1, 2015, for any conviction that
would … now be legal under ORS 475B.”). However, the
legislative history does not affirmatively demonstrate that
the legislature intended to accomplish that expediency by
allowing individuals to apply for a set aside before completing the “sentence of the court,” including PPS. The legislative
history suggests instead that legislators were specifically
concerned that a judicial or administrative set aside process
without an accompanying source of revenue would impede
the bill’s mission and efficacy. See Audio Recording, House
Committee on Judiciary, SB 420, May 22, 2019, at 1:00:27
(comments of Rep Duane Stark), https://olis.oregonlegislature.gov (accessed Apr 30, 2024) (“I am concerned overall
of the ongoing impact to [the Oregon Judicial Department]
if we are providing yet another free service that could
increase their workload …. … I’m worried that when our
courts aren’t open long enough already, that adding more
free things is going to continue to have a negative effect on
their ability to serve people appropriately.”). The legislature,
thus, intended to create a streamlined process for setting
aside qualifying marijuana convictions to avoid financial
burden to the state. The legislative history does not support
defendant’s theory that the legislature intended to omit PPS
from the meaning of the term “sentence of the court” as used
in the marijuana set aside statute.
         The text, context, and relevant legislative history
strongly suggest that the legislature did not intend the meaning of “the sentence of the court” in ORS 475C.397(7)(b)(C)
to deviate from the definition provided in the sentencing
guidelines. We conclude that PPS is part of the sentence that
26                                              State v. Willis

appellant must complete before he is eligible to have his marijuana conviction set aside. The trial court did not err in denying his motion on that basis.
        Affirmed.