State v. Dempsey

No. 50               January 29, 2025                  515

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 TROY CAJE DEMPSEY,
                    aka Troy Dempsey,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   17CR33587; A182104

  Adrian L. Brown, Judge.
  Submitted December 13, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Troy Dempsey filed the supplemental reply brief pro se.
  Before Lagesen, Chief Judge, and Egan, Judge.
  EGAN, J.
  Affirmed.
516                                                     State v. Dempsey

           EGAN, J.
         Defendant appeals a judgment revoking probation.
His appointed counsel filed a brief pursuant to ORAP 5.90
and State v. Balfour, 

, 

 (1991). The
brief includes a Section B. See ORAP 5.90(1)(b). In Section
B, defendant argues that the trial court had no authority
to revoke his probation because his probation had expired
before the probation revocation hearing. We granted leave for
defendant to file an amended pro se reply brief. Considering
the record and defendant’s arguments, we affirm.1
         We review a sentencing court’s decision to revoke
probation for legal error. State v. LaCoe, 

,

 (2022). A sentencing court’s authority to revoke
probation exists solely by virtue of a statutory grant of
power. 

 “[T]he retained authority of a sentencing court
to adjudicate a probation violation is limited to violations
that are reported and charged during the probation period.”
State v. Berglund, 

, 

 (2021).
Before revoking probation after the scheduled expiration
of probation, a sentencing court must extend the probation
period through a “deliberate judicial act.” State v. Vanlieu,

, 

 (2012).
         OAR 213-005-0008(3) provides that the time during
which “the offender has absconded from supervision and a
bench warrant has issued for the offender’s arrest shall not
be counted in determining the time served on a sentence of
probation.” “[W]hen determining whether a defendant has
absconded from supervision, the sentencing court must consider whether the defendant’s actions show that the defendant intended to evade or avoid legal process, not simply
that the defendant failed to attend one meeting with a probation officer or could not be located for a brief period of
time[.]” LaCoe, 

 (internal quotation marks
omitted).
        Here, in January 2018, defendant pleaded no contest to violating a stalking protective order and he was
   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Yother, 

, 

 (2021) (deciding
matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 

, 

 (2012), rev den, 

 (2013) (same).
Cite as 

 (2025)                              517

sentenced to five years of probation. Over four years later, in
August 2022, the trial court issued a bench warrant because
defendant failed to report as directed and failed to notify his
probation officer of an address change. In September 2022,
defendant wrote a letter to the trial court explaining his situation. The trial court responded by informing defendant of
two pending warrants. Nevertheless, defendant did not turn
himself in, and he was arrested in February 2023.
         Thereafter, defendant’s probation revocation hearing was set over a number of times. In May 2023, defendant
moved to dismiss the probation revocation proceedings on
the ground that his probation had expired in January 2023.
At a hearing on the motion, the trial court determined that
defendant’s period of probation was tolled between August
2022 and February 2023, because defendant had absconded
during that period of time by failing to turn himself in after
being informed of pending warrants. As a result of that tolling
period, defendant’s probation did not expire until July 2023.
In May 2023, the trial court found that defendant had violated
the terms of his probation and imposed a sentence of 40 months
 in prison and 20 months of post-prison supervision.
          Having reviewed the record, including the trial
court file, the transcript of the hearings, the Balfour brief,
Section B of the brief, the state’s answering brief, and defendant’s amended pro se reply brief, we conclude that there
may have been an “arguably meritorious issue” for purposes
of ORAP 5.90 as to whether defendant’s conduct constituted
absconding such that the trial court was justified in tolling
the expiration of the period of probation under OAR 213-
005-0008(3). That is, we do not perceive defendant’s claim
of error, which involves consideration and application of the
standard relatively recently announced in LaCoe to somewhat unique factual circumstances, to be frivolous. We have
not, however, identified any other arguably meritorious
issues. Reviewing defendant’s pro se arguments in Section B
and in his amended reply brief, the state’s answering brief,
and the record, we conclude that the trial court did not err
in determining that defendant absconded, thereby tolling
the period of probation and extending its term. As a result,
we do not request supplemental briefs on that issue under
518                                      State v. Dempsey

ORAP 5.90(3). Instead, because that issue has been briefed
by the parties, and additional briefing at this point would
not materially aid the decision-making process while needlessly prolonging it, on our own motion, we find good cause
to waive ORAP 5.90(3). Because we have identified no other
arguably meritorious issues, we affirm the judgment revoking probation.
        Affirmed.