State v. Freeman

No. 1040             December 3, 2025                 415

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               THOMAS JAMES FREEMAN,
                 aka Thomas J. Freeman,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   20CR26210; A181812

  Adrian L. Brown, Judge.
  Submitted February 25, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Affirmed.
416                                          State v. Freeman

        JACQUOT, J.
         Defendant appeals from a judgment revoking his
probation and imposing a sentence of 26 months in prison. In
a single assignment of error, defendant argues that he was
entitled to a jury trial on the allegations that he violated his
probation by committing new crimes. Article I, section 11,
of the Oregon Constitution provides, in part, that, “[i]n all
criminal prosecutions, the accused shall have the right to
public trial by an impartial jury ….” Defendant’s assignment of error raises an issue of first impression. Applying
the five-factor test set forth in Brown v. Multnomah County
Dist. Ct., 

, 

 (1977), we hold that
a probation violation hearing is not a “criminal prosecution”
under Article I, section 11, so defendant did not have a state
constitutional right to a jury at the hearing. We therefore
affirm.
                            FACTS
         In August 2022, defendant pleaded guilty to
attempted delivery of methamphetamine and recklessly
endangering another person. The trial court dismissed
other charges, dismissed another pending criminal case,
resolved a pending probation violation case, and sentenced
defendant to 36 months of probation, with a condition that
the presumptive sentence of 25 to 26 months of incarceration would be imposed if his probation was subsequently
revoked. At the hearing on his plea and sentencing, defendant expressly acknowledged that the presumptive sentence
was “hanging over [his] head for a violation of the conditions
of probation.” Those conditions included the general conditions listed in ORS 137.540, as well as special conditions of
probation, including a condition prohibiting the purchase,
possession, or transportation of firearms or ammunition.
        About nine months later, defendant’s probation officer arrested defendant. According to the probation report,
the probation officer learned that defendant had not followed through with his substance use treatment, that
defendant was not living where he was supposed to be, and
that defendant was driving a vehicle even though he had
been instructed not to do so without a valid license and
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insurance. According to the report, when the probation officer and a sheriff’s deputy went to the motel where defendant
was staying, they observed a handgun in plain view inside
defendant’s vehicle, and in his motel room they could see
a backpack with a box of ammunition inside it. Defendant
refused to consent to a search. After obtaining warrants,
the deputy found several firearms, ammunition, and a large
quantity of suspected methamphetamine in the backpack.
In the vehicle, the deputy found additional weapons, including a stun gun and knives. The probation officer recommended revoking probation.
         Before the probation violation hearing, defendant
filed a jury trial demand arguing that he had a right to a
jury trial “for any new crime allegations as alleged in the
probation report.” After his arrest, defendant was indicted
for attempted unlawful delivery of methamphetamine,
unlawful possession of methamphetamine, three counts of
felon in possession of a firearm, and one count of felon in possession of a restricted weapon. Defendant expressed concern
about having his probation revoked based on the allegations
forming the basis for those new criminal charges. The state
responded that it was not asking the court to make findings
relating to the new criminal charges, and, in any event, the
state was not required to prove that defendant was guilty of
the new charges to show that he had violated the conditions
of his probation.
        The trial court noted that there was a difference
between a probation violation hearing and a criminal prosecution because, although both can lead to “a taking away
of someone’s personal liberties,” a revocation of probation
was not an “additional conviction.” The trial court therefore
denied defendant’s request for a jury.
         After hearing testimony from the sheriff’s deputy
and the probation officer, the trial court found that defendant violated several conditions of his probation, including
the requirement to engage in substance use treatment, not
to change residence without prior permission, and to consent to searches. The trial court also found that defendant
failed to obey all laws by driving without a valid license
and insurance, and that he possessed prohibited kinds of
418                                          State v. Freeman

knives and ammunition in violation of the conditions of his
probation. The trial court revoked probation and sentenced
defendant to 26 months in prison consistent with the original sentencing judgment.
                         ANALYSIS
        On appeal, in a single assignment of error, defendant renews his argument that he had a right to a jury at
the probation violation hearing under Article I, section 11,
based on the allegations that he had committed new crimes.
          We review a lower court’s interpretation of a constitutional provision for legal error. State v. Rangel, 

, 

 (1999). There is “no easy test” for
when the imposition of a sanction is a “criminal prosecution” within the meaning of Article I, section 11. Brown,

. In making that determination, the Brown
court set out five factors to consider: (1) the type of offense;
(2) the prescribed penalty; (3) the collateral consequences;
(4) the “[p]unitive significance” of the proceeding, including
whether a judgment is “stigmatizing or condemnatory”; and
(5) whether pretrial procedures associated with a criminal
proceeding, including arrest and detention, are allowed. 

. The Brown court explained that all of the factors
“are relevant, but none is conclusive.” 

.
         In Brown, the court considered the legislature’s
attempt to classify a first offense for driving under the influence of intoxicants as a noncriminal “traffic infraction” to
which criminal constitutional protections did not apply. 

. After applying the five-factor test, the court concluded
that the offense retained “too many penal characteristics
not to be a ‘criminal prosecution’ under Article I, section 11
of the constitution.” 

.
         In State v. Benoit, 

, 

 (2013),
the court came to a similar conclusion. The court considered a charge for the misdemeanor offense of criminal trespass that had been reduced to a violation by the prosecutor’s
election. Applying the five-factor test from Brown, the court
determined that the most important factors under the circumstances were the type of offense, which the legislature
had declared to be a crime, and the fact that the defendant
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had been subject to pretrial arrest and detention. Id. at 312.
The court therefore concluded that the defendant was entitled to a jury trial for the offense under Article I, section 11.
The court came to a similar conclusion in State v. Fuller,

, 

 (2013), a case in which
the defendant’s theft-related charges had been reduced to
violations.
          By contrast, in State v. Whitten, 

, 

 (2016), we determined that the defendant’s
traffic violation proceeding was not a “criminal prosecution”
requiring criminal constitutional protections. Applying
the five-factor test, we explained, among other points, that
the offense of failing to obey a traffic control police officer
was not a crime at common law, the penalty for the offense
was a relatively small fine, the defendant did not identify
any collateral consequences, the offense was not stigmatizing, and—although the defendant was initially charged with
a misdemeanor and subjected to pretrial criminal procedures—the state subsequently dismissed the misdemeanor
charge. 

.
         Here, in arguing that he had a right to a jury trial
under the state constitution at his probation violation hearing, defendant argues that the case “is controlled by Benoit.”
Defendant points out that he was arrested and jailed for
committing new crimes, and, after the hearing, the trial
court revoked his probation and imposed a sentence of 26
months in prison. The state responds that a probation violation hearing is neither a criminal prosecution nor a proceeding with the character of a criminal prosecution, so the
trial court did not err when it denied defendant’s request for
a jury.
        In addressing those arguments, we begin by briefly
considering the nature of probation and probation violation
hearings. Probation is a type of sentence for a crime, and it is
an alternative to incarceration. See ORS 137.010(4) (describing a “sentence of probation”).1 Persons placed on probation are usually subject to general conditions of probation,
    1
      Although probation was not originally considered a sentence, in 1993 the
legislature amended ORS 137.010 to explicitly make probation a sentence. See Or
Laws 1993, ch 14, § 1.
420                                             State v. Freeman

including a prohibition on changing residence without prior
permission, and a requirement to consent to searches. ORS
137.540(1). In addition, courts may impose “any special conditions of probation that are 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).
        “For defendants sentenced for felonies committed
on or after November 1, 1989, the court that imposed the
probationary sentence may revoke probation supervision
and impose a sanction as provided by rules of the Oregon
Criminal Justice Commission.” ORS 137.545(5)(b). In a felony case, “[t]he decision to revoke probation is discretionary and may be exercised upon a finding that the offender
has violated one or more of the conditions of probation, or
that the offender has participated in new criminal activity.”
OAR 213-010-0001. The function of a probation revocation
proceeding
   “is not to punish [the] defendant for a new crime. …
   Rather, the function is to determine whether to impose or
   execute a sentence for the offense of which [the] defendant
   has already been convicted and for which probation was
   granted. The initial decision to place [the] defendant on
   probation was a decision to forego complete denial of liberty
   by incarceration in favor of a judicially-supervised period of
   restricted liberty in the hope that the purposes of rehabilitation … and the protection of the public can be achieved
   by the lesser deprivation of liberty.”
State v. Eckley, 

, 

 (1978) (internal citations omitted). “[T]he Criminal Justice Commission
did not intend to authorize revocation absent a violation of a
condition of supervision or the commission of a new crime.”
State v. Kelemen, 

, 

 (2019).
         Under the federal constitution, a probationer has due
process rights at a probation violation hearing including the
“right to confront and cross-examine a witness …, unless
the state demonstrates good cause to deny that right.” State
v. Martin, 

, 

 (2022). However,
the protections guaranteed by the Sixth Amendment to the
United States Constitution are “generally not available in
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probation revocation proceedings. A probation revocation
proceeding is not tried to a jury, and it requires only that
the state prove the probation violation by a preponderance
of the evidence, not beyond a reasonable doubt.” Id. at 668.
“Probation revocation hearings are conducted with less formality than a criminal trial.” State v. Donovan, 

, 

 (1988).
         Although a defendant does not have a federal right
to a jury at a probation violation hearing, here, defendant
raises the question of whether he has that right under the
state constitution when the probation violation is based at
least in part on allegations of new crimes. To answer that
question, we apply the five-factor test from Brown, 

.
         Starting with the first Brown factor, we consider the
type of offense, including whether it was “a crime at common
law, or at the time the constitution was adopted, or for a
long time thereafter.” 

. An allegation of a probation violation does not resemble a crime at common law. “In
1931 the legislature for the first time gave the trial courts
authority to place criminal defendants on probation.” State
v. Carmickle, 

, 

 (1988). Probation is “a
creature of statute” that did not exist in Oregon prior to that
time. 

. We have previously determined that the first
Brown factor weighed against a defendant charged with the
offense of failing to obey a traffic control police officer in
part because it was not a crime at common law. Whitten, 

. Here, we likewise conclude that the first
Brown factor weighs against defendant.
         “[P]robation revocation is not a criminal proceeding.
It does not require proof of an offense and does not punish a
new offense.” State v. Gonzalez, 

, 

(2007) (internal quotation marks omitted). A probation violation can be—but does not have to be—based on allegations
of a new crime. See Kelemen, 

 (explaining that “the Criminal Justice Commission did not intend
to authorize the revocation of probation in the absence of a
finding that an offender had violated the conditions of probation either by committing a new crime or in some other
way” (emphasis added)).
422                                                      State v. Freeman

         Here, defendant argues that he had a right to a jury
because the state alleged that he violated his probation by
committing new crimes. But defendant was not prosecuted
for those new crimes at the probation hearing. Indeed, the
state indicated that it would not rely at the probation hearing on the allegations underlying the new charges for possession of firearms and controlled substances. And in concluding that the state proved that defendant violated the
conditions of his probation, the trial court relied on evidence
that defendant failed to engage in substance use treatment,
changed his residence without permission, possessed knives
and ammunition, drove without a valid license or insurance,
and failed to provide consent to searches. Thus, a probation
violation hearing does not have to be based on allegations
of new crimes, which is an additional reason why the first
Brown factor weighs against defendant.2
         The second Brown factor is the “penalty,” and the
Supreme Court has explained that the “prescribed penalty
is generally regarded as the single most important criterion”
in determining whether a proceeding qualifies as a “criminal prosecution” under Article I, section 11. Brown, 

. Certainly, a probation violation can result in a range
of penalties or sanctions against the probationer. See ORS
137.593 - 137.595 (describing sanctions for probation violations). Here, defendant points out that he was sentenced to 26
months in prison. But that sentence was not a new penalty;
instead, it was the imposition or execution of a preexisting
penalty. See Eckley, 

 (explaining that the
function of the hearing “is to determine whether to impose or
execute a sentence for the offense of which [the] defendant has
already been convicted and for which probation was granted”).
Because the purpose of the probation violation hearing was to
determine whether defendant’s conduct warranted executing
or imposing a preexisting sentence of incarceration—one that
defendant expressly acknowledged was “hanging over [his]
head” when he entered his plea—we conclude that the second
Brown factor also weighs against defendant.

    2
      We express no opinion on whether a defendant whose probation is revoked
based only on allegations of new crimes would be entitled to a jury trial under
Article I, section 11. That did not occur here, and, in any event, defendant does
not develop that argument.
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         The third and fourth Brown factors are the “[c]ollateral consequences” and the “punitive significance” of the proceeding, including whether the judgment “carries stigmatizing or condemnatory significance.” Brown, 

.
Defendant does not address the collateral consequences of a
probation violation hearing, which likely vary from case to
case, and we decline to develop that argument for him. State
v. Bonilla, 

, 

 (2015) (declining to consider undeveloped argument). That factor therefore weighs against defendant or at least does not weigh
in his favor. With regard to the fourth factor, a judgment
revoking probation can be characterized as carrying “the
stigma of condemnation,” see Brown, 280 Or App at 107, but,
once again, much, if not all, of that stigma derives from the
underlying conviction, not from the decision to revoke probation. We therefore conclude that the fourth Brown factor
also weighs against defendant or, at least, it does not weigh
in his favor.
         Finally, we consider whether the proceeding involves
pretrial practices of arrest and detention. Id. at 108. A probationer is subject to arrest and detention pending a hearing on the probation violation. See ORS 137.545(2), (3). Here,
defendant was arrested and detained, and he relies on that
circumstance to argue that he was entitled to a jury at the
probation hearing. See Benoit, 

 (determining
that subjecting the defendant to “those uniquely criminal
procedures” weighed in favor of finding that the proceeding
was a criminal prosecution).
         However, in Whitten, 

, we
determined that a proceeding was not a criminal prosecution, even though the defendant was arrested, booked, and
detained for interfering with a peace officer, and, as the court
explained in Brown, 

, no one factor is “conclusive.” Even accepting that the fifth Brown factor weighs in
defendant’s favor, because the others do not or weigh against
him, we conclude that defendant had no right to a jury at
his probation violation hearing under Article I, section 11.
Therefore, the trial court did not err in denying the request.
        Affirmed.