State v. Rusen

                                      677

 Argued and submitted September 24, 2021, resubmitted January 25; decision
  of Court of Appeals affirmed, judgment of circuit court reversed, and case
       remanded to circuit court for further proceedings May 12, 2022


                   STATE OF OREGON,
                    Petitioner on Review,
                              v.
               JONATHAN WILLIAM RUSEN,
                   Respondent on Review.
          (CC 17CR12207) (CA A168201) (SC S068295)
                                  

     Pursuant to a plea agreement, defendant pleaded no contest to four counts
of second-degree sexual abuse, and the state recommended a downward dispositional sentence of probation. The parties agreed that, if the trial court revoked
defendant’s probation sentences, the trial court would have the authority to
impose consecutive terms of incarceration as probation revocation sanctions.
Defendant reserved the right, however, to argue that any probation revocation
sanctions should be run concurrently. The trial court followed that recommendation and imposed concurrent terms of probation. The trial court later revoked
defendant’s probation based on a single violation and sentenced defendant to consecutive terms of incarceration for each of the four counts. Defendant appealed,
arguing that the consecutive sentences imposed by the trial court violated OAR
213-012-0040(2)(a), which requires concurrent probation revocation sanctions
where multiple terms of probation are revoked for a single violation. The state
argued that defendant’s sentence was not reviewable under ORS 138.105(9),
which bars appellate courts from reviewing “any part of a sentence resulting
from a stipulated sentencing agreement between the state and the defendant.”
The state further argued that the trial court had authority to impose consecutive
probation revocation sanctions under ORS 137.123(2), which authorizes consecutive sentences for defendants whose multiple offenses “do not arise from the same
continuous and uninterrupted course of conduct.” The Court of Appeals reversed.
Held: (1) Defendant’s sentence was reviewable because ORS 138.105(9) does not
bar review of challenges to “part of a sentence” when the parties reserved the
right to make competing arguments regarding what the court should decide with
respect to that part of the sentence; (2) the consecutive sentences imposed by
the trial court violated OAR 213-012-0040(2)(a) and were not authorized by ORS
137.123(2), which applies only to the initial sentencing following conviction.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.



    On review from the Court of Appeals.*
______________
   * Appeal from Linn County Circuit Court, Thomas McHill, Judge. 

, 

 (2020).
678                                                       State v. Rusen

   Timothy A. Sylwester, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Ellen Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
   Anne Fujita Munsey, Deputy Defender, Salem, argued the
cause and filed the brief for respondent on review. Also on
the brief was Ernest G. Lannet, Chief Deputy Defender,
Office of Public Defense Services.
  Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
   FLYNN, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.




______________
    … Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
Cite as 

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        FLYNN, J.
         In the criminal case before us, defendant challenges
the trial court’s imposition of consecutive terms of incarceration upon revoking defendant’s probation. Defendant had
been serving the sentence of probation pursuant to a plea
agreement and had stipulated that, if the court revoked
his probation, the court could impose consecutive terms
of incarceration as sanctions. Defendant had reserved the
right, however, to argue that any probation revocation sanctions should be run concurrently. The first question this
case presents is whether defendant is barred from obtaining
appellate review by ORS 138.105(9), which provides that an
“appellate court has no authority to review any part of a
sentence resulting from a stipulated sentencing agreement
between the state and the defendant.” The second question,
on the merits, is how to resolve an apparent conflict between
ORS 137.123(2), which generally authorizes consecutive sentences for defendants—like this defendant—whose multiple
offenses “do not arise from the same continuous and uninterrupted course of conduct,” and OAR 213-012-0040(2)(a), a
sentencing guideline that restricts the ability of sentencing
judges to impose consecutive incarceration sanctions upon
revoking probation.
         The Court of Appeals concluded that defendant’s
challenge to the revocation sanction was reviewable and,
on the merits, that the trial court lacked authority in this
case to impose consecutive terms of incarceration following
revocation of defendant’s probation. We allowed the state’s
petition for review and now affirm the decision of the Court
of Appeals on both questions.
         On the procedural question, we conclude that the
legislature did not intend ORS 138.105(9) to bar review of
challenges to “part of a sentence” when the parties reserved
the right to make competing arguments regarding what the
court should decide with respect to that part of the sentence.
Accordingly, petitioner’s challenge to the court’s decision to
impose consecutive terms of incarceration is reviewable. On
the merits, we conclude that ORS 137.123(2) applies to initial sentencing and, therefore, is compatible with OAR 213-
012-0040(2)(a), which applies when a court revokes probation
680                                                          State v. Rusen

and requires the court to impose concurrent incarceration
terms where, as here, probation is revoked based on a single violation. We therefore affirm the decision of the Court
of Appeals, reverse the judgment of the trial court, and
remand for further proceedings.
                           I. BACKGROUND
         In 2017, defendant pleaded no contest to four counts
of second-degree sexual abuse involving the same minor
victim. As part of the plea agreement, the state agreed to
dismiss six counts charging defendant with other sexual
offenses involving the same victim. The plea agreement
specified that the four counts to which defendant pleaded
guilty were committed on four different dates—i.e., not “the
same continuous and uninterrupted course of conduct,”
ORS 137.123(2)—and specified the applicable grid block
for each offense under the Oregon Sentencing Guidelines
(guidelines).1
         Although each of the specified grid blocks carried a
presumptive sentence of incarceration that could amount to
a total of 122 months if run consecutively, the parties agreed
that the state would recommend that the court depart from
the presumptive sentences and impose, instead, three years
of supervised probation. At the sentencing hearing, defense
counsel also advised the court that, “if the Court revokes
probation,” defendant was “acknowledg[ing] … that the
State could ask for up to 122 months, but [ ] defendant would
… be free to ask that [the sentences] run concurrently.”
The prosecutor confirmed the agreement, explaining that,
in the event of revocation, “[i]t would be open sentencing
within those parameters.” The court characterized that
agreement to mean, “in the event of revocation on the downward departure[,] that the Court could impose consecutive
sentences,” and the parties confirmed that characterization. The court then followed the parties’ recommendation
    1
      We have previously explained that the guidelines include a “grid” used to
determine the presumptive sentence for an offense. To use the grid, the court
calculates and then locates the defendant’s “criminal history score” on the horizontal axis of the grid and the “crime seriousness score” for the offense on the
vertical axis, and “the gridblock where those axes intersect contains the presumptive sentence for the defendant’s crime.” State v. Dulfu, 

, 

 (2018).
Cite as 

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and sentenced defendant to supervised probation on each
count, with the probation terms to be served concurrently.
The judgment of conviction included a term memorializing
the agreement regarding revocation: “The parties agree
that[,] should this probation be revoked, the convictions
on each count are eligible for consecutive sentences to be
imposed.”
        The conditions of probation included that defendant
have no contact with the victim, except as specified in writing by the court or defendant’s probation officer. Less than
a year later, however, the state alleged that defendant had
violated the terms of his probation by having sexual intercourse with the same victim. Defendant pleaded guilty to
a new charge of second-degree sexual abuse and conceded
that his contact with the victim had violated the terms of
probation. In light of defendant’s concession, the probation revocation hearing largely focused on an appropriate
sanction.
         The state asked the court to impose consecutive terms
of incarceration, noting the parties’ agreement that, in the
event that defendant’s probation were revoked, the court
could impose consecutive sentences. Defendant emphasized, however, that he had reserved the right to argue
at the time of revocation that the court should not impose
consecutive sentences. He characterized the agreement as
merely acknowledging that, under certain circumstances,
the sentencing guidelines would authorize consecutive probation revocation sanctions, such as, for example, “if more
than one term of probationary supervision is revoked for
separate supervision violations.” OAR 213-012-0040(2)(b).
But, because defendant’s multiple terms of probationary
supervision were revoked for a single supervision violation,
defendant argued that the sentencing guidelines required
the trial court to impose the probation revocation sanctions
concurrently.2 See OAR 213-012-0040(2)(a) (“If more than
one term of probationary supervision is revoked for a single
supervision violation, the sentencing judge shall impose the
incarceration sanctions concurrently.”).

   2
     On review, the state does not argue that the trial court revoked defendant’s
multiple terms of probation based on more than one violation.
682                                          State v. Rusen

         The trial court concluded that the parties’ agreement that the court could impose consecutive probation
revocation sanctions meant that the court did not need to
consider whether the guidelines authorized consecutive sentences under the circumstances. The court then announced
that it was revoking defendant’s probation on all counts,
imposing a term of incarceration for each count, and ordering the incarceration terms to be served consecutively—for
a total of 106 months’ incarceration.
         Defendant appealed the revocation judgment and
assigned error to the trial court’s imposition of consecutive
terms of incarceration. State v. Rusen, 

,

 (2020). Although the state contended that the
consecutive incarceration terms were the product of “a stipulated sentencing agreement,” and thus that ORS 138.105(9)
precluded review, the Court of Appeals rejected that argument. 

. The court reasoned that the parties’
agreement as to the issue of consecutive sentences was not
a “stipulated sentencing agreement” because it was not
“specific”—rather, it was an agreement that, “upon revocation, the state could argue for consecutive sentences and
defendant could argue for concurrent ones.” 

.
         On the merits, the Court of Appeals concluded
that, under OAR 213-012-0040(2)(a), the trial court erred
in imposing consecutive terms of incarceration as probation
revocation sanctions for a single violation of probation. In
reaching that result, the court rejected the state’s argument that the trial court had authority to impose consecutive sanctions under ORS 137.123(2). The court resolved
the apparent conflict between the provisions by holding that
ORS 137.123(2) governs a trial court’s authority to impose
consecutive terms of incarceration as an initial sentence,
while OAR 213-012-0040(2) governs the trial court’s authority to impose consecutive terms of incarceration as a probation revocation sanction. 

.
         The state petitioned this court for review, which we
allowed. State v. Rusen, 

, 

 (2021).
                       II. ANALYSIS
         The state contends that the decision of the Court
of Appeals is wrong for two alternative reasons. First, the
Cite as 

 (2022)                                   683

state argues that defendant’s consecutive incarceration
sanctions are the product of “a stipulated sentencing agreement” and, thus, that ORS 138.105(9) makes the sentences
unreviewable. Second, the state argues that the trial court
had authority to impose the consecutive terms of incarceration under ORS 137.123(2), because defendant’s underlying
offenses did “not arise from the same continuous and uninterrupted course of conduct,” and that OAR 213-012-0040(2)
does not limit that authority. We turn first to the issue of
reviewability. See State v. Kephart, 

, 435 n 2,

 (1994) (noting that, before reviewing whether
the trial court failed to comply with the law in imposing
a sentence, this court will “determine whether review is
permitted”).
A.    Bar on Reviewability
      1.   Framework
          The authority of the Court of Appeals, and of this
court, to review defendant’s sentence is governed by ORS
138.105. See ORS 138.105(1) (“On appeal by a defendant,
the appellate court has authority to review the judgment or
order being appealed, subject to the provisions of this section.”). That statute authorizes appellate courts to review
a sentence “to determine whether the trial court failed to
comply with requirements of law in imposing or failing to
impose a sentence.” ORS 135.105(7).
          The statutory authority to review sentences, however, is subject to exceptions. 

 At issue here is the exception set out in ORS 138.105(9), which provides:
        “The appellate court has no authority to review any
     part of a sentence resulting from a stipulated sentencing
     agreement between the state and the defendant.”
         As set out above, the parties had agreed that the
court “could impose consecutive sentences” in the event
that it revoked defendant’s probation, although defendant
reserved the right to argue against consecutive sentences.
According to the state, that agreement was a “stipulated sentencing agreement” within the meaning of ORS 138.105(9),
and bars review of defendant’s challenge to the consecutive
terms of incarceration. Defendant responds with multiple
684                                                          State v. Rusen

alternative arguments for why ORS 138.105(9) does not preclude his challenge to the consecutive terms of incarceration, including that—as the Court of Appeals reasoned—the
sentence did not result from a “stipulated sentencing agreement” because the parties’ agreement left defendant free to
argue that the court should not impose consecutive terms of
incarceration.3
         The dispute in this case, therefore, centers on the
meaning of the phrase “any part of a sentence resulting
from a stipulated sentencing agreement,” as used in ORS
138.105(9). As with all questions of statutory construction,
our “paramount goal” is to discern the intent of the legislature, and we pursue that goal by employing the analytical framework described in PGE v. Bureau of Labor and
Industries, 

, 

 (1993), and modified
in State v. Gaines, 

, 

 (2009). Within
that framework, we focus on the text and context of the statute, and we consider legislative history that “appears useful
to the court’s analysis.” 

.
      2. Text and context
          The text on which we focus here is the product of
multiple legislative enactments. Although the legislature
enacted ORS 138.105(9) in 2017, the legislature enacted the
first iteration of that bar to reviewability in 1989, as part of
statutory changes to implement the sentencing guidelines.
Or Laws 1989, ch 790, § 21(2)(d), codified as former ORS
138.222(2)(d) (1989). In that first iteration, the provision
barred review of “[a]ny sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” Id. The legislature
amended the reviewability bar in 1993 so that—as now—it
precluded appellate review of sentences “resulting from a
stipulated sentencing agreement.” See Or Laws 1993, ch 698,
§ 1(2)(d), codified as former ORS 138.222(2)(d) (1993) (precluding appellate review of “[a]ny sentence resulting from
    3
      In addition to his statutory construction arguments, defendant contends
that the plea agreement was not a waiver of his right to challenge a sentence in
violation of the guidelines rule, and he argues that denying appellate review of
his sentences would violate state and federal constitutional provisions. Because
we agree with defendant that his sentence does not result from a “stipulated sentencing agreement,” we do not address his other two arguments.
Cite as 

 (2022)                                  685

a stipulated sentencing agreement between the state and
the defendant which the sentencing court approves on the
record”). Finally, the legislature in 2017 added the phrase
“any part of a sentence.” Or Laws 2017, ch 529, § 13(9). We
have previously construed both prior versions of the statute,
and our understanding of ORS 138.105(9) is significantly
informed by our prior constructions of its predecessors. See
State v. Cloutier, 

, 

 (2011) (“Our
analysis of [the statute] is also informed by this court’s prior
construction of that statute or its predecessors.”); see also
Lindell v. Kalugin, 

, 

 (2013)
(“Case law existing at the time of the adoption” of the rule or
statute “forms a part of the context.”).
         This court first construed the reviewability bar
in State v. Adams, 

, 

 (1993), in
which we held that former ORS 138.222(2)(d) (1989)—when
applicable—precluded review of a component term of a sentence to which the parties had specifically agreed. In Adams,
the defendant and the state had stipulated to a specific grid
block classification and to a sentence of 84 months’ incarceration, which fell within the presumptive range for the
stipulated grid block. 

. The trial court imposed
a sentence that carried out those stipulations. 

.
Despite the stipulation, the defendant argued on appeal
that his criminal history score required the court to place
him in a lower grid block than that to which the parties
had stipulated. 

. In an attempt to get around the
reviewability bar of former ORS 138.222(2)(d) (1989), the
defendant argued that the provision should be understood
to preclude only challenges to the length of a sentence. 

. But this court in Adams rejected the defendant’s proposed reading of the statute and concluded, instead, that
the statute precluded review of the trial court’s decision to
use the grid block classification to which the parties had
expressly stipulated. 

. Among other rationales,
the court explained that the defendant’s proposed reading
of the statute would “create an anomaly” in that the defendant would receive the “full benefit” of his agreement with
the state (“the opportunity to plead to” a lesser offense),
“while the state would be deprived of its side of the bargain
(… the certainty of a stipulated sentence without the
686                                             State v. Rusen

need to prove that a departure sentence was warranted).”

          Our decision in Adams did not address the standards for assessing whether a defendant has entered into
“an agreement” that would trigger the bar to review—then
set out in former ORS 138.222(2)(d) (1989). The defendant
had not denied that he had entered “an agreement” to which
the bar applied, and, therefore, Adams addressed only the
nature or scope of the applicable bar. By the time that this
court addressed the question whether an “agreement” is sufficient to trigger the bar, the 1993 Legislative Assembly had
replaced “an agreement” with the current wording, which
precludes appellate review of a sentence resulting from “a
stipulated sentencing agreement.” See Or Laws 1993, ch 698,
§ 1(2)(d) (making that change to former ORS 138.222(2)(d));
ORS 138.105(9) (setting out current wording, under renumbered statute).
         This court considered the meaning of the new term
“stipulated sentencing agreement” in Kephart, 

,
and that decision is central to resolving the parties’ dispute
in this case. The defendant in Kephart entered into a plea
agreement with the state under which the defendant pleaded
guilty to numerous felony charges, all but one of which were
governed by the sentencing guidelines. 

. The
parties did not stipulate to grid blocks or to any other aspect
of the sentences for the individual offenses, but they agreed
that the parties would “seek and obtain approval by the
Court to limit the defendant’s exposure at sentencing” to a
total sentence of no more than 50 years for all offenses. 

. The trial court imposed a sentence that totaled exactly
50 years’ incarceration for all “guilty” counts combined. 

. The court had reached that total by using the guidelines
grid block method to determine the presumptive sentence for
each offense, but the court had calculated the applicable grid
blocks for each offense through a “then-controversial practice” of using some of the new convictions to increase the
defendant’s criminal history score. 

 The Court of Appeals
held that the sentence was not reviewable. 

         On review, this court first concluded in Kephart that
the reviewability question was governed by the 1993 version
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of former ORS 138.222(2)(d), which made the bar applicable
only to a “stipulated sentencing agreement.” Id. at 440. This
court then concluded that the defendant’s agreement with
the state to the maximum total sentence had not constituted
a “stipulated sentencing agreement,” and therefore did not
preclude review of his challenge to the sentence. Id. at 447.
The opinion explains that, although the term “stipulated
sentencing agreement” is not statutorily defined, the statutory text and context indicate that the legislature intended
to define “a narrower class of agreements.” Id. at 441.
         For context, the court looked to another statute—
ORS 135.407—which “describes several ways in which the
state and a defendant may ‘stipulate’ to a sentence” that
is subject to the guidelines. Id. at 441-42. As this court
explained, ORS 135.407 specifies that the parties “may stipulate to” various terms that make up a guidelines sentence:
The parties may stipulate to a defendant’s grid block classification “for the purpose of obtaining the presumptive sentence under that grid block” (ORS 135.407(2)); the parties
may stipulate to “a specific sentence within the presumptive range” for the grid block classification (ORS 135.407(4));
and the parties may stipulate to a “sentence outside the presumptive sentence range”—a so-called “departure sentence”
(ORS 135.407(5)).4 Kephart, 

. As a result,
   4
     ORS 135.407 has not been amended since enacted in 1989. In its entirety,
ORS 135.407 provides:
       “In cases arising from felonies committed on or after November 1, 1989:
       “(1) Whenever a plea agreement is presented to the sentencing judge,
   the defendant’s criminal history classification, as set forth in the rules of
   the Oregon Criminal Justice Commission, shall be accurately represented to
   the trial judge in the plea agreement. If a controversy exists as to whether a
   prior conviction or juvenile adjudication should be included in the defendant’s
   criminal history, or as to its classification under rules of the Oregon Criminal
   Justice Commission, the district attorney and the defendant may stipulate to
   the inclusion, exclusion or classification of the conviction or adjudication as
   part of the plea agreement subject to approval of the court.
       “(2) The district attorney and the defendant may stipulate to the grid
   block classification within the sentencing guidelines grid established by the
   rules of the Oregon Criminal Justice Commission that will provide the presumptive sentence range for the offender. The sentencing judge may accept
   the stipulated classification and impose the presumptive sentence provided
   in the rules of the Oregon Criminal Justice Commission for that grid block.
       “(3) If the district attorney and the defendant stipulate to a grid block
   classification within the sentencing guidelines grid, and the sentencing
688                                                         State v. Rusen

the court concluded that the statutory context, “including
the examples of stipulated sentencing agreements in ORS
135.407, confirms that the legislature intended to narrow
the class of agreements that would preclude judicial review.”

.
         The court in Kephart also analyzed the legislative
history of the bill that had proposed the amendment to
replace “agreement” with “stipulated sentencing agreement” in former ORS 138.222(2)(d). From the legislative history, this court concluded “that the proponents intended the
amendment to permit appellate review of ‘illegal’ sentences,
unless the defendant agreed to that sentence ahead of time
as part of a ‘stipulated sentencing agreement.’ ” 

 at 445
(quoting Tape Recording, Senate Committee on Judiciary,
HB 2256, July 27, 1993, Tape 232, Side B (statement of Ross
Shepard)). The court explained that the bill to amend the
statute was proposed in “the waning days of the 1993 legislative session” in response to a group of decisions that the
Court of Appeals had issued early in 1993. 

; see
also 

 at 443-46 (citing and discussing State v. Johnston,

, 

 (1993), State v. Kilborn, 

, 

 (1993), and State v. Tanner, 

, 

 (1993)). Proponents of the bill from
both the Oregon Criminal Defense Lawyers Association
and the Oregon District Attorneys Association explained
that a “problem” had “recently arisen in a series of appellate cases” in which the Court of Appeals had broadly interpreted the kind of “agreement” that will bar reviewability,
that the interpretation would cause lawyers to avoid plea

   judge accepts the stipulated classification but imposes a sentence other than
   the presumptive sentence provided by rules of the Oregon Criminal Justice
   Commission, the sentence is a departure sentence and is subject to rules of
   the Oregon Criminal Justice Commission related to departures.
       “(4) The district attorney and defendant may stipulate to a specific sentence within the presumptive range provided by rules of the Oregon Criminal
   Justice Commission for the stipulated offender classification. If the sentencing judge accepts the plea agreement, the judge shall impose the stipulated
   sentence.
       “(5) The district attorney and the defendant may stipulate to a sentence
   outside the presumptive sentence range for a stipulated grid block classification. The sentencing judge may accept an agreement for an optional probationary sentence or a departure sentence as provided in rules of the Oregon
   Criminal Justice Commission.”
Cite as 

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agreements, and that the bill was intended to “reverse” that
“broad interpretation of the statute.” Kephart, 

 (internal quotation marks and citation omitted). The
holdings in the Court of Appeals cases were, thus, central
to this court’s understanding of what the legislature had
intended to accomplish by limiting the reviewability bar
of former ORS 138.222(2)(d) to sentences resulting from a
“stipulated sentencing agreement.” 

.

         In the first Court of Appeals case, Johnston, the
defendant was convicted of three counts of first-degree robbery pursuant to a plea agreement in which the parties
had stipulated to the grid block classification that the court
would use to calculate the sentence and had stipulated that
the state could recommend a maximum sentence of 108
months, which was a departure from the presumptive sentence. 120 Or App at 167. The trial court imposed departure
sentences that totaled exactly 108 months, and the defendant challenged the departures on appeal. Id. at 167. But
the Court of Appeals held that former ORS 138.222(2)(d)
(1989) barred review. Id. at 169. The Court of Appeals in
Johnston recognized that, because the parties’ agreement
did not preclude the defendant from trying “to persuade the
court to impose a sentence other than the one recommended
by the state,” it could “be argued that the defendant has
not ‘bargained’ for the actual sentence to be imposed.” Id. at
168. The court concluded, however, that the legislature had
intended former ORS 138.222(2)(d) (1989) to bar review of
that kind of “agreement.” Id. at 169. As this court concluded
in Kephart, the 1993 amendment to the statute “was drafted
to prevent such a result.” 

.

         In Kilborn, the Court of Appeals relied on its decision in Johnston to conclude that the state could not obtain
review of the trial court’s imposition of a probationary sentence, because the plea agreement had included the state’s
promise to make “no recommendations” as to the sentence.
120 Or App at 464 (internal quotation marks omitted). The
Court of Appeals recognized that the sentence of probation
was not “an agreed upon sentence,” but it concluded that the
sentence was unreviewable because the state’s “silence as
to” incarceration “was part of the bargain” that the parties
690                                            State v. Rusen

had reached. Id. As this court reasoned in Kephart, the
Court of Appeals in Kilborn had “completely ignored ORS
135.407” and had concluded that review was barred despite
the “lack of an agreed upon sentence.” 

(internal quotation marks omitted). The “legislative history
of [former] ORS 138.222(2)(d) (1993),” this court concluded,
“tells us that the legislature intended to reverse the result.”

.

         And in Tanner, the Court of Appeals held that it
lacked authority to review the defendant’s claim of an illegal guidelines sentence because, “in exchange for the state’s
agreement not to indict” the defendant on uncharged felonies, the defendant had agreed to a stipulated facts trial
and had agreed to admit to liability for both the charged
and uncharged felonies at sentencing, for purposes of setting
restitution. 

. The Court of Appeals relied
on its decisions in both Johnston and Kilborn to conclude
that the defendant’s “sentence ‘resulted from’ the negotiated
agreement with the state and,” therefore, was not reviewable. 

. According to this court in Kephart, the
decision in Tanner illustrated the outcome that the legislature intended to prevent with the 1993 amendment to former ORS 138.222(2)(d). 

.

         The 1993 legislative history also made clear, however, that the drafters of the 1993 amendment had intended
to preserve the result of this court’s decision in Adams. See
Kephart, 

-44 (quoting and citing statements
by representatives from both the Oregon Criminal Defense
Lawyers Association and the Oregon District Attorneys
Association). As described above, the defendant in Adams
had stipulated to both the grid block classification that the
court should use and to the specific sentence that the court
should choose from within the presumptive range for that
stipulated grid block, but he nevertheless sought to challenge
the grid block classification on appeal. 

.
This court had determined that former ORS 138.222(2)(d)
(1989) precluded review of the trial court’s decision to calculate the defendant’s sentence using the grid block classification to which the parties had expressly stipulated. 

.
Cite as 

 (2022)                                  691

         Notably, both of the sentencing stipulations in Adams
were stipulations described in ORS 135.407—stipulations
as to grid block and as to the specific sentence within the
presumptive range for that grid block. ORS 135.407(2), (4).
By contrast, as this court reasoned in Kephart, the problematic Court of Appeals cases had “strayed from the statutory
guidelines set out in ORS 135.407.” 

. And,
given the legislature’s intent to change the results of those
Court of Appeals cases, while also preserving the result in
Adams, this court in Kephart concluded that “the legislature intended [the 1993 amendments to the reviewability
statute] to allow review of sentences unless they were ‘stipulated sentences’ as illustrated in ORS 135.407.” 

.
When the court then applied that understanding of “stipulated sentencing agreement” to the plea agreement at issue
in Kephart—a stipulation to the maximum total sentence
length that the court could impose—this court readily concluded that it was “not a stipulation as to sentencing of a kind
described by ORS 135.407 and, because it is not, [former]
ORS 138.222(2)(d) (1993) does not preclude review.” 

         The same day that this court decided Kephart, it
decided a related case that provides some additional insight
into the boundaries of what constitutes a “stipulated sentencing agreement” that will bar review. State v. Martin, 

, 

 (1994). In Martin, the defendant had
pleaded no contest to first-degree sodomy and first-degree
sexual abuse, pursuant to a plea agreement. 

. As
part of the agreement, the parties stipulated to the crime
seriousness level that should be assigned to the offenses, but
they did not stipulate to the defendant’s criminal history
score. 

 At sentencing, the trial court employed the same
method to adjust the defendant’s criminal history score as
had the trial court in Kephart. 

 As in Kephart, the defendant appealed to challenge the court’s calculation of his
criminal history score, and the Court of Appeals concluded
that the challenge was not reviewable. 

         Although this court in Martin ultimately concluded
that the sentence was unreviewable under a different subsection of former ORS 138.222 (1993)—because it was a “ ‘sentence that is within the presumptive sentence’ ”—this court
692                                             State v. Rusen

first addressed whether former ORS 138.222(2)(d) (1993)
barred review. 

 at 451 (quoting former ORS 138.222(2)(a)
(1993)). And we concluded that former ORS 138.222(2)(d)
(1993) did not bar review because, “[a]s in State v. Kephart,
this defendant cannot be said to have made a ‘stipulated sentencing agreement’ as provided in [former] ORS 138.222(2)(d)
(1993). Defendant’s agreement does not comport with any
of the types of stipulations set out in ORS 135.407.” 

.
         Our constructions of the reviewability bar in
Kephart and Martin, as well as subsequent decisions from
the Court of Appeals, inform our understanding of what
the legislature intended when it enacted the current bar to
review of “part of a sentence resulting from a stipulated sentencing agreement,” ORS 138.105(9). See Lindell, 

 (explaining that “[c]ase law existing at the time of the
adoption” of the rule or statute “forms a part of the context”).
As explained above, the legislature adopted the current version of the statute, which applies in this case, in 2017 when
it repealed former ORS 138.222(2)(d) (1993) and enacted
ORS 138.105(9) in its place. Or Laws 2017, ch 529, § 13(9).
The current bar to reviewability was part of a 2017 bill that
revised and reorganized the statutes governing criminal
appeals, Senate Bill 896 (2017). In addition to retaining the
wording that this court construed in Kephart and Martin,
the legislature made explicit that the statute bars review of
“any part of a sentence resulting from a stipulated sentencing agreement.” Or Laws 2017, ch 529, § 13(9), codified as
ORS 138.105(9) (emphasis added).
         The history for the 2017 enactment indicates that
the legislature intended to “restate the limits on reviewability currently set forth in [former] ORS 138.222(2)(d) [(1993)]”
and that the new emphasis on barring review of “any part of
a sentence” was “not intended to change current law.” Report
of the Direct Criminal Appeals Work Group on SB 896 (2017),
Oregon Law Commission, 21 (emphasis added). The existing
“limits on reviewability” in 2017 included those identified
by this court in Kephart and Martin, as well as those articulated in two decisions from the Court of Appeals, in which
that court had held that former ORS 138.222(2)(d) (1993) did
not “preclude review of a portion of a sentence that was not
Cite as 

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agreed to between the state and a defendant.” State v. Capri,

, 

 (2012) (citing State
v. Davis, 

, 

 (1995)). As a
work group explained to the legislature, “[t]he addition of
the phrase ‘any part of a’ before ‘sentence’ ” was added “to
make explicit the conclusion in State v. Capri … and State
v. Davis … that any portion of a sentence not agreed to
between the state and a defendant is reviewable.” Report of
the Direct Criminal Appeals Work Group on SB 896 (2017) at
21-22.
         In light of the many indications of legislative intent
that we have explored above, we conclude that the scope of
the bar to appellate review—now set out in ORS 138.105(9)—
is limited in the way that this court described in Kephart
and Martin (and that the Court of Appeals later described
in Capri and Davis). The bar applies only when the parties’ agreement is “a stipulation as to sentencing of a kind
described by ORS 135.407.” Kephart, 

.
         Defendant argues that, at a minimum, Kephart’s
conclusion that “stipulated sentencing agreement” means
agreements “of a kind described by ORS 135.407” excludes
agreements that address how the court could decide a sentencing issue but leave the parties free to attempt to persuade the court how it should decide the sentencing issue—
like the parties’ agreement in Kephart that the trial court
could impose a total sentence of up to 50 years but that the
defendant could argue for a shorter total sentence. And
defendant contends that, similarly, the agreement here
regarding the issue of consecutive sentences is at most an
agreement that the trial court could impose consecutive sentences, leaving defendant free to argue that the court should
not impose consecutive sentences.
         Defendant’s framing accurately reflects our conclusion and analysis in Kephart, which made clear that the bar
on reviewability applies only if “certain specific stipulations,
like those in ORS 135.407, are made.” 320 Or at 446 (emphasis added).5 All the stipulations described in ORS 135.407
    5
      Defendant alternatively proposes that a “stipulated sentencing agreement”
should be understood as limited to the stipulations expressly listed in ORS
135.407, none of which mention consecutive or concurrent terms. He believes
694                                                        State v. Rusen

that are highlighted in Kephart—stipulations as to grid
block classification, as to a sentence within the presumptive
range, and as to a departure sentence—are stipulations to a
specific decision that the court should make in calculating a
sentence; none describes agreements that leave open—and
subject to competing argument—what the court ultimately
should decide. Defendant’s framing also accurately reflects
our conclusion in Kephart that the legislature intended to
prevent the result of cases like Johnston, in which the Court
of Appeals held that the parties’ agreement that the state
could recommend a maximum total sentence precluded
review of a claim that the court violated the guidelines
in imposing that total sentence. Kephart, 

;
Johnston, 

.
         The state disagrees with that scope. According to
the state, because the parties’ agreement is an agreement
“regarding” the issue of consecutive or concurrent sentences,
the agreement is a “stipulated sentencing agreement,” barring review of the court’s decision to impose consecutive
terms. This court, however, rejected such a broad interpretation of “stipulated sentencing agreement” in Kephart and
Martin. As those cases demonstrate, not all agreements
with stipulations “regarding” sentencing are “stipulated
sentencing agreements” for purposes of precluding appellate
review. In Kephart, for example, the parties stipulated that
the trial court could impose a total sentence of 50 years,
and the court sentenced the defendant to a total of 50 years.
320 Or at 439. But that agreement did not preclude appellate review of whether the court correctly calculated the
defendant’s criminal history score—as part of calculating
the total sentence of 50 years—because the agreement that
the court could impose a particular total sentence was “not
a stipulation as to sentencing of a kind described by ORS
135.407.” Id. at 447.

that that meaning is more consistent with our conclusion in Kephart, although
the Court of Appeals has held otherwise. See, e.g., State v. Upton, 

, 

 (1995) (concluding that ORS 135.407 is merely representative of the class of stipulations that bar review under ORS 138.105(9)). But
there is no need to determine in this case whether the stipulations identified in ORS 135.407 are illustrative, or definitive, of the type of “stipulated
sentencing agreement” that will bar review, and we decline to resolve that
question.
Cite as 

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         Although the state emphasizes that a sentencing
judge is not bound to accept even the stipulations described
in ORS 135.407, that argument misses the point. When a
trial court accepts the parties’ stipulation to a specific sentence, or to a specific grid block that the court should use
to calculate a sentence, it is resolving that sentencing issue
exactly how the parties have agreed the court should resolve
that issue, and the legislature has determined that there is
no role for judicial review of that agreed-upon part of the
sentence. But when the parties merely agree on parameters
for how the court could decide a sentencing issue, leaving
room for the parties to argue about how the court should
decide the issue, then, however the court ultimately decides
the issue, the parties will not have agreed in advance to that
sentence.
         We emphasize that reviewability is only a threshold issue. Agreements that do not meet the test that we
have articulated for a “stipulated sentencing agreement”
might still create obstacles to a successful appellate challenge, possibly including lack of preservation, estoppel, or
invited error, but those obstacles do not trigger the absolute
bar to appellate review that is imposed by ORS 138.105(9).6
We conclude that construing ORS 138.105(9) to permit
review of sentencing decisions to which the parties did not
specifically agree in advance is consistent with what this
court repeatedly emphasized in Kephart to be the intent of
the proponents of the “stipulated sentencing agreement”
requirement: “to permit appellate review of ‘illegal’ sentences, unless the defendant agreed to that sentence ahead
of time[.]” 320 Or at 445 (emphasis added). At a minimum,
ORS 138.105(9) precludes review of a sentencing challenge
only when two conditions are met. First, the parties must
have agreed to a specific sentence, or to a specific component
that the court used to calculate the sentence—such as the

    6
      The Kilborn case decided by the Court of Appeals may be a good illustration
of the difference between reviewability and other bars to a successful appellate
challenge. The state’s agreement to remain “silent” when the court imposed a
sentence of probation would present a classic preservation obstacle to challenging the ruling on appeal. But the legislature did not intend to bar review of that
challenge. See Kephart, 

 (concluding that the “legislative history of
[former] ORS 138.222(2)(d) (1993) tells us that the legislature intended to reverse
the result” of Kilborn).
696                                            State v. Rusen

grid block classification. Second, the bar applies to preclude
review only of the part of the sentence on which the parties
agreed.
      3. The parties’ agreement
         Those conclusions make clear that the pertinent
inquiry here must focus on the parties’ agreement with
respect to consecutive incarceration terms—because that is
the part of the sentence for which defendant seeks review.
As noted earlier, the parties agreed as part of defendant’s
plea agreement that, if the court later revoked defendant’s
probation, “the court could impose consecutive sentences.”
In other words, and importantly, the parties did not agree
that defendant would receive consecutive sentences. Instead,
as the Court of Appeals described the nature of the agreement, they agreed that “the state could argue for consecutive sentences and defendant could argue for concurrent
ones,” and resolution of any dispute would be left to the trial
court. Rusen, 

. That lack of specificity with
respect to that term of the sentence, the Court of Appeals
concluded, meant that there was no “stipulated sentencing
agreement” that barred review of the consecutive sentences.

          We agree with that conclusion. In this case, the
parties agreed that the trial court could impose consecutive terms of incarceration as probation revocation sanctions. But they also agreed that defendant would be free to
argue that the court should not impose consecutive terms of
incarceration, leaving resolution of that issue to the court.
As a result, the court’s ruling regarding the issue of consecutive or concurrent incarceration terms is not the product
of a “stipulated sentencing agreement,” and ORS 138.105(9)
does not bar review of defendant’s challenge to that part of
the sentence.
B.    The Court’s Authority to Impose Consecutive Sentences
        Having determined that defendant’s sentence is
reviewable, we now consider the parties’ arguments regarding whether the trial court properly imposed consecutive
terms of incarceration upon revoking defendant’s probation.
As noted above, the trial court initially sentenced defendant
Cite as 

 (2022)                                                 697

to four concurrent terms of probation for separate offenses
committed on different days. The trial court revoked those
terms of probation based on a single probation violation and
imposed consecutive terms of incarceration as probation
revocation sanctions. Under those facts, the merits question
is whether the trial court had authority to impose consecutive terms of incarceration or, instead, was required to
impose concurrent terms of incarceration.
         Probation revocation sanctions are generally governed by the sentencing guidelines rules, which were first
drafted by the Criminal Justice Commission, adopted by the
State Sentencing Guidelines Board, and then approved by
the legislature in 1989. As a result, they have the force of
statute. See 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.”). “For
defendants sentenced for felonies committed on or after
November 1, 1989,” a trial court imposing probation revocation sanctions is directed to the guidelines rules by ORS
137.545(5)(b), which provides that “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.” (Emphasis added.)7
        Among those rules is OAR 213-012-0040(2), which
addresses both how to calculate the length of probation revocation sanctions where the defendant is serving multiple
terms of probation and whether the trial court may impose
those sanctions concurrently or consecutively:
      “(2) When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose
   revocation sanctions for supervision violations as provided
   by OAR 213-010-0002 for the violation of each separate
   term of probationary supervision.
       “(a) If more than one term of probationary supervision is revoked for a single supervision violation, the

    7
       There is an exception to ORS 137.545(5)(b)—not applicable to the offenses
of which defendant was convicted—under which “the court shall revoke” probation if a defendant who was sentenced to probation commits a new crime. ORS
137.712(5).
698                                                          State v. Rusen

    sentencing judge shall impose the incarceration sanctions
    concurrently.
        “(b) If more than one term of probationary supervision
    is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively.”
         Here, there is no dispute that the trial court properly calculated the length of defendant’s probation revocation sanctions. But defendant maintains that the trial court
violated paragraph (2)(a) in requiring defendant to serve
those sentences consecutively. According to defendant, a
trial court has the discretion to impose consecutive revocation sanctions only if, as specified in paragraph (2)(b), the
trial court revokes the terms of probation based on separate
probation violations. Because the state does not dispute that
the trial court revoked defendant’s four terms of probation
based on a single probation violation, defendant contends
that the trial court erred in imposing the incarceration
terms consecutively.
         The state points to a potential conflict between
OAR 213-012-0040(2)(a) and a different provision that, it
contends, authorized the court to impose consecutive sentences. Specifically, the state relies on OAR 213-012-0010,
which provides that, “[w]hen multiple convictions have been
entered against a single defendant, the sentencing judge
may impose consecutive or concurrent sentences as provided
by ORS 137.123 and 137.370.” In turn, ORS 137.123(2) provides that a court may impose either concurrent or consecutive sentences “[i]f a defendant is simultaneously sentenced
for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct.” In this case,
because defendant does not dispute that his underlying convictions did “not arise from the same continuous and uninterrupted course of conduct,” the state maintains that OAR
213-012-0010 (with its incorporation of ORS 137.123(2)) gave
the trial court the discretion to impose either concurrent or
consecutive sentences as probation revocation sanctions.8
    8
      In its briefing to this court, the state argues that ORS 137.123(2) directly
applied to authorize the trial court’s imposition of consecutive probation revocation sanctions. The state, as a result, presents an argument about the scope
of ORS 137.123(2) based on State v. Lane, 

, 

 (2015). In
Cite as 

 (2022)                                                      699

          We have previously emphasized that, when multiple
statutory provisions potentially conflict, “if the court can give
full effect to both statutes, it will do so.” Powers v. Quigley,

, 

 (2008); see also ORS 174.010
(specifying that, “where there are several provisions or particulars such construction is, if possible, to be adopted as will
give effect to all”). The state proposes that we can harmonize
the potentially conflicting provisions regarding consecutive
sentences by understanding both as giving the court alternative sources of authority to impose consecutive sentences
upon revocation of probation—“either because the defendant
committed the crimes during separate criminal episodes
(ORS 137.123(2)) or because he committed more than one violation of probation.” (Emphasis added.) But the state’s proposal would require us to construe the provisions in ways
that the text, context, and legislative history do not support.
         The state first proposes that ORS 137.545(5)(b)—
which provides that the court “may revoke probation supervision and impose a sanction as provided by [the guidelines]”—
does not require a trial court to follow the guidelines when
imposing a probation revocation sanction. The state’s interpretation assumes that the provision’s use of “may” applies
independently to the two clauses that follow: (1) revoke probation supervision and (2) impose a sanction as provided by
rules of the Oregon Criminal Justice Commission. Thus,
the state reads the provision to provide that, upon finding
a probation violation, the trial court may or may not revoke
probation, and, if the trial court revokes probation, then the
trial court may or may not impose a sanction as provided by
the sentencing guidelines rules.
      The state’s reading is not required by the text of
ORS 137.545(5)(b) and is inconsistent with the provision’s

Lane, this court interpreted Article I, section 44(1)(b), of the Oregon Constitution,
which provides that “[n]o law shall limit a court’s authority to sentence a criminal defendant consecutively for crimes against different victims,” as applying to
probation revocation sanctions. The state argues that both the constitutional provision from Lane and ORS 137.123(2) were enacted by ballot initiative and should
be given similarly broad readings. However, as we just explained, the imposition
of probation revocation sanctions is governed by the sentencing rules. So, to the
extent that ORS 137.123(2) applies at all, it would apply only through OAR 213-
012-0010. The application of ORS 137.123(2) is therefore determined by the scope
of OAR 213-012-0010, which we address below.
700                                             State v. Rusen

legislative history. The text does not make clear whether
“may” gives the court discretion only with respect to the
issue of revoking probation or also with respect to whether to
follow the guidelines in the event of revocation. But it is clear
from the legislative history that the legislature intended to
authorize discretion only with respect to whether to revoke
probation. The legislature originally adopted a version of
that provision as part of the statutes to implement the sentencing guidelines in 1989. That revocation provision stated
that, upon finding a probation violation, the trial court
“shall revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice
Commission.” Or Laws 1989, ch 790, § 17(4)(b), codified as
former ORS 137.550(4)(b) (1989) (emphasis added). Although
the legislature amended the provision in the next session
to change “shall” to “may,” the legislative history of that
amendment indicates that the legislature did not intend to
make a substantive change to the requirement that, upon
revocation, the court shall “impose a sanction as provided by
[the guidelines].” Testimony in support of the 1991 amendment indicates that changing “shall” to “may” was, instead,
intended to ensure that judges retained their presentencing
guidelines discretion regarding whether to revoke probation, reflecting a recognition that not all probation violations
warrant revocation. See Tape Recording, Senate Committee
on Judiciary, SB 620, Feb 18, 1991, Tape 34, Side A (statement of Erik Wasmann) (“[J]udges should have the discretion to decide whether or not to revoke probation. It’s not
something that we want to mandate.”); Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, SB 620, Apr 24, 1991, Tape 65, Side A
(statement of David Foster) (noting that change from “shall”
to “may” makes “clear that the revocation of probation is
discretionary to the sentencing judge rather than mandatory”). There is no indication that the change to “may” was
intended to provide trial courts with authority to impose
sanctions outside the sentencing guidelines rules in the
event that they exercised discretion and revoked probation.
        Thus, under ORS 137.545(5)(b), upon finding a probation violation, a trial court may decide to revoke probation and impose a sanction as provided by the sentencing
Cite as 

 (2022)                                  701

guidelines rules, or the trial court may decide to not revoke
probation and not impose a sanction as provided by the sentencing guidelines rules. But the provision does not authorize a trial court to revoke probation and impose a sanction
other than those provided by the sentencing guidelines rules.
In combination with OAR 213-012-0040(2), the “sentencing
judge shall impose” concurrent terms of incarceration in the
event that it revokes more than one term of probation based
on “a single supervision violation”—as here. See Doyle v. City
of Medford, 

, 

 (2010) (“Ordinarily,
use of the word ‘shall’ implies that the legislature intended to
create an obligation[.]”). Indeed, this court repeatedly emphasized the mandatory nature of OAR 213-012-0040(2)(a)
in State v. Lane, 

, 

 (2015). See 

 (“Oregon’s sentencing guidelines provide that, if a
defendant with multiple terms of probation commits a single probation violation, any resulting terms of incarceration
must be imposed concurrently, not consecutively.” (Citing
OAR 213-012-0040(2)(a) (emphasis added).)); 

 (“In
this case, because OAR 213-012-0040(2)(a) limited the trial
court’s authority to sentence defendant consecutively for his
crimes against different victims, Article I, section 44(1)(b),
invalidated it.” (Emphasis added.)).

        The state also proposes that OAR 213-012-0010 and
OAR 213-012-0040(2)(a) can be harmonized by understanding the former as governing the imposition of consecutive
terms whenever the underlying offenses were separateepisode crimes, while understanding the latter to govern
the imposition of multiple probation revocation sanctions
in cases where the underlying offenses were single-episode
crimes. Here again, however, the state’s proposal would
require us to ascribe a meaning that we conclude the legislature did not intend.

         The state acknowledges that there is no textual
basis for limiting OAR 213-012-0040(2)(a) to single-episode
crimes and does not purport to offer one. Limiting OAR
213-012-0040(2)(a)’s requirement for concurrent probation
revocation sanctions to single-episode crimes would require
inserting what has been omitted, a path that we seek to
avoid in the construction of statutes. See ORS 174.010 (“In
702                                            State v. Rusen

the construction of a statute, the office of a judge is simply
to ascertain and declare what is, in terms or in substance,
contained therein, not to insert what has been omitted or to
omit what has been inserted[.]”).

         The state, nevertheless, contends that this court’s
decision in State v. Miller, 

, 

 (1993),
provides grounds for limiting OAR 213-012-0040(2)(a). In
Miller, this court held that a sentencing rule capping the
aggregate length of consecutive sentences to “twice the maximum presumptive incarceration term of the primary sentence,” OAR 253-12-020(2)(b) (1990), should be applied only
to single-episode crimes. 317 Or at 307. The court reached
that result after noting that the sentencing guidelines rules
were drafted before ORS 132.560 was amended to allow
crimes committed in separate episodes to be joined in a single indictment. Id. at 303. The court also relied on examples from the Sentencing Guidelines Implementation Manual
(1989), as context, to confirm that the sentencing rule was
intended to apply to single-episode crimes. Id. at 304-05.

         Nothing in Miller, however, states that all the original sentencing guidelines rules—drafted and approved in
1989—should be assumed to apply only to single-episode
crimes. After all, the bill amending the standards for joinder
and the bill approving the sentencing guidelines rules were
adopted in the same legislative session and went through
the same committees. See id. at 305 (“Discussion in the
legislative history of both of those bills indicates that the
relevant committee of the legislature was, while discussing
HB 2250 [(the sentencing guidelines bill)], aware of HB 2251
[(the liberal joinder bill)] and of its relation to the subject
of HB 2250.”). And the state in this case cites no examples
from the Sentencing Guidelines Implementation Manual,
like those that the court relied on in Miller, to establish
that OAR 213-012-0040(2)(a) was intended to apply only to
single-episode crimes. We therefore decline the state’s invitation to extend the reasoning of Miller to this case, and we
decline the state’s invitation to harmonize the apparently
conflicting provisions by treating the requirement of consecutive terms in OAR 213-012-0040(2) as either optional or
entirely inapplicable.
Cite as 

 (2022)                                                      703

         We are persuaded, however, that the provisions can
be harmonized in a different way. We conclude that OAR
213-012-0010 and OAR 213-012-0040(2) should be understood as addressing different stages of sentencing: the former rule applies to initial sentencing immediately following the convictions, while the latter rule refers to probation
revocation proceedings.
         That honors the text of OAR 213-012-0040(2),
which expressly governs probation revocation sanctions.
Subsection (2) governs how trial courts calculate the length
of the sanctions. Paragraphs (2)(a) and (2)(b) govern when
trial courts may impose those sanctions concurrently or consecutively. If multiple terms of probation are revoked for a
single violation, then the trial court must impose the sanctions concurrently. OAR 213-012-0040(2)(a).9 But if multiple
terms of probation are revoked for separate violations, then
the sanctions may be imposed either concurrently or consecutively. OAR 213-012-0040(2)(b).
         Conversely, OAR 213-012-0010 contains no similar
express text requiring its application to probation revocation sanctions. As noted above, OAR 213-012-0010 provides
that, “[w]hen multiple convictions have been entered against
a single defendant, the sentencing judge may impose consecutive or concurrent sentences as provided by ORS 137.123
and 137.370.” That failure to refer to probation revocation
proceedings is particularly significant in the context of OAR
213-012-0040(2), given that both rules were adopted by the
State Sentencing Guidelines Board at the same time and
approved by the legislature at the same time. See, e.g., State
v. Klein, 

, 

 (2012) (a statute’s
context includes “related statutes”). The context provided
by OAR 213-012-0040(2) suggests that OAR 213-012-0010
is intended to govern the imposition of concurrent or consecutive sentences upon the trial court entering multiple
convictions—that is, at the initial sentencing following the
     9
       The requirement of concurrent sanctions under OAR 213-012-0040(2)(a)
is subject to the constitutional limit identified in Lane. See 

 (invalidating the application of OAR 213-012-0040(2)(a) where it conflicts with Article I,
section 44(1)(b), of the Oregon Constitution, which provides that “[n]o law shall
limit a court’s authority to sentence a criminal defendant consecutively for crimes
against different victims”).
704                                            State v. Rusen

convictions—while OAR 213-012-0040(2)(a) and (b) are
intended to govern the imposition of concurrent or consecutive sanctions upon probation revocation.
         Interpreting OAR 213-012-0010 as governing the
initial sentence following conviction and OAR 213-012-
0040(2) as governing probation revocation sanctions reconciles the two provisions and gives meaning to the text of
both. See Lane County v. LCDC, 

, 

 (1997) (“[W]e do not look at one subsection of a statute in
a vacuum; rather, we construe each part together with the
other parts in an attempt to produce a harmonious whole.”).
And it is the same interpretation that has been applied by
the Court of Appeals for decades. See State v. Stokes, 

, 

 (1995) (interpreting OAR 213-012-
0010 as governing initial sentencing and interpreting OAR
213-012-0040 as governing probation revocation).
         We therefore reject the state’s argument that the
trial court’s imposition of consecutive probation revocation
sanctions is authorized by OAR 213-012-0010. Rather, as
defendant has argued, the imposition of consecutive probation revocation sanctions violates the requirement of OAR
213-012-0040(2)(a) that the court impose concurrent sanctions where multiple terms of probation have been revoked
for a single violation.
        The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.