State v. Logston

No. 32                       July 31, 2025                            101


             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review,
                             v.
                  JOHN W. LOGSTON,
                   Petitioner on Review.
         (CC 17CR60498) (CA A179285) (SC S070960)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted November 14, 2024.
    Joshua B. Crowther, Deputy Public Defender, Oregon
Public Defense Commission, Salem, argued the cause and
filed the briefs for petitioner on review. Also on the briefs
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
   Timothy Sylwester, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   GARRETT, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
   Duncan, J., concurred and filed an opinion.
  Bushong, J., concurred and filed an opinion, in which
James, and Masih, JJ., joined.




______________
   * Appeal from Lake County Circuit Court, David M. Vandenberg, Judge. 

 (2024) (nonprecedential memorandum opinion).
102   State v. Logston
Cite as 

 (2025)                                 103

        GARRETT, J.
         This criminal case requires us to decide whether
a trial court, after revoking a defendant’s probation, has
authority to impose a term of incarceration that is consecutive to a prison sentence imposed by another court in a different criminal case involving a different victim. The trial
court concluded that it had the authority to impose a consecutive sentence under those circumstances and did so. The
Court of Appeals affirmed. State v. Logston, 

(2024) (nonprecedential memorandum opinion).
         On review, defendant contends that the sentencing
guidelines rules that govern a trial court’s revocation of probation make no provision for ordering a prison term to run
consecutively to a previously imposed sentence in another
case. The state does not dispute that the guidelines specifically provide no such authority, but it makes two alternative
contentions. First, the guidelines authorized the trial court
to proceed in accordance with ORS 137.123, which generally
sets out the circumstances in which consecutive sentences
are allowed and specifically permits them for crimes against
different victims. Second, and in all events, the trial court’s
action was authorized under Article I, section 44(1)(b), of the
Oregon Constitution, which states that “[n]o law shall limit
a court’s authority to sentence a criminal defendant consecutively for crimes against different victims.”
          The parties’ arguments thus implicate both statutory and constitutional questions. Ordinarily, we would
address the statutory arguments first. See, e.g., Rico-Villalobos v. Giusto, 

, 

 (2005)
(“[I]f statutory sources of law provide a complete answer to
[a] legal question that a case presents, we ordinarily decide
the case on that basis, rather than turning to constitutional
provisions.”); see also State v. Turnidge (S059156), 

, 515 n 3, 

 (2016), cert den, 

 (2017)
(“That is a prudential rule, however, and it is not appropriate in every case.”).
        We choose a different approach in this case, because
we conclude, as did the Court of Appeals, that the constitutional question is resolved by this court’s decision in State
104                                                    State v. Logston

v. Lane, 

, 

 (2015). In Lane, this court
held that Article I, section 44(1)(b), superseded the sentencing guidelines to the extent that they would have prevented
a trial court from imposing consecutive sentences as a probation revocation sanction in a case with multiple victims.

. The present case differs only in that the trial
court ordered a sentence to run consecutively to one imposed
by a different court in a different case. As we will explain,
that factual difference provides no cognizable basis on which
to distinguish Lane. Accordingly, we affirm the decision of
the Court of Appeals and the judgment of the trial court.
                         I. BACKGROUND
         The facts are procedural, undisputed, and taken
from the trial court record and the parties’ arguments on
review. Defendant pleaded guilty in Lake County Circuit
Court to charges of attempted possession of heroin and
unlawful use of a vehicle (UUV) belonging to a named victim, Lindsey. Under the sentencing guidelines, the presumptive sentence for the UUV offense was a prison sentence, but
the trial court imposed a departure sentence of 24 months’
supervised probation in accordance with the terms of the
plea agreement.1 That agreement and the judgment that
the trial court subsequently entered after accepting defendant’s plea included defendant’s stipulation that he would
serve an 18-month prison term if the court ever revoked his
probation.
         While he was on probation, defendant was involved
in a serious automobile accident in Jefferson County, for
which a grand jury indicted him on two counts of second-degree assault, one count of third-degree assault, two counts
of failure to perform the duties of a driver (FPDD) when a
person is injured, and one count of felony fleeing or attempting to elude a police officer. The occupants of the other vehicle involved in the accident were two individuals named
Meriwether. Pursuant to a plea agreement, defendant
pleaded guilty to the two FPDD counts, and the Jefferson
County Circuit Court dismissed the other charges. That
    1
      The trial court imposed a concurrent 18-month sentence of probation on
the attempted possession of heroin charge, which was the presumptive sentence
under the sentencing guidelines for that charge.
Cite as 

 (2025)                                               105

court sentenced defendant to serve 45 months in prison on
one FPDD count and 30 months in prison on the other, with
the sentences to run consecutively to each other, for a total
sentence of 75 months in prison.
         Based in part on the Jefferson County convictions,
the Lake County court then revoked defendant’s probation in
the UUV case and imposed the 18-month term of imprisonment that had been part of the original plea agreement and
judgment.2 The state asked the court to make that term consecutive to the Jefferson County prison sentences, citing ORS
137.123(2) (court may impose a consecutive sentence “if the
defendant previously was sentenced by any other court within
the United States to a sentence which the defendant has not
yet completed”). Defendant objected, contending that the statute and sentencing guidelines rules, as construed by this court
in State v. Rusen, 

, 

 (2022), precluded
the trial court from imposing consecutive sentences.
         The trial court disagreed with defendant and
imposed the 18-month term of incarceration consecutive to
the Jefferson County sentences. Defendant appealed. The
Court of Appeals affirmed in a nonprecedential per curiam
opinion, summarily citing this court’s decision in Lane.
Logston, 

. We allowed defendant’s petition
for review.
                          II. DISCUSSION
A.    Article I, section 44, of the Oregon Constitution and
      State v. Lane
         Article I, section 44, was added to the Oregon
Constitution in 1999 by the voters’ passage of Ballot Measure
74 (1999), upon referral from the legislature. The text provides, in part:
        “(1)(a) A term of imprisonment imposed by a judge
     in open court may not be set aside or otherwise not carried out, except as authorized by the sentencing court or
     through the subsequent exercise of:

    2
      The Lake County supplemental probation revocation judgment also revoked
defendant’s concurrent probation on the attempted possession of heroin charge
and imposed a 90-day term of incarceration concurrent to the 18-month sentence
on the UUV charge.
106                                             State v. Logston

      “(A) The power of the Governor to grant reprieves,
   commutations and pardons; or
      “(B) Judicial authority to grant appellate or postconviction relief.
       “(b) No law shall limit a court’s authority to sentence a
   criminal defendant consecutively for crimes against different
   victims.”
(Emphasis added.)
         In Lane, the defendant had argued that Article I,
section 44(1)(b), which refers to a court’s authority to “sentence,” was inapplicable to a trial court’s imposition of a probation revocation “sanction,” which the defendant argued was
legally distinct from a “sentence.” 

. According
to the defendant, Oregon statutes and regulations revealed
an unambiguous distinction between imposing a sentence
for a crime and imposing a sanction upon the revocation of
probation. 

.
         In addressing the defendant’s arguments, we examined the historical context of Article I, section 44(1)(b),
including the statutes and regulations that existed in 1999.

. Contrary to the defendant’s arguments, we did
not “find such a clear distinction in the relevant statutes
and regulations.” 

. Instead, we noted that “a number of statutes describe the penalties for a probation violation as a ‘sanction,’ ” 

 but “other statutes and rules …
refer to the imposition of a sanction for probation violations
as ‘sentencing,’ ” 

. Thus, we thought that the voters who adopted Article I, section 44(1)(b), would not have
understood that there was “a well-established and ‘unambiguous’ distinction between imposing probation revocation
sanctions and sentencing.” 

. Rather, “the text in
context along with its enactment history reveal[ed] that
the voters most likely understood that the prohibition in
Article I, section 44(1)(b)—that no law may limit a court’s
authority to impose consecutive sentences for crimes against
multiple victims—applies to the imposition of probation violation sanctions.” 

.
         We went on to explain:
Cite as 

 (2025)                                          107

        “In reaching that conclusion, we emphasize that
     Article I, section 44(1)(b), does not necessarily require the
     imposition of consecutive sentences when there are multiple victims. By its terms it forecloses any other law from
     limiting a court’s authority to impose such sentencing
     where there are multiple victims.
         “In this case, because OAR 213-012-0040(2)(a) [(the
     same sentencing guidelines rule on which defendant relies
     in this case)] limited the trial court’s authority to sentence
     defendant consecutively for his crimes against different
     victims, Article I, section 44(1)(b), invalidated it. The trial
     court thus did not err in concluding that it has authority to
     impose consecutive sentences.”
Id. at 638-39 (emphases in original). We will discuss Lane’s
reasoning in greater detail below, in addressing defendant’s
arguments on review.
B.    Analysis
         Defendant contends that, upon revoking his probation, the Lake County court had no authority to impose a
term of incarceration that was consecutive to the Jefferson
County sentences. That argument proceeds in several steps.
First, defendant observes that, as this court explained in
Rusen, 

, Oregon’s sentencing scheme contemplates
two distinct pathways for imposing a term of imprisonment:
a sentence that is imposed when a person is convicted of a
crime, or a sanction that is imposed upon revocation of probation pursuant to ORS 137.545(5)(b). This case concerns
the second pathway.
         Second, defendant contends, a probation revocation sanction under ORS 137.545(5)(b) is governed by the
sentencing guidelines rules, which 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.” (Citing Or
Laws 1989, ch 790, § 87.)).
        Third, defendant continues, the sentencing guidelines provide for a consecutive prison term as a probation
revocation sanction in only one circumstance: where a trial
108                                          State v. Logston

court revokes multiple terms of probationary supervision
based on multiple violations. OAR 213-012-0040(2)(b).
         Fourth, defendant concludes, because the trial court
in this case revoked only a single term of supervision based
on defendant’s single violation, OAR 213-012-0040(2)(b) was
inapplicable to his probation revocation proceeding, and no
other rule allowed the trial court to order his incarceration
sanction to run consecutively to a prison sentence that he
was serving in a different case.
         In sum, defendant argues that the sentencing
guidelines provide the exclusive source of authority governing the trial court’s revocation of defendant’s probation and
that, because they make no provision for a sentence to run
consecutively to an existing sentence in another case, the
court lacked authority to order a consecutive sentence.
         The state disagrees with defendant’s view of the relevant statutes and sentencing guidelines, and it contends that
Rusen should essentially be limited to its facts. But the state
further argues that those arguments are beside the point
because, to the extent that any statute or guideline prevented
the trial court from ordering a consecutive sentence here,
that law is trumped by Article I, section 44, of the Oregon
Constitution, as construed by this court in Lane. We agree
with the state that Lane substantially resolves this case,
with the benefit of additional explanation provided below.
         In Lane, as noted above, the defendant had argued
that Article I, section 44(1)(b), was inapplicable to his probation revocation proceeding because it addressed only a
court’s authority to impose a “sentence” and not the authority to impose a “sanction” for revocation of probation. 

. We rejected that argument, concluding that the
provision “applies to the imposition of probation violation
sanctions.” 

. And, as noted above, we concluded by
explaining that, “because OAR 213-012-0040(2)(a) limited
the trial court’s authority to sentence [the] defendant consecutively for his crimes against different victims, Article I,
section 44(1)(b), invalidated it. The trial court thus did not
err in concluding that it has authority to impose consecutive
sentences.” 

.
Cite as 

 (2025)                                                    109

         Two principles follow directly from Lane. First, a
probation revocation sanction is a “sentence” for purposes
of Article I, section 44(1)(b); thus, under that provision, “no
law” can limit the authority of a court, having revoked probation, to impose a consecutive term of incarceration “where
there are multiple victims.” 

. Second, to the
extent that OAR 213-012-0040(2) would restrict a court’s
authority to impose a consecutive term, it yields to Article I,
section 44(1)(b), if there are multiple victims.
         In this case, the Lake County court revoked defendant’s probation for the UUV offense, for which Lindsey
was the victim. Defendant was serving an existing term
of incarceration for his convictions in the Jefferson County
case involving the Meriwethers. Under Article I, section
44(1)(b), as construed in Lane, because defendant’s offenses
involved multiple victims, “no law” could limit the Lake
County court’s authority to impose a prison term consecutive to the term defendant was already serving.3
         In arguing to the contrary, defendant contends that
Article I, section 44(1)(b), prohibits only laws limiting a trial
court’s existing authority; as worded, that provision does not
purport to grant authority to a court to impose consecutive
sentences. As defendant puts it, “[t]he provision presupposes
a scenario where the court has been given authority to impose
consecutive sentences and limits the legislature’s authority
to roll back that authority when there are multiple victims.”
Defendant bases that argument on the premise that the legislature must provide a positive grant of authority for a court
to punish a criminal defendant. See, e.g., State v. Leathers,

, 

 (1975) (“A sentence must be in
    3
      The state contends that consecutive sentences are permitted under
Article I, section 44(1)(b), if an individual is the victim of one offense and “the
state” is the victim of another offense. In support, the state relies on Article I,
section 44(3) (“As used in this section, ‘victim’ means any person determined
by the prosecuting attorney to have suffered direct financial, psychological or
physical harm as a result of a crime and, in the case of a victim who is a minor,
the legal guardian of the minor. In the event no person has been determined to
be a victim of the crime, the people of Oregon, represented by the prosecuting
attorney, are considered to be the victims.”). However, as we have noted, defendant’s offenses involved different individual victims. Nor does defendant dispute
that his convictions involved separate victims for purposes of Article I, section
44(1)(b). Accordingly, it is unnecessary to decide whether the state may also be a
separate victim for purposes of Article I, section 44(1)(b).
110                                                           State v. Logston

conformity with the governing statute; any non-conforming
sentence is void for lack of authority and thus totally without
legal effect.”). Here, defendant reasons, no legislative grant
of authority allows a trial court to impose, as a probation
revocation sanction, a term of imprisonment consecutively
to a sentence in another case, so Article I, section 44(1)(b), is
inapplicable. The state disagrees with that argument, reasoning that Lane establishes that the Lake County court’s
order was properly grounded in either its inherent authority,
Article I, section 44(1)(b), or both.
         The fundamental problem with defendant’s argument is that it is inconsistent with this court’s analysis
in Lane. In that case, this court explained that, because
OAR 213-012-0040(2)(a) “limited the trial court’s authority to sentence [the] defendant consecutively for his crimes
against different victims,” it was “invalidated” by Article I,
section 44(1)(b). 

. It followed that the trial
court “ha[d] authority to impose consecutive sentences.”

 (emphasis added). This court’s conclusion that the trial
court in Lane “ha[d] authority” followed directly from our
explanation that Article I, section 44(1)(b), “invalidated” any
law purporting to “limit” such authority. We saw no need to
go further, as defendant would have us do here, to determine
whether some other statute or guidelines rule provided an
express grant of authority to impose consecutive sentences
for offenses involving multiple victims.4
         We acknowledge defendant’s argument that, in the
most literal sense, Article I, section 44(1)(b), does not seem
to actively confer authority so much as it prohibits laws
that “limit” a court’s existing authority. But this court in
Lane was equally aware of that premise, yet it concluded
that the trial court “has authority” to impose a consecutive sentence, despite identifying no positive grant of legislative authority that covered the factual circumstances in
that case. Defendant has not argued that Lane’s reasoning
    4
      Defendant seeks to distinguish Lane by arguing that this court, in that
case, located “existing authority under the guidelines to impose multiple revocation sanctions consecutively” and that, because such authority existed, Article I,
section 44(1)(b), invalidated any statute or rule that restricted it. But defendant
does not further explain that contention, and, as we have explained, Lane did not
identify any positive source of authority, either in statute or in the guidelines, for
imposing consecutive sentences.
Cite as 

 (2025)                                    111

was incorrect or incomplete. In that case, this court seemingly understood Article I, section 44(1)(b), as a recognition
or declaration by the voters that courts have the authority,
which the legislature may not limit, to impose consecutive
sentences for crimes involving multiple victims. The failure
to phrase that constitutional provision more explicitly as an
affirmative grant was no impediment to our conclusion. As
we explain below, the phrasing may simply reflect the historical understanding that, as a matter of inherent authority,
courts possessed the discretion to choose between concurrent and consecutive sentences when a defendant committed legally distinct offenses. Lane did not discuss that history but is consistent with it. We now take this opportunity
to make clear what was implicit in Lane and, we think, necessary to this court’s holding in that case.
         As the United States Supreme Court has explained,
the common-law rule, still followed by a majority of states,
was to “entrust to judges’ unfettered discretion the decision
whether sentences for discrete offenses shall be served consecutively or concurrently.” Oregon v. Ice, 

,

, 

 (2009); see also 

 at 168-69
(citing Arthur W. Campbell, Law of Sentencing § 9:22, 425 (3d
ed 2004) (“Firmly rooted in common law is the principle that
the selection of either concurrent or consecutive sentences
rests within the discretion of sentencing judges.”)); Criminal
Law, 21A Am Jur 2d § 808, 23 (2016) (“It has been held that
a court has power derived from the common law to impose
cumulative or consecutive sentences …. … [U]nless
there is a statute to the contrary, it is within the trial court’s
sound discretion to determine whether a sentence should run
concurrently with or consecutively to another sentence[.]”).
         Older Oregon cases reflect that historical understanding. In State v. Jones, 

, 

 (1968),
this court considered the trial court’s imposition of a sentence consecutive to another sentence imposed in an earlier case. At the time, no statute specifically authorized the
imposition of consecutive sentences. Former ORS 137.160
(1959) had previously done so, but, in 1961, the legislature
repealed that statute, Or Laws 1961, ch 520, § 1. Jones,

. That action had been taken in response to a
112                                           State v. Logston

report from an interim legislative committee that had recommended repealing the statute (because of a concern about
some of its wording) and replacing it with a different one
that still authorized either concurrent or consecutive sentences. Id. at 60-61. Although the legislature repealed the
existing statute, it did not enact a replacement. Id. at 61.
This court did not view that omission as a barrier to the
imposition of a consecutive sentence:
   “[W]e feel certain that the legislature was aware that
   permissive legislation was not necessary. It is an inherent power of the court to impose sentences, including the
   choice of concurrent or consecutive terms when the occasion demands it. Accordingly, the legislature would have
   recognized that no legislation was needed to authorize the
   courts to exercise a power already in existence to impose
   either consecutive or concurrent sentences.”
Id. (citations omitted); see also Trahan v. Cupp, 

, 

 (1972) (citing Jones and other
cases for the proposition that “trial courts in Oregon have
inherent discretionary power to impose concurrent or consecutive sentences”).
         Some states, including Oregon, have departed from
the common-law model by statutorily curtailing a court’s
discretion to impose consecutive sentences. Ice, 

 (describing various state approaches, including
Oregon’s). In 1986, Oregon voters enacted what is now ORS
137.123, which provides that sentences are presumed to be
concurrent, unless the judgment expressly provides otherwise, and that consecutive sentences may be imposed only
as provided in that statute. ORS 137.123(1); see State v. Soto,

, 

 (2024) (describing history
of statute’s enactment). That statute further specifies that
consecutive sentences are permitted when a defendant is
“simultaneously sentenced for criminal offenses that do not
arise from the same continuous and uninterrupted course of
conduct, or if the defendant previously was sentenced by any
other court within the United States to a sentence which
the defendant has not yet completed,” ORS 137.123(2), and
that a consecutive sentence is required when a defendant
is sentenced while incarcerated after being sentenced for a
previous crime, ORS 137.123(3).
Cite as 

 (2025)                                       113

         ORS 137.123 also addresses what sentencing courts
may do when a defendant is convicted of more than one
offense arising from a “continuous and uninterrupted course
of conduct.” In such cases, sentences “shall be concurrent,”
ORS 137.123(4), unless the court makes one of the findings
described in subsection (5). That subsection provides:
       “The court has discretion to impose consecutive terms
   of imprisonment for separate convictions arising out of a
   continuous and uninterrupted course of conduct only if the
   court finds:
       “(a) That the criminal offense for which a consecutive
   sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the
   commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one
   criminal offense; or
      “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing
   greater or qualitatively different loss, injury or harm to the
   victim or caused or created a risk of causing loss, injury or
   harm to a different victim than was caused or threatened by
   the other offense or offenses committed during a continuous
   and uninterrupted course of conduct.”
(Emphasis added.) Thus, the statute provides that, even
where multiple convictions arise from a continuous and
uninterrupted course of conduct, such that concurrent sentences would ordinarily be required, consecutive sentences
are still authorized where multiple victims were involved.
That policy choice is consistent with the common-law rule
that offenses against different victims were considered
legally distinct even when arising from the same act, a rule
reflected elsewhere in Oregon’s criminal statutes. See, e.g.,
ORS 131.505(3) (“When the same conduct or criminal episode, though violating only one statutory provision, results
in death, injury, loss or other consequences of two or more
victims, and the result is an element of the offense defined,
there are as many offenses as there are victims.”).
        In sum, Oregon law has historically recognized the
common-law authority of a trial court to choose between
concurrent and consecutive sentences for legally distinct
114                                           State v. Logston

offenses. That inherent authority can be and has been circumscribed by legislative action in Oregon and in other
states, as recounted in Ice. In Oregon, ORS 137.123 generally lays out the circumstances in which consecutive sentences may be imposed. Those include situations in which
a defendant’s offense or offenses affected multiple victims.
ORS 137.123(5)(b).
         With that context, we return to the 1999 passage
of Measure 74, which added Article I, section 44(1)(b), to
the Oregon Constitution. As we discussed in Lane, that
provision appears to have had its origins as a reaction in
part to OAR 213-012-0040(2), the rule discussed above that
does not allow a trial court to impose consecutive sentences
as a probation revocation sanction unless the defendant
is serving multiple terms of supervision and has committed multiple violations. Lane, 

. That history
helps explain why the text of what became Article I, section
44(1)(b), was phrased in the negative, as a prohibition on
legislative restriction of a court’s authority to impose consecutive sentences where there are multiple victims. Defendant
may be correct that the text could more clearly reflect an
intention to confer authority. But the drafters’ decision not
to phrase the text in that manner is readily understandable
against the historical backdrop discussed above. Although
the relevant adoption history is “scant,” as we said in Lane,
it seems likely that the drafters would not have regarded
themselves as conferring authority so much as undoing a
legislative incursion on the inherent authority that courts
historically possessed, as recognized by this court in Jones.
The drafters also would have been aware of ORS 137.123(5),
which, as discussed above, does specifically authorize consecutive sentences for multiple victims. That provides additional reason to think that the drafters would not have
thought it necessary to confer authority so much as to make
it clear that legislative restrictions on such authority were
prohibited.
         Defendant acknowledges Jones but argues that
it should be limited to its “facts”; he contends that, “if the
legislature abolished the Oregon Revised Code or repealed
those statutes or rules covering a specific area, this court’s
Cite as 

 (2025)                                     115

inherent authority might fill in the gaps.” But that is essentially what Article I, section 44(1)(b), as construed in Lane,
accomplished. By adopting that provision, voters declared
that existing and prospective legislative restrictions on a
court’s authority to impose consecutive sentences for multiple victims were prohibited. The effect of constitutionally prohibiting such restrictions, understood in historical
context, was to restore the authority that courts possessed
before the legislature curtailed it.
                     III.   CONCLUSION
         In sum, Article I, section 44(1)(b), superseded the applicable sentencing guidelines rule, OAR 213-012-0040(2)(b),
to the extent that that rule prevented imposition of a consecutive sentence in defendant’s Lake County probation
revocation proceeding, when he also had been sentenced
in Jefferson County for crimes involving other victims. The
Lake County court therefore did not err when it imposed
a term of incarceration in defendant’s probation revocation
proceeding to run consecutively to his Jefferson County
sentences.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
         DUNCAN, J., concurring.
         The issue in this case is whether the trial court
erred when it ordered defendant to serve his probation revocation sanction in a Lake County case consecutively to a
sentence that defendant had just received for a conviction
in a Jefferson County case. Defendant has argued that the
trial court did not have authority to impose the consecutive sanction. In response, the state has argued that the
trial court had authority to impose the consecutive sanction under both a statutory provision, ORS 137.123, and a
constitutional provision, Article I, section 44(1)(b), of the
Oregon Constitution.
         The majority concludes that the trial court had
constitutional authority to impose the consecutive sanction
under Article I, section 44(1)(b). 

. The majority does not address whether the trial court had statutory
116                                           State v. Logston

authority, explaining that, even though “[o]rdinarily, [this
court] would address the statutory arguments first,” it is
appropriate to resolve this case based on the constitution,
because “the constitutional question is resolved by this
court’s decision in State v. Lane, 

, 

(2015).” 

. I agree with the majority’s conclusion that the trial court had the authority to impose the
consecutive sanction under Article I, section 44(1)(b). I also
agree with the majority’s conclusion that it is appropriate
to resolve this case based on the constitution. I write separately only to address Justice Bushong’s concurrence.
         His concurrence takes the position that we should
resolve this case based on the state’s statutory argument
and that we should hold that ORS 137.123 applies directly
to probation revocation sanctions. 

(Bushong, J., concurring). As I will explain in greater detail
below, this court has already rejected the position that ORS
137.123 applies directly to probation revocation sanctions.
We did so in State v. Rusen, 

, 

 (2022),
relying on a statute, ORS 137.545(5)(b), which provides that,
when a trial court revokes a defendant’s probation for a
crime that is subject to the felony sentencing guidelines, the
court may impose a sanction “as provided by” the guidelines
rules. Specifically, ORS 137.545(5)(b) provides:
       “For defendants sentenced for felonies committed on
   or after November 1, 1989 [‘guidelines crimes’], 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 [‘guidelines rules’].”
(Emphasis added.) Given the plain text of ORS 137.545(5)(b),
we held that, for guidelines crimes, the only way that ORS
137.123 could apply to probation revocation sanctions would
be if a guidelines rule that applied to such sanctions incorporated it. Rusen, 

. In other words, we held
that the only way that ORS 137.123 could apply to such
sanctions is if it applied indirectly, that is, through a guidelines rule. 

 We then reviewed the guidelines rules and
concluded that the rule that governs probation revocation
sanctions is OAR 213-012-0040, which does not incorporate
Cite as 

 (2025)                                  117

ORS 137.123. Id. at 703-04. Therefore, we rejected the state’s
argument that ORS 137.123 applies to probation revocation
sanctions, either directly or indirectly.
         Despite ORS 137.545(5)(b) and Rusen, Justice
Bushong’s concurrence would have this court hold that
ORS 137.123 applies directly to probation revocation sanctions. 

 (Bushong, J., concurring). As
his concurrence acknowledges, doing so would require
us to overrule Rusen’s holding that ORS 137.123 does not
apply directly to probation revocation sanctions. 

 But
no party in this case has asked this court to overrule
that holding, much less undertaken the effort necessary
to establish that we should overrule it. See Farmers Ins.
Co. v. Mowry, 

, 

 (2011) (“[T]he
principle of stare decisis dictates that this court should
assume that its fully considered prior cases are correctly
decided. Put another way, the principle of stare decisis
means that the party seeking to change a precedent must
assume responsibility for affirmatively persuading us that
we should abandon that precedent.” (Internal quotation
marks omitted.)).
         I write separately to explain the statutes that govern
consecutive sentences and probation revocation sanctions,
the sentencing guidelines, and Rusen. As I will explain, I
believe that Rusen correctly held that ORS 137.123 does not
apply directly to probation revocation sanctions, and, even if
one were to disagree with Rusen, the requirements for overruling it have not been met.
         I begin with a comment about terminology. This
case involves custody imposed as a consequence of the revocation of defendant’s probation. As this court has observed,
sometimes such custody is referred to as a “sanction” and
sometimes it is referred to as a “sentence.” Lane, 

. There are many laws that relate to custody, including constitutional provisions, statutes, and administrative
rules. Those laws can relate to custody imposed immediately upon conviction, custody imposed following revocation of probation, or both. The laws are not always precise
about the type or types of custody they relate to. Many of the
laws were created at different times, for different purposes,
118                                          State v. Logston

and by different entities. Consequently, when determining
whether, for example, the term “sentence” in a particular
law was intended to encompass custody imposed upon the
revocation of a defendant’s probation, we must ascertain the
intent of the entity that created the particular law, be it the
voters, the legislature, or an administrative agency. See,
e.g., Lane, 

 (applying approach). In doing so,
we must focus on the text of the particular law, in context,
and the law’s history. 

 We cannot assume that all references to a “sentence” encompass custody imposed upon the
revocation of a defendant’s probation.
         In this opinion, to be clear about the type of custody I am referring to, I use the term “probation revocation
sanction” to refer to custody imposed upon the revocation
of a defendant’s probation. I use the term “initial sentence”
to refer to custody imposed immediately following a defendant’s conviction.
         Because this case involves a probation revocation
sanction for a crime that is subject to the felony sentencing
guidelines, it is important to understand how statutes that
govern sentences interact with the guidelines. The guidelines were first approved by the legislature in 1989 and
apply to felonies committed on or after November 1, 1989.
Or Laws 1989, ch 790, § 6(1), codified as ORS 137.010(1)
(1989) (stating applicability of guidelines). The guidelines
do not apply to felonies committed before that date or to
misdemeanors. Consequently, even with the adoption of
the guidelines, there was a need to retain preguidelines
sentencing statutes. As discussed below, the guidelines
drafters were aware of those statutes, and, when they
wanted to incorporate them into the guidelines, they did
so.
         As mentioned, Justice Bushong’s concurrence would
hold that ORS 137.123 applies directly to probation revocation sanctions for guidelines crimes. 

(Bushong, J., concurring). ORS 137.123 is a preguidelines
statute; it was adopted by initiative in 1986, three years
before the sentencing guidelines. See State v. Soto, 

, 

 (2024) (discussing history of ORS
137.123). Under ORS 137.123, concurrent sentences are the
Cite as 

 (2025)                                 119

default. ORS 137.123(1) (“The court may provide for consecutive sentences only in accordance with the provisions of
this section. A sentence shall be deemed to be a concurrent
term unless the judgment expressly provides for consecutive sentences.”). A court can impose a consecutive sentence
only in certain circumstances. ORS 137.123(2) - (4) (identifying circumstances). One of the circumstances in which a
court can impose consecutive sentences is if the defendant’s
crimes of conviction “do not arise from the same continuous
or uninterrupted course of conduct.” ORS 137.123(2). But, if
the defendant’s crimes of conviction do arise from the same
continuous and uninterrupted course of conduct, then the
defendant’s sentences “shall be concurrent,” unless the court
makes certain findings. ORS 137.123(4), (5).
         When ORS 137.123 was enacted, probation itself
was not a “sentence.” State v. Stevens, 

, 

 (1969). Instead, a court that placed defendant on
probation either (1) suspended the imposition of the defendant’s sentence or (2) imposed a sentence but suspended its
execution. 

 If the defendant’s probation was later revoked,
the defendant would begin serving their “sentence.” 

         In 1989, the legislature approved the sentencing
guidelines, through the enactment of House Bill (HB) 2250.
Or Laws 1989, ch 790. The sentencing guidelines were the
product of a multiyear process and resulted in a “significant change in Oregon’s criminal justice system.” Oregon
Sentencing Guidelines Implementation Manual 1 (1989)
(Implementation Manual). As mentioned, the guidelines
apply only to felonies committed on or after November 1,
1989. For those crimes, the guidelines establish presumptive
sentences, including presumptive probation sentences and
presumptive prison sentences. The guidelines changed the
nature of probation; they made probation itself a sentence.
As the Implementation Manual explains, “[u]nder the guidelines system, a sentence of probation is the sentence imposed
by the sentencing judge.” Implementation Manual at 93.
        The guidelines rules include rules governing probation sentences, violations, sanctions, and revocations. Some
of those rules limit the length of probationary terms and
the amount of custody units that can be imposed initially
120                                                         State v. Logston

and for violations. See, e.g., OAR 213-005-0007 (presumptive probation sentences); OAR 213-005-0008 (duration of
probation); OAR 213-010-0001 (revocation); OAR 213-010-
0002 (sanctions). Another governs when probation revocation sanctions must be concurrent and when they can be
consecutive. OAR 213-012-0040.
          The guidelines drafters were aware of existing sentencing statutes. Indeed, the bill that resulted in the adoption of the guidelines also amended existing statutes. Among
other things, that bill amended the statute that is now
codified as ORS 137.545(5)(b) to provide that, “[f]or defendants sentenced for crimes committed on or after November
1, 1989, the court that imposed the probationary sentence
shall revoke probation supervision and impose a sanction
as provided by rules of the State Sentencing Guidelines
Board.” Or Laws 1989, ch 790, § 17(4)(b) (amending former
ORS 137.550 (1987), renumbered as ORS 137.545 (1999)).1
          When the guidelines drafters wanted existing statutes to apply instead of the guidelines, they stated so in the
guidelines themselves. See, e.g., OAR 213-004-0003(1) (stating that the guidelines do not include a crime seriousness
ranking for aggravated murder because the sentence for
that crime is “set by statute … (ORS 163.095-163.105)”).
Similarly, when they wanted existing statutes to apply in
addition to the guidelines, they either stated so in the guidelines or amended the existing statutes to integrate them
into the guidelines system. See, e.g., OAR 213-009-0003 (“In
addition to the presumptive or departure sentence, the sentencing judge may impose any restitution, fine, fee or other
monetary payment authorized or required by law.”); see also
Implementation Manual at 151-52 (explaining that, “[t]o
ensure that [the dangerous offender] statute is not used in
a manner inconsistent with the general purposes and principles of the guidelines system, the legislature amended the
dangerous offender statutes to integrate it into the guidelines system”).
    1
      As explained below, ORS 137.545(5)(b) was later amended to read as it does
today. 

 (Duncan, J., concurring). Specifically, “shall” was changed
to “may” to make it clear that, if a trial court found that a defendant had violated
a condition of probation, the trial court was not required to revoke the probation.
See 

Cite as 

 (2025)                                121

         After the guidelines were created, a question arose
regarding whether ORS 137.123—which, as mentioned, predates the guidelines—applies to probation revocation sanctions for guidelines crimes. This court addressed that question in Rusen and held that ORS 137.123 does not apply to
such sanctions.
         In Rusen, the defendant pleaded no contest to four
counts of second-degree sexual abuse involving the same
victim. 

. The plea agreement specified that the
four counts “were committed on four different dates—i.e.,
not ‘the same continuous and uninterrupted course of conduct,’ ORS 137.123(2).” Rusen, 

. The crimes
were subject to the guidelines, and the trial court imposed
four probationary sentences. 

. During the defendant’s probation term, the state alleged that the defendant
had violated a condition of his probation. 

. The
defendant admitted to a single violation. 

 The state asked
the trial court to impose consecutive revocation sanctions.

 The defendant argued against consecutive sanctions,
relying on OAR 213-012-0040(2)(a), which provides that, “[i]f
more than one term of probationary supervision is revoked
for a single supervision violation, the sentencing judge shall
impose the incarceration sanctions concurrently.” Rusen,

. The trial court revoked all four of the defendant’s probations and imposed four consecutive revocation
sanctions. 

.
        The defendant appealed, and the Court of Appeals
reversed, holding that the trial court had erred in imposing
consecutive probation revocation sanctions for a single probation violation. State v. Rusen, 

, 

 (2020). In doing so, the Court of Appeals “rejected
the state’s argument that the trial court had authority to
impose consecutive sanctions under ORS 137.123(2),” which,
as noted, allows for consecutive sentences for crimes that
“do not arise from the same continuous or uninterrupted
course of conduct.” Rusen, 

 (describing Court of
Appeals decision). On the state’s petition, we allowed review.

        On review, the state argued that ORS 137.123
applies directly to probation revocation sanctions for
122                                              State v. Logston

guidelines crimes. 

. We rejected that argument
based on ORS 137.545(5)(b). 

. Again, that provision—which was enacted as part of the bill that created
the sentencing guidelines—states that, for defendants sentenced for guidelines crimes, “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 [‘guidelines rules’].” ORS
137.545(5)(b). The state argued that ORS 137.545(5)(b)
should be read “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.” Rusen, 

.
But, based on the text, context, and legislative history of
ORS 137.545(5)(b), we rejected the state’s reading. 

. We explained that, as originally enacted in 1989,
the provision stated that a court “shall” revoke probation
and impose a sanction as provided by the guidelines, but the
term “shall” was changed to “may” in 1991 “to ensure that
judges retained their presentencing guidelines discretion
regarding whether to revoke probation, reflecting a recognition that not all probation violations warrant revocation.”

. We further explained that that change was not
intended to alter the requirement that trial courts impose
probation revocation sanctions as provided by the guidelines. 

 That is, it was not 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.” 

 Consequently, we concluded that
ORS 137.545(5)(b) requires trial courts to impose probation
revocation sanctions under the guidelines rules only. 

. We summarized:
   “[U]nder 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 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.”
Cite as 

 (2025)                                                     123

 (emphasis added); see also id. at 697 (stating that, for
guidelines crimes, “a trial court imposing probation revocation sanctions is directed to the guidelines rules by ORS
137.545(5)(b)”); id. at 698 n 8 (rejecting the state’s argument
that ORS 137.123(2) directly applies to probation revocation
sanctions, stating, “as we just explained, the imposition of
probation revocation sanctions is governed by the sentencing rules[;] [s]o, to the extent that ORS 137.123(2) applies at
all, it would apply only through OAR 213-012-0010,” which
expressly incorporates ORS 137.123).
         Thus, in Rusen, this court clearly held that ORS
137.545(5)(b) requires trial courts to impose sanctions under
the guidelines. 

. Because of that holding,
we proceeded to determine whether any guidelines rule
authorized the trial court to impose consecutive probation
revocation sanctions as it had. 

.2
     2
       It is worth noting that this court’s conclusion in Rusen that ORS 137.123
does not apply directly to probation revocation sanctions for guidelines crimes
is consistent with an argument that the state made, and the Court of Appeals
accepted, in State v. Newell, 

, 

 (2010). In Newell, the
defendant pleaded guilty to four counts of encouraging child sexual abuse in the
second degree, based on his possession of child pornography. 

. The trial
court imposed four probationary sentences. 

 While on probation, the defendant admitted to having committed multiple probation violations. 

 The trial
court revoked all four of the defendant’s probations and imposed consecutive probation revocation sanctions over the defendant’s objection that the court could
not impose consecutive sanctions without making the findings required by ORS
137.123(5), which applies to consecutive sentences for crimes arising out of a continuous and uninterrupted course of conduct. 

.
     The defendant appealed, renewing his argument that ORS 137.123 applies
to probation revocation sanctions for guidelines crimes. 

 The state disagreed,
arguing that ORS 137.123 “applies only to the imposition of sentences and not
to the imposition of probation revocation sanctions.” 

. The Court of
Appeals agreed with the state. 

 (concluding that ORS 137.123 “has no
application in the context of probation violation proceedings”).
     In conducting its legal analysis, the Court of Appeals examined statutes and
guidelines rules. 

. It noted that ORS 137.545(5)(b) states that a court
that revokes probation may impose a sanction “as provided by” the sentencing
guidelines. 

. It then observed that the guidelines include rules that
relate to probation revocation sanctions, specifically, OAR 213-010-0002, which
concerns the length of sanctions, and OAR 213-012-0040(2), which concerns concurrent and consecutive probation revocation sanctions. 

. Based on
those rules, the court concluded that the sentencing guidelines maintain a distinction between consecutive sentences imposed upon conviction and consecutive
probation revocation sanctions. 

     Continuing its analysis, the Court of Appeals looked to the legislative history
of the sentencing guidelines. 

. The court noted that the commentaries to the guidelines rules relating to probation revocation sanctions show that
124                                                         State v. Logston

         As mentioned, the defendant in Rusen argued
that, because the trial court had revoked his probation
based on a single violation, OAR 213-012-0040(2) required
the trial court to impose concurrent sanctions. Id. at 698.
For its part, the state argued that another rule, OAR 213-
012-0010, authorized the trial court to impose consecutive
sanctions because that rule expressly incorporates ORS
137.123, which authorizes consecutive sentences for crimes
of conviction that do not arise from the same continuous and
uninterrupted course of conduct. Id. To determine which
rule applies, we looked to the text, context, and legislative
history of both rules. Id. at 703-04. We observed that OAR
213-012-0040(2) expressly refers to probation revocation
proceedings, but OAR 213-012-0010 does not. Id. at 703. We
further observed that “that failure [of OAR 213-012-0010] 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.” Id. In light of the text of the rules and the
circumstances of their adoption and approval, we concluded

probation sanctions relate directly to the violations for which they are imposed, as
opposed to the underlying crimes of conviction. Id. The court quoted the commentary to OAR 213-010-0002, which states that “ ‘[t]he sanctions described by this
rule are penalties for supervision violation and do not directly relate to the crime
of conviction.’ ” Newell, 

 (quoting Implementation Manual at 170
(emphasis in Newell)). It also quoted the commentary to OAR 213-012-0040(2),
which states that the “ ‘prison term associated with the revocation sanction will
be served concurrently or consecutively depending on the nature of the supervision
violation.’ ” 

 (quoting Implementation Manual at 118 (emphasis
in Newell)). In keeping with that understanding of probation sanctions, the court
rejected the defendant’s argument that ORS 137.123, which requires findings
about a defendant’s crimes of convictions, applies to probation sanctions. 

. The court summarized:
     “None of the rules or statutes cited above, and none of our case law, supports
     defendant’s suggestion that the facts of the underlying crimes would need to
     be relitigated (which would necessarily need to occur were ORS 137.123 to
     apply in this circumstance) in order to determine the appropriate sanctions
     to impose for probation violations.
         “Accordingly, we conclude that the trial court was correct in determining that the sole criterion for whether it could impose multiple incarceration
     sanctions was whether there had been multiple probation violations. OAR
     213-012-0040(2).”

. Thus, since 2010, it has been established Court of Appeals law that
ORS 137.123, which requires fact finding before the imposition of certain consecutive sentences, does not apply directly to probation revocation sanctions.
Cite as 

 (2025)                                                   125

that the rules “should be understood as addressing different
stages of sentencing.” 

 Specifically, OAR 213-012-0010
“applies to initial sentencing immediately following the convictions,” while OAR 213-012-0040(2) applies to “probation
revocation proceedings.” Id. at 703-04. In doing so, we noted
that that conclusion is the same as the one that “has been
applied by the Court of Appeals for decades.” Id. at 704 (citing State v. Stokes, 

, 

 (1995),
as “interpreting OAR 213-012-0010 as governing initial sentencing and interpreting OAR 213-012-0040 as governing
probation revocation”).3
         In sum, in Rusen, this court made two important
holdings regarding probation revocation sanctions. The first
is that, given ORS 137.545(5)(b), probation revocation sanctions are governed by the sentencing guidelines and, therefore, ORS 137.123 does not apply directly to them. The second is that OAR 213-012-0010 applies to initial sentencing,
whereas OAR 213-012-0040(2) applies to probation revocation proceedings. Although OAR 213-012-0010 incorporates
ORS 137.123, OAR 213-012-0040(2) does not. Consequently,
ORS 137.123 does not apply to probation revocation proceedings indirectly.
         In his concurrence, Justice Bushong states that he
would overrule the first Rusen holding. 

(Bushong, J., concurring). He would hold that ORS 137.123
applies directly to probation revocation proceedings. 

 . As
I understand it, he would do so based on the text, context,
and legislative history of ORS 137.123. 

-42

    3
      The conclusion that OAR 213-012-0010 applies to initial sentencing is also
consistent with the commentary to the rule, which states that the rule “confirms
that existing statutory law controls the sentencing judge’s threshold choice of
consecutive or concurrent sentences for multiple convictions.” Implementation
Manual at 112 (commentary to former OAR 253-012-010 (Sept 1, 1989), renumbered as OAR 213-012-0010 (Mar 8, 1996)). Attached as it is to OAR 213-012-0010,
that comment makes sense because OAR 213-012-0010 expressly incorporates
sentencing statutes, including ORS 137.123. And the comment itself indicates
that the rule applies to a judge’s “threshold” choice of consecutive or concurrent
sentences, which suggests that it applies at a defendant’s initial sentencing.
    Notably, the comment is not attached to OAR 213-012-0040(2), which applies
to probation revocation sanctions. It would not make sense if it were, because
the adoption of OAR 213-012-0040(2) changed trial courts’ authority to impose
consecutive probation revocation sanctions by precluding consecutive probation
revocation sanctions for a single probation violation.
126                                                         State v. Logston

(Bushong, J., concurring). But, as explained above, ORS
137.123 is a preguidelines statute and, when the legislature
enacted the law that adopted the guidelines and amended
existing statutes, it created ORS 137.545(5)(b), under which
the guidelines control probation revocation sanctions.
         Justice Bushong suggests that Rusen’s holding
that ORS 137.123 does not apply directly to probation revocation sanctions was not fully considered. 

(Bushong, J., concurring). But that view is contradicted
by the Rusen opinion. As described above, in Rusen, the
state specifically argued that ORS 137.123 applied directly
to probation revocation sanctions, and this court engaged
with that argument. Rusen, 

, 698 n 8, 699-701,
703-04. In doing so, this court looked to ORS 137.545(5)
(b), which weighed against the state’s argument. 

 It considered the text, context, and legislative history of ORS
137.545(5)(b) and concluded that the provision bars a trial
court from imposing a probation revocation sanction “other
than those provided by the sentencing guidelines rules.”

.4
        As noted at the outset, no party in this case has
asked us to overrule that holding, much less undertaken to
prove that it should be overruled. For the reasons explained

    4
      This court’s conclusion in Rusen that ORS 137.123 does not apply directly
to probation revocation sanctions was a holding of the case. It was central to the
court’s reasoning; without it, the court would not have had to look to the guidelines rules. Moreover, if ORS 137.123 applied directly to probation revocation
proceedings as the state argued in Rusen, the outcome of the case would have
been different. Instead of agreeing with the defendant that OAR 213-012-0040(2)
precluded consecutive sanctions based on a single violation, we would have had to
hold that ORS 137.123 authorized consecutive sanctions because the underlying
offenses had not been part of “the same continuous and uninterrupted course
of conduct.” ORS 137.123(2). That is because, if both the rule and the statute
applied, the statute would trump the rule. See Newell, 

(“[Although legislative approval of administrative rules] ‘may be expressed in the
form of a statute, … that does not transform the [rules] themselves into statutes. It stands to reason, therefore, that, merely because the legislature in 1989
declared its approval of the sentencing guidelines by statute, it did not thereby
transform the guidelines themselves into statutes. They were promulgated as
administrative rules, and administrative rules they remained[.]’ ” (Quoting State
v. Norris, 

, 

, rev den, 

 (2003).)); see also
State v. Carlton, 

, 39 n 7, 

 (2017) (sentencing guidelines
are administrative rules); Implementation Manual at 149 (“While the guidelines
have been approved by the legislature, they retain their status as administrative
rules. When those rules conflict with statutes, the statutory provisions control.”).
Cite as 

 (2025)                                                  127

above, I conclude that the holding is sound, as it is based
on an analysis of the legislature’s intent in enacting ORS
137.545(5)(b), as evidenced by the text, context, and legislative history of that statute. Therefore, I disagree with the
position expressed in Justice Bushong’s concurrence that
this court should overrule the holding.5
           BUSHONG, J., concurring.
         The majority opinion holds that Article I, section
44(1)(b), of the Oregon Constitution authorized the trial
court in Lake County, after revoking defendant’s probation,
to impose a term of incarceration that is consecutive to the
prison sentence that another court had imposed in a different criminal case in Jefferson County. I agree with the
majority’s holding. I write separately because, in my view,
this case can and should be resolved on statutory grounds.
Doing so would require us to overrule State v. Rusen, 

, 

 (2022), in part. Although no party has
asked us to do that, we should do so in this or a future case
because, in my view, Rusen misinterpreted ORS 137.123.
See State v. McCarthy, 

, 

 (2021)
(“this court is willing to reconsider an earlier decision when
it appears that the decision was incorrect, especially if,
in making the decision, the court did not apply its usual
interpretative methodology or was not presented with an
important argument.”). That statute, where applicable,
directly authorizes consecutive sentences upon revocation
of probation.
        Under our traditional approach, “if statutory sources
of law provide a complete answer to [a] legal question that
    5
       According to Justice Bushong’s concurrence, this court addressed the
state’s argument that ORS 137.123 applies directly to probation revocation sanctions only in a footnote. 

 (Bushong, J., concurring). A necessary
premise of the state’s argument was that ORS 137.123 could apply directly to
probation revocation sanctions, despite ORS 137.545(5)(b). Throughout the body
of the Rusen opinion, this court addressed that premise, ultimately rejecting it
on the ground that ORS 137.545(5)(b) requires trial courts to apply the guidelines (which is why this court then had to determine whether any guidelines rule
authorized the consecutive sentences at issue). Rusen, 

 (“a trial
court imposing probation revocation sanctions is directed to the guidelines rules
by ORS 137.545(5)(b)”); 

 (ORS 137.545(5)(b) “does not authorize a trial
court to revoke probation and impose a sanction other than those provided by the
sentencing guidelines rules”); 

 (analyzing OAR 213-012-0010 and
OAR 213-012-0040(2)).
128                                                State v. Logston

a case presents, we ordinarily decide the case on that basis,
rather than turning to constitutional provisions.” Rico-Villalobos v. Giusto, 

, 

 (2005); see
also Planned Parenthood Ass’n v. Dep’t of Human Res., 

, 

 (1984) (stating that “constitutional
issues should not be decided when there is an adequate
statutory basis for a decision”). We will ordinarily attempt
to resolve a case on statutory grounds even if the parties
attempt to frame the issue in purely constitutional terms.
State ex rel Keisling v. Norblad, 

, 

 (1993); Zockert v. Fanning, 

, 

(1990).
        I would adhere to that approach and decide this
case on statutory grounds. I begin by explaining the statutory basis for deciding this case before turning to our prior
decision in Rusen.
        I. STATUTORY RESOLUTION—ORS 137.123
         As noted in the majority opinion, the state contends
that consecutive sentences were authorized by ORS 137.123.
Deciding that issue would require the court to interpret the
statute, applying our traditional methodology, focusing on
text, context, and legislative history. State v. Gaines, 

, 

 (2009). I begin with the text and
context.
A.    Text and Context of ORS 137.123
           ORS 137.123 provides, in pertinent part, as follows:
        “(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been
     previously imposed or is simultaneously imposed upon the
     same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section.
     A sentence shall be deemed to be a concurrent term unless
     the judgment expressly provides for consecutive sentences.
        “(2) If a defendant is simultaneously sentenced for
     criminal offenses that do not arise from the same continuous and uninterrupted course of conduct, or if the defendant previously was sentenced by any other court within the
     United States to a sentence which the defendant has not yet
Cite as 

 (2025)                                                 129

   completed, the court may impose a sentence concurrent with
   or consecutive to the other sentence or sentences.”
(Emphases added.) The state relies on the emphasized portions of ORS 137.123 as the statutory authority for the trial
court’s decision, upon revoking defendant’s probation, to
impose a term of incarceration that was consecutive to the
sentences that had been previously imposed by the Jefferson
County Circuit Court that defendant was serving at the
time of revocation.
         Defendant does not dispute that the text of ORS
137.123 would authorize a consecutive sentence if the term
of incarceration imposed after revoking defendant’s probation was a “sentence” within the meaning of that statute. Defendant contends, however, that the only sentence
imposed by the Lake County Circuit Court was the sentence
of probation that the court originally imposed. According to
defendant, incarceration following revocation of probation is
a sanction for violating probation and not a sentence within
the meaning of ORS 137.123, because Oregon’s sentencing
scheme established two distinct pathways for imposing a
term of incarceration: the original sentence and a probation
revocation sanction. I disagree.
         The plain meaning of the word “revocation” supports
the conclusion that a court imposes a new “sentence” after
revoking a defendant’s probation. The dictionary defines
“revocation” as “an act of revoking : the act by which one having the right annuls something previously done … : repeal,
reversal, withdrawal. Webster’s Third New Int’l Dictionary
1944 (unabridged ed 2002). Thus, the act of “revoking” defendant’s original sentence of probation effectively “annulled” or
“withdrew” the original sentence and resulted in the imposition of a new sentence. That new sentence is appealable
under ORS 138.035(3) (stating that a defendant “may appeal
a judgment or order … imposing … a sentence upon revocation of probation” (emphasis added)).1
    1
      By contrast, the term “sanction” makes sense when probation is continued,
not revoked, and the probationer is sanctioned for violating the terms of probation. See ORS 137.593(2)(c) (noting that, upon finding a violation, a court has
discretion “to revoke probation or impose such other or additional sanctions” as
authorized by law); ORS 137.595 (describing system of “structured, intermediate
probation violation sanctions”).
130                                                         State v. Logston

         Other related statutes that apply to sentencing and
the consequences of probation revocation do not describe two
distinct pathways to incarceration.2 Some statutes describe
the penalties for a probation violation as a “sanction.” See, e.g.,
ORS 137.545(5)(b) (authorizing courts that imposed a probationary sentence for felonies committed on or after November
1, 1989, to “revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice
Commission”); ORS 137.593(1) (the relevant corrections
agency “shall impose structured, intermediate sanctions”
if the defendant violated the conditions of probation); ORS
137.593(2)(b), (c) (authorizing a court to impose “sanctions”
for violating the conditions of probation); ORS 137.593(2)(d)
(authorizing the court to impose a period of incarceration “as a
sanction for revocation of probation”); ORS 137.595(1) (directing the Department of Corrections to establish “a system of
structured, intermediate probation violation sanctions”).
         Other statutes, however, refer to the imposition of
a term of incarceration upon revocation of probation as a
“sentence.” See, e.g., ORS 137.010(7) (stating that, “when a
suspended sentence or sentence of probation is revoked, the
court shall impose the following sentence”); ORS 137.712(5)
(stating that, if a person subject to a mandatory minimum
sentence is placed on probation under that statute and then
violates probation by committing a new crime, the court
“shall revoke the probation and impose the presumptive
sentence of imprisonment” under the rules of the Oregon
Criminal Justice Commission); ORS 161.585(2)(c) (stating
that certain crimes will be treated as felonies unless, upon
revocation of probation, “the court imposes a sentence of
imprisonment other than to the legal and physical custody
of the Department of Corrections”). In addition, imposing a
term of incarceration after revoking probation is appealable
under ORS 138.035, because “sentence” is defined in ORS
138.005(5)(b) to include “imposition or execution of a sentence upon revocation of probation[.]” (Emphasis added.)
        Similarly, the sentencing guidelines rules also use
both terms in describing the consequences of a probation

    2
      Context includes other provisions of the same statute and other related statutes. PGE v. Bureau of Labor and Industries, 

, 

 (1993).
Cite as 

 (2025)                                                   131

revocation. For example, OAR 213-012-0040(2) repeatedly
refers to “the sentencing judge” but also uses the term “sanctions” to refer to the consequences of a probation violation.3
OAR 213-010-0002 repeatedly refers to incarceration upon
revocation of probation as a “sentence.”4
        Because the statutes and the sentencing guidelines
rules use the terms “sanction” and “sentence” interchangeably to describe the consequences of revoking probation,
those statutes and rules do not clearly define two distinct
pathways to imprisonment.
         We said as much in State v. Lane, 

, 

 (2015). There, we examined the historical context of
Article I, section 44, of the Oregon Constitution. That examination included the statutes and regulations that existed in
1999, when Article I, section 44, was adopted by the voters
after a legislative referral. 

. The defendant argued
that those statutes and regulations revealed an unambiguous distinction between imposing a sentence for a crime and
imposing a sanction upon probation revocation. But we did
not “find such a clear distinction in the relevant statutes and
    3
     OAR 213-012-0040(2) provides:
        “(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 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.”
(Emphases added.)
   4
     OAR 213-010-0002 provides, in part:
        “(1) For those offenders whose presumptive sentence was probation, the
   sentence upon revocation shall be to the supervisory authority for a term up
   to a maximum of six months.
        “(2) For those offenders whose probationary sentence was either a departure from a presumptive prison sentence or a sentence imposed pursuant to
   OAR 213-005-0006, the sentence upon revocation shall be a prison term up to
   the maximum presumptive prison term which could have been imposed initially, if the presumptive prison term exceeds 12 months. For those presumptive prison terms 12 months or less, the sentence upon revocation shall be to
   the supervisory authority, up to the maximum presumptive prison term.”
(Emphases added.)
132                                             State v. Logston

regulations[.]” 

. Instead, we noted that “a number
of statutes describe the penalties for a probation violation
as a ‘sanction[,]’ ” 

 but “other statutes and rules … refer
to the imposition of a sanction for probation violations as
‘sentencing[,]’ ” 

. Thus, we thought that the voters who adopted Article I, section 44(1)(b), would not have
understood that there was “a well-established and ‘unambiguous’ distinction between imposing probation revocation
sanctions and sentencing.” 

.
          Additional context supports the conclusion that
ORS 137.123 applies to a sentence of imprisonment imposed
upon revocation of probation. ORS 137.123 was enacted by
initiative in 1986 as part of Ballot Measure 10 (1986), known
as the “Crime Victims’ Bill of Rights.” Or Laws 1987, ch 2,
§ 1; see State v. Soto, 

, 

 (2024)
(describing enactment history). That was three years before
the Oregon legislature “substantially changed the way
courts sentenced felony offenders.” State ex rel Engweiler v.
Cook, 

, 

 (2006) (citing Or Laws
1989, ch 790). The 1989 legislation “abolished Oregon’s indeterminate sentencing system” and replaced it with the current sentencing guidelines scheme. Engweiler v. Board of
Parole, 

, 

 (2007).
         Under the indeterminate sentencing system that
existed when ORS 137.123 was enacted, there was no such
thing as a “sentence” of probation. At that time, a trial court
had two options if it wanted to place a convicted felon on
probation: (1) It could sentence the defendant to a term
of imprisonment and suspend execution of that sentence
during the term of probation; or (2) it could “suspend the
imposition of a sentence and sentence [the defendant] at a
later date if probation [was] violated.” State v. Stevens, 

, 

 (1969); see also State v. Carmickle,

, 

 (1988) (describing the history of
probation in Oregon); State v. McClure, 

, 

 (1983) (stating that probation was “an alternative
to the imposition of a sentence”); State v. Ludwig, 

, 

 (1959) (stating that “[p]robation
is a release by the court before sentence has commenced”).
Cite as 

 (2025)                                                   133

Thus, the term of imprisonment imposed upon revocation of
probation was the sentence.
         In 1985—one year before the voters enacted ORS
137.123—the legislature enacted former ORS 137.122
(1985).5 Or Laws 1985, ch 722, § 2. That law provided that,
if the defendant had been previously sentenced to a term
of imprisonment by another court, “the court may impose
a term of imprisonment concurrent with or consecutive to”
the previous term of imprisonment. Former ORS 137.122(2)
(1985). Because that statute applied when a court imposed
“a term of imprisonment”—not a “sentence”—it authorized
a court to impose a term of imprisonment upon revocation of
probation that was consecutive to a previously imposed term
of imprisonment.6
         Thus, in 1986, when the voters expressly authorized
consecutive “sentences” by adopting ORS 137.123, courts
were already authorized under former ORS 137.122(2) (1985)
to impose upon revocation of probation a term of imprisonment that was consecutive to a term of imprisonment that
had been previously imposed by another court. It would
seem to follow that the voters in 1986 likely intended “sentence” as used in Measure 10 to include a term of imprisonment imposed upon revocation of probation. Granted, we
stated in Soto that, “even assuming that voters in 1986 may
have been generally aware that the legislature had recently
enacted a consecutive sentence statute, former ORS 137.122
(1985), we cannot infer that the voters intended [Measure
10] to have the same meaning” as that statute. 

. Accordingly, former ORS 137.122 (1985) provides
    5
      The legislature repealed ORS 137.122—which was mostly duplicative of
ORS 137.123—in 1991. Or Laws 1991, ch 67, § 28.
    6
      Before 1961, a statute made consecutive sentences mandatory when
a defendant was serving a prison sentence at the time of sentencing on a new
crime. See former ORS 137.160 (1959) (“If the defendant is in imprisonment upon
a previous judgment on a conviction for a crime, the judgment shall be that the
imprisonment shall commence at the expiration of the term limited by the previous judgment”). That statute was repealed in 1961. Or Laws 1961, ch 520, § 1.
From 1961 until 1985, no statute gave courts the authority to impose a sentence
that was consecutive to a previously imposed sentence, but this court had indicated that “permissive legislation was not necessary” because “[i]t is an inherent
power of the court to impose sentences, including the choice of concurrent or consecutive terms when the occasion demands it.” State v. Jones, 

, 

 (1968).
134                                                           State v. Logston

relevant context, but it does not necessarily indicate that
the voters intended Measure 10 to have the same meaning.
          Defendant reads more into the legislature’s replacement of indeterminate sentencing with the current sentencing guidelines scheme. He contends that, even if ORS
137.123 may have authorized trial courts to impose a consecutive “sentence” upon revocation of probation when the voters enacted that statute in 1986, the legislature’s enactment
of our current sentencing system in 1989 eliminated that
authority. The 1989 legislation included the provision that is
now codified in ORS 137.545(5)(b), which provides that “the
court that imposed [a] probationary sentence may revoke
probation supervision and impose a sanction as provided by
rules of the Oregon Criminal Justice Commission.”7 (Emphasis
added.) Those rules have been approved by the legislature.
See State v. Carlton, 

, 39 n 7, 

 (2017)
(noting that the sentencing guidelines “are administrative rules, of which the legislature has expressed approval,
although without formally adopting them as statutes”).
         According to defendant, under our current system,
probation revocation sanctions are now governed exclusively
by the sentencing guidelines rules, and those rules do not
authorize a trial court to impose upon revocation of probation a term of incarceration that is consecutive to a sentence
that had been imposed in another case. That argument
fails in both respects. The sentencing guidelines rules are
not exclusive; they incorporate existing statutory authority
governing consecutive sentences.8 And, contrary to Justice
     7
       We discussed the enactment history of ORS 137.545 in Rusen. There, we
explained that, as originally enacted, the statute required trial courts to revoke
probation upon finding a violation of the conditions of probation, but the legislature
amended the law in 1991 to make revocation discretionary. Rusen, 

.
     8
       Justice Duncan suggests that a court’s authority under ORS 137.545(5)
(b) to impose a sanction “as provided by” the sentencing guidelines rules means
that ORS 137.123 cannot directly apply. 

 (Duncan, J., concurring).
ORS 137.545(5)(b) was enacted in 1989, three years after the voters enacted ORS
137.123, and it did not expressly amend or repeal ORS 137.123. We generally do
not treat a statute as implicitly repealing authority previously granted by an
existing statute. See State ex rel Huddleston v. Sawyer, 

, 

, cert den, 

 (1997) (holding that Measure 11 did not repeal the
sentencing guidelines by implication because they “can be harmonized to give
effect to both”); State ex rel. Med. Pear Co. v. Fowler, 

, 

 (1956) (“It is well settled that amendments or repeals by implication are not
favored by the courts.”).
Cite as 

 (2025)                                                   135

Duncan’s concurrence and as explained next, those rules
authorize a trial court to impose upon revocation of probation a term of incarceration that is consecutive to a prior
sentence when the original sentence of probation was a
departure from a presumptive prison sentence.
        OAR 213-010-0002(2) provides that, if the original
probationary sentence was a departure from a presumptive
prison sentence, “the sentence upon revocation shall be a
prison term up to the maximum presumptive prison term
which could have been imposed initially[.]” The Oregon
Sentencing Guidelines Implementation Manual (Guidelines
Manual) contains the official commentary to the sentencing guidelines.9 Oregon Criminal Justice Council, Oregon
Sentencing Guidelines Implementation Manual (1989).
The Guidelines Manual explains the purpose of OAR
213-010-0002(2):
        “This section reflects a policy judgment by the
    Guidelines Board that an offender granted probation in lieu
    of presumptive imprisonment should remain subject to the
    imprisonment that the court could have imposed as a presumptive sentence under these guidelines. This sanction policy should encourage probationary sentences in appropriate
    cases because the sentencing judge retains the authority to
    impose the more substantial prison term. The policy should
    also encourage compliance with the conditions of probation
    because the offender will be aware of the more severe revocation penalty.”
Oregon Sentencing Guidelines Implementation Manual 170
(1989) (emphasis added). Thus, determining the sentence
that could be imposed upon revocation of a probation that
was initially imposed as a departure from a presumptive
prison sentence requires the court to determine what sentence the court could have imposed, had it not departed to
probation.
         Whether that sentence could be imposed consecutively to a sentence that the defendant was serving at the
    9
       As noted, the Guidelines Manual contains the State Sentencing Guidelines
Board’s “official commentary to each of the rules comprising the guidelines.”
State v. Davis, 

, 493 n 14, 

 (1993). We have also explained
that the Guidelines Manual is a “training tool” and “reference manual” that
“describes for criminal justice professionals the proper application of the guidelines.” 

 (internal quotation marks omitted).
136                                                       State v. Logston

time is addressed in the sentencing guidelines rule that governs the imposition of consecutive or concurrent sentences.
That rule incorporates existing statutory authority, including ORS 137.123, for the imposition of consecutive sentences.
OAR 213-012-0010 provides:
       “When 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.”10
Thus, if consecutive sentences are authorized directly by
ORS 137.123, they should also be authorized indirectly
through the sentencing guidelines rule that incorporates
that statute. And nothing in the sentencing guidelines rules
precludes a court from imposing a consecutive term of incarceration in situations that are covered by ORS 137.123.
         The Guidelines Manual confirms that the sentencing guidelines rules were never intended “to limit the court’s
discretion to impose concurrent or consecutive sentences”
in situations covered by the statute. Oregon Sentencing
Guidelines Implementation Manual 112 (1989). Instead, the
Guidelines Manual recognizes that the court’s discretion
to impose concurrent or consecutive sentences “is granted
to the judiciary by statute.” 

 (citing former ORS 137.122
(1985) and ORS 137.123).
        Rather than limiting that discretion, “the sentencing guidelines prescribe the manner in which multiple sentences are to be computed.” 

 In describing the intent of
former OAR 253-12-010 (1989) (now OAR 213-012-0010)11—
    10
       ORS 137.370(5) provides:
         “Unless the court expressly orders otherwise, a term of imprisonment
    shall be concurrent with that portion of any sentence previously imposed that
    remains unexpired at the time the court imposes sentence.”
Under that provision, the term of imprisonment imposed by the Lake County
court upon revocation of defendant’s probation in this case “shall be concurrent”
with the remaining unexpired term of the Jefferson County sentence, “unless the
court expressly orders otherwise.” It is undisputed that the Lake County court
here “expressly order[ed] otherwise” by imposing a sentence that was consecutive
to the remaining term of the Jefferson County sentence.
    11
       As originally promulgated, former OAR 253-12-010 (1989) provided:
         “When multiple convictions have been entered against a single defendant, the sentencing judge may impose consecutive or concurrent sentences
    as provided by ORS 137.122, 137.123 and 137.370.”
Cite as 

 (2025)                                                  137

the sentencing guidelines rule that addresses concurrent
and consecutive sentences—the commentary states that
the rule “confirms that existing statutory law controls the
sentencing judge’s threshold choice of consecutive or concurrent sentences for multiple convictions.” 

 The commentary then addresses the situation presented in this case: “If
the sentencing judge imposes the sentence in the current
case consecutively to a remaining sentence from a prior proceeding, [former] OAR 253-12-030 [(1989) (now OAR 213-
012-0030)] must be consulted for the proper execution of the
consecutive sentences.” 

        The rule that “must be consulted”—former OAR
253-12-030 (1989) (which is now numbered as OAR 213-012-
0030)—describes how the length of consecutive sentences is
to be computed:
    “When a sentence is imposed consecutively to a sentence
    imposed in a prior proceeding, the incarceration term of
    the new sentence is added to the remaining incarceration
    term of the prior sentence.”
OAR 213-012-0030(1).12 Again, that rule is premised on
the understanding that the court—exercising authority
conferred by statute—makes the discretionary decision of
whether to impose a sentence that will be consecutive to a
previously imposed sentence. And, as noted above, the commentary to the rules on concurrent and consecutive sentencing states that “[n]othing in the rules of the State Sentencing
Guidelines Board should be read to limit the court’s discretion to impose concurrent or consecutive sentences.” Oregon
Sentencing Guidelines Implementation Manual 112 (1989).
Thus, contrary to Justice Duncan’s suggestion, 

(Duncan, J., concurring), the sentencing guidelines rules do
not need to explicitly refer to existing statutory authority for
that authority to apply.

That rule was renumbered, and the current rule, OAR 213-012-0010, is identical,
except that the reference to the repealed statute, former ORS 137.122 (1985), has
been deleted.
     12
        As applied in this case, OAR 213-012-0030(1) means that the consecutive
sentence imposed by the Lake County court would be added to the end of the term
of incarceration that had been imposed by the Jefferson County court. The rule
itself does not authorize the Lake County court to impose a consecutive sentence;
it presumes that the court could do so, exercising its statutory authority.
138                                                         State v. Logston

         In summary, the text of ORS 137.123, read in context, suggests that the statute applies to a court’s sentencing
decision upon revocation of probation, and as applied here,
authorized the Lake County court to impose a term of imprisonment that was consecutive to the Jefferson County sentence that defendant was serving at the time. As discussed
next, the history of that statute does not suggest otherwise.
B.    History of ORS 137.123
          As noted above, ORS 137.123 was adopted by initiative in 1986 as part of Measure 10, known as the “Crime
Victims’ Bill of Rights.” Or Laws 1987, ch 2, § 1. In determining the intended scope of a law adopted through the initiative, our goal is “to discern the intent of the voters who
adopted it.” Burke v. Dep’t of Land Conservation & Dev., 

, 

 (2012). The ballot title described
the measure as “revis[ing] many criminal laws concerning
victims’ rights, evidence, sentencing, [and] parole.” Official
Voters’ Pamphlet, General Election, Nov 4, 1986, 49. The
issue of consecutive sentencing “received little attention in
the voters’ pamphlet.” Soto, 

. As we noted in
Soto, the ballot title explanation stated that the measure
“ ‘[s]ets consecutive sentence rules,’ ” and the explanation
section of the voters’ pamphlet stated, without further elaboration, that Measure 10 would “ ‘slightly expand circumstances under which a person … may be given consecutive
sentences.’ ” 

 (quoting Voters’ Pamphlet at 49, 52).
          The ballot title, voters’ pamphlet statements, and
media coverage for Measure 10 generally focused on victims’
rights.13 The few statements that mention sentencing indi-
     13
        For example, an endorsement from then-Governor Victor Atiyeh stated,
“This is your measure if you are among a majority of Oregonians who believe it
is time to restore equal rights to crime victims.” Voters’ Pamphlet at 53. Another
supporter, The Committee Against Unfair Trials, stated that Measure 10 was
for voters who “believe that the rights of innocent victims should be equal to
the rights of persons accused of crimes.” 

 Opponents primarily focused on the
increased costs to the courts and prison system. For example, Oregon Taxpayers
for Justice asserted that the measure would require an increase in the number
of prison beds, suggesting that at least some of the public understood that the
measure would impact sentencing and prison terms. Id. at 55.
     Media coverage reflected the same attention to victims’ rights with little discussion of sentencing. An endorsement from the editorial board of The Oregonian
stated that the measure was “a sensible proposal that moves toward correcting a
perceived imbalance in the [criminal justice] system[.]” Time to help victims, 136
Cite as 

 (2025)                                                  139

cated that the measure expanded courts’ authority to impose
consecutive sentences without specifically addressing sentences imposed upon revocation of probation. Because courts
already had authority under former ORS 137.122 (1985) to
impose a term of imprisonment upon revocation of probation that was consecutive to another sentence as explained
above, it seems unlikely that Measure 10—which was
intended to expand courts’ existing authority—would have
restricted courts’ authority to impose consecutive sentences
by eliminating the authority they had at that time under
former ORS 137.122 (1985).
         In summary, nothing in the history of ORS 137.123
suggests that it was intended to restrict a court’s authority
to impose a consecutive term of imprisonment upon revocation of probation. However, this court concluded in Rusen,

, that ORS 137.123 does not directly authorize
consecutive sentences upon revocation of probation. As I
will explain next, that conclusion is wrong and should be
overruled.
              II.   OVERRULING RUSEN IN PART
         The issue in Rusen was whether a court, upon revoking multiple terms of probation based upon a single violation,
could impose terms of imprisonment that were consecutive
to each other. The defendant contended that consecutive sentences were precluded by a sentencing guidelines rule, OAR
213-012-0040(2), that required concurrent sentences in that
situation. The state argued in response that that rule conflicted
with a different rule—OAR 213-012-0010—that expressly
incorporated ORS 137.123, and thus, authorized consecutive
sentences. On review, this court first addressed a “threshold
issue”: whether ORS 138.105(9) precluded appellate review of
the consecutive incarceration terms that the trial court had
imposed. 369 Or at 695. Much of our opinion on review was
devoted to that issue, and we concluded that ORS 138.105(9)
“precludes review of a sentencing challenge only when” certain conditions are met. Id. Because those conditions were not
Oregonian A1, C6 (Sept 12, 1986). The editorial board highlighted victim-centered provisions in the measure, including “giv[ing] crime victims more of a formal role in court procedures, protecting them from pretrial contact by defendants, allowing them to watch trials even if called as witnesses, [and] letting
them comment at sentencing and parole hearings[.]” Id.
140                                                         State v. Logston

present in Rusen, we concluded that ORS 138.105(9) did not
bar appellate review in that case. 369 Or at 695-96.
         Turning to the merits, we attempted to “harmonize” the two conflicting rules, concluding that OAR 213-
012-0010 (with its incorporation of ORS 137.123) 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.” 369
Or at 703.14 Accordingly, we rejected the state’s argument
that the trial court’s imposition of consecutive probation
revocation sanctions was authorized by OAR 213-012-0010
(with its incorporation of ORS 137.123). 369 Or at 704.
         In attempting to harmonize the two conflicting
rules, this court also rejected—in a footnote—the state’s
argument that “sentences” as used in ORS 137.123(2) should
be interpreted to include probation revocation sanctions, as
we had interpreted the term “sentences” in Article I, section 44(1)(b), in Lane, and that, if interpreted that way, then
ORS 137.123(2) itself would directly authorize the trial court
to impose consecutive sentences upon revocation of probation. Rusen, 

 n 8. We concluded in that footnote
that, “to the extent that ORS 137.123(2) applies at all, it
would apply only through OAR 213-012-0010.” 

         The conclusion that ORS 137.123 does not directly
apply upon revocation of probation is wrong and should be
overruled. As discussed above, the text, context, and history
of ORS 137.123 all demonstrate that that statute directly
authorizes trial courts to impose consecutive sentences upon
revocation of probation in some circumstances, and thus, that
statute does not apply “only through OAR 213-012-0010.” 

(Emphasis added.) The contrary conclusion in Rusen is wrong.
    14
       In my view, a better way to “harmonize” the two conflicting rules in Rusen
would have been to recognize that the rule cited by the state—OAR 213-012-
0010—is a general rule that applies to all sentences, while the rule cited by the
defendant—OAR 213-012-0040(2)—is a more specific rule that squarely applied
to the sentencing issue presented in that case. Those rules could be harmonized
by applying the principle that the specific rule controls over the general one. See
ORS 174.020(2) (“When a general provision and a particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls
a general intent that is inconsistent with the particular intent.”); Kambury v.
DaimlerChrysler Corp., 

, 

 (2002) (applying principle).
Cite as 

 (2025)                                                       141

         Rusen’s misinterpretation is understandable.
Because the court was presented with arguments about
how to harmonize two conflicting sentencing guidelines
rules, Rusen did not analyze the text, context, or history
of ORS 137.123.15 Nor did it mention the statements in the
Guidelines Manual confirming that a court’s discretion to
impose concurrent or consecutive sentences “is granted
to the judiciary by statute.” Oregon Sentencing Guidelines
Implementation Manual 112 (1989) (citing former ORS
137.122 (1985) and ORS 137.123); see also 

 (stating that
OAR 213-012-0010 “confirms that existing statutory law controls the sentencing judge’s threshold choice of consecutive
or concurrent sentences for multiple convictions” (emphasis
added)). Thus, Rusen’s conclusion that ORS 137.123 does
not directly apply upon revocation of probation was more of
an offhand rejection of an alternative argument offered by
the state than a full-blown analysis of the intended scope of
ORS 137.123.
         As explained above, analyzing the text, context,
and history of ORS 137.123 reveals that that statute directly
authorizes a court to impose, upon revocation of probation, a
sentence of imprisonment that is consecutive to a sentence
that the defendant is serving at the time of revocation.
Although a sentencing guidelines rule precluded consecutive sentences in Rusen, that rule could not deprive the court
of authority granted by statute. 

 (“While the guidelines
have been approved by the legislature, they retain their status as administrative rules. When those rules conflict with
statutes, the statutory provisions control”); Fisher Broad.,
Inc. v. Dep’t of Rev., 

, 

 (1995)
(legislative choice under statute cannot be overruled by
department regulation); Univ. of Or. Coop. Store v. Dep’t of
Rev., 

, 

 (1975) (“[A]n administrative agency may not, by its rules, amend, alter, enlarge or
limit the terms of a legislative enactment.”). Accordingly, the

     15
        Justice Duncan suggests that Rusen’s holding that ORS 137.123 does
not apply upon revocation of probation was “fully considered” because the court
considered the text, context, and legislative history of a different statute, ORS
137.545(5)(b). 

 (Duncan, J., concurring). But the court’s analysis of
text, context, and legislative history of one statute is not also a full consideration
of the text, context, and history of a different statute enacted three years earlier.
142                                          State v. Logston

second holding in Rusen—that consecutive sentences were
not authorized in that case by statute—should be overruled.
         In conclusion, I would decide this case on statutory
grounds and hold that, upon revoking defendant’s probation,
the Lake County court had authority under ORS 137.123 to
impose a term of imprisonment that was consecutive to the
Jefferson County prison sentence that defendant was serving at the time. In so doing, I would overrule the conclusion in Rusen, 

 n 8, that ORS 137.123 does not
directly authorize consecutive sentences upon revocation of
probation.
         Because I fully agree with the majority opinion’s
disposition of this case and its analysis of Article I, section
44, I respectfully concur.
           James, J., and Masih, J., join in this concurring
opinion.