State v. Brand
257 Or. App. 647
Or. Ct. App.2013Background
- Defendant pled guilty to Counts 1, 2 (unlawful delivery to minors) and Count 4 (second-degree sexual abuse) under a plea agreement.
- Counts 1–2 received downward dispositional departures and Count 4 received downward durational departure; probation for Counts 1–2 and a 10-month incarceration plus 36 months post-prison supervision for Count 4 were imposed.
- In 2011, defendant admitted a probation violation for consuming alcohol (blood alcohol content 0.15%).
- Trial court revoked probation and imposed consecutive incarceration sanctions of 27 months (Count 1) and 29 months (Count 2) based on a single violation.
- Defendant argued the court could not impose consecutive sanctions for a single probation violation; the state offered no argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OAR 213-012-0040(2)(a) requires concurrent sanctions for a single probation violation. | State: may impose separate sanctions; could be consecutive. | Duncan: must impose concurrent sanctions for a single violation. | Sanctions must be concurrent. |
| Whether the interpretation of OAR 213-012-0040(2)(a) precludes arguing a constitutional claim. | State: could raise Article I, section 44 claim if applicable. | Duncan: constitutional issue not addressed here. | Court declined to address constitutional claim as prudential. |
Key Cases Cited
- State v. Lewis, 257 Or. App. 641 (Or. App. 2013) (single violation requires concurrent incarceration when multiple terms revoked)
- Stokes, 139 Or. App. 359 (Or. App. 1995) (consecutive revocation standards under prior rules)