State v. Newell
238 Or. App. 385
Or. Ct. App.2010Background
- Defendant pled guilty in Sept 2006 to four counts of second-degree encouraging child sexual abuse based on possession of child pornography.
- Sentencing on the four counts varied: first count under grid block 5-F with presumptive probation but upward departure to 3 years' probation; counts 2–4 under grid blocks 5-C, 5-B, 5-A with downward departure to 3 years' probation each.
- In April 2008, court revoked probation on all four convictions for five violations, imposing 6, 12, 14, and 16 months imprisonment respectively, totaling 48 months, served consecutively.
- At revocation, defendant argued that ORS 137.123 requires findings for consecutive revocation sanctions; he had waived jury findings at guilty pleas.
- The State argued (a) guideline rule OAR XXX-XXX-XXXX(2)(b) permits consecutive revocation sanctions without ORS 137.123 findings, and (b) ORS 137.123 does not apply to probation revocation, only initial sentencing.
- The court and appellate court held that (1) ORS 137.123 applies to sentencing, not probation revocation, and (2) the guidelines distinguish revocation sanctions from true “sentences,” allowing consecutive sanctions based on multiple violations under OAR XXX-XXX-XXXX(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 137.123 applies to probation revocation sanctions | State argues ORS 137.123 controls and findings are required. | Newell contends ORS 137.123 applies to revocation and requires findings; without them, sanctions must be concurrent. | ORS 137.123 does not apply to probation revocation sanctions; findings are not required for consecutive revocation sanctions under the rule. |
| Whether administrative rule OAR XXX-XXX-XXXX(2) allows consecutive revocation sanctions without 137.123 findings | State relies on the rule to permit consecutive sanctions. | Newell argues rule conflicts with statutory requirements and does not override 137.123. | Rule permits consecutive sanctions for separate violations; does not require 137.123 findings and is consistent with probation-revocation procedure. |
| Whether sentencing guidelines have statutory authority to override ORS 137.123 | State contends guidelines have statutory law authority and control. | Newell argues guidelines are administrative rules, not statutes, so statutes govern when they conflict. | Guidelines are administrative rules; when in conflict, statutes control; they do not override ORS 137.123 unless harmonized. |
Key Cases Cited
- State v. Norris, 188 Or.App. 318 (2003) (guidelines are not statutes for Article IV publication purposes; administrative rules prevail unless reconciled with statute)
- Langdon v. Langdon, 330 Or. 72 (2000) (guidelines have authority of statutory law but are not statutes; not subject to publication requirements)
- Oregon v. Ice, 129 S. Ct. 711 (2009) (Supreme Court held jury trial right not applicable; cited regarding waiver of jury findings in probation revocation)
- State v. Hoffmeister, 164 Or.App. 192 (1999) (probationary sentence reclassification cannot occur after execution; no authority to alter executed sentences)
- State v. DeCamp, 158 Or.App. 238 (1999) (no inherent authority to modify executed sentences in revocation context)
- Avis Rent A Car Sys., Inc. v. Dept. of Rev., 330 Or. 35 (2000) (admin rule conflicts with statute; statutory control)