State v. Rusen, 509 P.3d 628

Background

Rusen pleaded no contest to four counts of second-degree sexual abuse (separate dates); as part of a plea the state recommended downward dispositional sentences to concurrent probation.
The plea/judgment stated that, if probation were revoked, the court "could impose consecutive sentences," but Rusen expressly reserved the right to argue for concurrent sanctions at revocation.
Less than a year later Rusen committed a new offense and conceded a probation violation; the trial court revoked all four probation terms for that single violation and imposed consecutive incarceration terms (totaling 106 months).
Rusen appealed, arguing OAR 213-012-0040(2)(a) requires concurrent incarceration when multiple probation terms are revoked for a single violation.
The State argued (1) ORS 138.105(9) bars appellate review because the consecutive-sentence issue flowed from a stipulated sentencing agreement, and (2) ORS 137.123(2) (and OAR 213-012-0010) authorized consecutive sentences because the underlying offenses were separate-episode crimes.
The Oregon Supreme Court held the sentence was reviewable (the parties had not stipulated to a specific sentence) and that OAR 213-012-0040(2)(a) governed revocation sanctions, so consecutive incarceration for a single revocation violated the rules; ORS 137.123(2) applies to initial sentencing, not revocation.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Rusen)	Held
Whether ORS 138.105(9) bars review of the consecutive-sentence claim	The plea/judgment agreed the court could impose consecutive sentences on revocation; that is a "stipulated sentencing agreement" so appellate review is barred.	The agreement merely allowed the State to seek consecutive sentences and left Rusen free to argue for concurrent ones; not a stipulated sentencing agreement under Kephart/ORS 135.407, so review is allowed.	Review permitted. ORS 138.105(9) bars only stipulated sentencing agreements of the kind illustrated by ORS 135.407 (specific stipulations to grid block or specific sentence); parties did not stipulate to a particular sentence here.
Whether ORS 137.123(2)/OAR 213-012-0010 authorized consecutive incarceration as a probation-revocation sanction	Because the underlying offenses were separate-episode crimes, ORS 137.123(2) (incorporated by OAR 213-012-0010) authorized the trial court to order consecutive sentences on revocation.	Probation-revocation sanctions are governed by the sentencing guidelines (OAR 213-012-0040); when multiple probation terms are revoked for a single violation, the judge must impose incarceration concurrently under OAR 213-012-0040(2)(a). ORS 137.123(2) governs initial sentencing, not revocation.	Held for Rusen. OAR 213-012-0040(2) governs revocation sanctions and requires concurrent incarceration for multiple terms revoked by a single supervision violation; ORS 137.123(2) applies to initial sentencing and does not override the guideline rule for revocations.
Scope of ORS 137.545(5)(b) (“may revoke probation and impose a sanction as provided by rules…”)	The word "may" permits sentencing courts, upon revocation, to impose sanctions outside the guidelines.	Legislative history shows "may" was intended to give judges discretion whether to revoke; if revoking, courts must impose sanctions as provided by the guidelines.	Held for Rusen. "May" grants discretion to revoke, but if the court revokes it must follow sanctions in the guidelines (OAR 213-012-0040).

Key Cases Cited

State v. Kephart, 320 Or 433 (1994) (construed "stipulated sentencing agreement" narrowly; bar to review applies to stipulations like those listed in ORS 135.407).
State v. Adams, 315 Or 359 (1993) (earlier construction that review is barred when parties expressly stipulated specific sentencing components).
State v. Martin, 320 Or 448 (1994) (confirmed that agreements not of the ORS 135.407 types do not trigger the review bar).
State v. Lane, 357 Or 619 (2015) (recognized mandatory nature of OAR 213-012-0040(2)(a) and addressed constitutional limits on applying that rule).
State v. Miller, 317 Or 297 (1993) (discussed when certain guidelines provisions were intended to apply only to single-episode crimes).
State v. Capri, 248 Or App 391 (2012) (Court of Appeals decision supporting that portions of a sentence not agreed to remain reviewable).
State v. Langdon, 330 Or 72 (2000) (explained that sentencing guidelines rules, once approved by legislature, carry the force of statute).