*1 Appeals January Argued of the trial court and Court decisions and submitted September court with instructions remanded to the trial reversed and 16,1988 denied November reconsideration OREGON, OF STATE Review, Respondent v. CARMICKLE, WILBUR
MARK
Review.
Petitioner on
S34599)
B68-501;
(DC
A41918; SC
CA
Robert C. the cause and filed the petition petitioner on review. Timothy Sylwester, Attorney A. General, Salem, Assistant
argued response respondent the cause for on review. With him on the petition Frohnmayer, Attorney
to the were Dave *2 Virginia General, and Linder, L. General, Solicitor Salem. CAMPBELL, J.
CAMPBELL, J. determine if in this case to accepted We review to refuse defendant can elect criminal convicted hold that such imposed. We demand that sentence be result Because of the make such an election. defendant defendant raised secondary which the not reach issues we do for review. petition in his this 25,1986, defendant was arrested in
On April A FALSE REPORT charge of INITIATING case on 1,May about a stolen car. On Eugene Department Police report his recognizance on he was released his own 31, 1986, an July On previous officer on a conviction. recognizance the defendant’s revoking order was entered day on previous of his arrest the a ROB- agreement because After charge. THIRD DEGREE BERY IN THE until trial and conviction custody remained his 30,1986, in September this case. trial court found jury The defendant waived a and the REPORT, him is a A FALSE which guilty INITIATING of 30 penalty days C with a maximum Class misdemeanor and a fine ORS 162.375. After the trial court found jail of $500. following occurred: guilty, the defendant *3 honor, of defendant’s DEPUTY “Your [recital previous criminal State’s DISTRICT record]. that placed ATTORNEY: concern is the defendant be in matter on this with requirement defendant have no Hemphill Mr. contact with any William family.” member of his “I pro- like to address the issue of DEFENDANT’S would count, Carmickle, my ATTORNEY: bation. Mr. days has an of 30 that can spent excess in this be credited toward sentence to, I ask the court rather case. would give him on to place than of, essentially, him credit the sentence person is a who does for time served. He situation; a supervised in a do well parole-type situation. probationary year and May He in of this paroled was in the time his sta- point at this tus is still effect.
££* * * * * hope
“It would be our that he would be able to do whatever time the court feels type is fair for this of crime and be done with the case. I realize that the court power impose still has to a financial penalty, pay, ability if it he feels has some given however, the fact that he perhaps stands to be incarcerated for charge, six months or so on the other * * * appropriate I think it would be give straight particu- him a sentence, larly already since he has served the possible custody.” maximum of time going suspend imposition THE COURT: “I am years going sentence for five and I am put you to the Corrections Division, and this will be concurrent any probation.” with probation.” DEFENDANT: “I don’t want right THE COURT: “You don’t have a choice now! I’m imposing days County in the Lane days Jail, with 60 credit served, for time considered served.” DEFENDANT: “That’s more than the maximum
penalty. penalty only The maximum days.” DEFENDANT’S “I think that Mr. correct, Carmickle is ATTORNEY: its a C Misdemeanor.
<<% * * * “Right you days THE OK, COURT: are. with 30 *4 days credit.” you’re going put honor, DEFENDANT: “Your if me probation, you might as well make it felony joint a and send me to the going probation.” because I’m not to do you’re then do you “If don’t THE COURT: and here to come back going probably fine, a up imposing I’m to end going fine, I’m not a but pay have to you’ll time.” that at this imposing honor, doing you’re all “Obviously, your DEFENDANT: me it, give if you’re going delaying it over fine, get me a fine and give way going no that I’m There is with. I can’t when years probation make five parole. make a six month even you If refuse of this. give you copy “I’ll THE COURT: conditions of accept in when have to be back you’ll just then you’re out.” just get as it over with might “You well
DEFENDANT: now.” right best time to probably “This isn’t the
THE COURT: it. Think about it a little bit discuss again it when then we’ll talk about out. The court’s recess.” you’re 30, 1986, the trial court entered September On TO THE OF PROBATION ORDER JUDGMENT AND “Imposition It recited that DIVISION. CORRECTIONS condi- years.” only special suspended for 5 of sentence of the sheriff days custody in the were: “30 tions of shall not and “defendant days credit for time served” with 30 of, the victim William contact, premises or be in or about the notation: family.”1 It also contained Hemphill J. or his sign.” refused to “Defendant Appeals, to the Court of appealed
The defendant Hemphill A FALSE the crime of INITIATING was not a victim of William J. trier of fact the trial from which the introduced at There was evidence REPORT. by driving damaged it into a wall his vehicle have believed that could in front of disabled a cul-de-sac it until it became and then continued to drive proceeded on foot to Hemphill’s the vehicle and The defendant then left house. reported had police that his vehicle he called the Poolroom from where Charlie’s police left the car Hemphill as the man that the defendant to identified been stolen. in the cul-de-sac.
which affirmed without opinion.
Carmickle,
State v.
87 App
Or
552,
(1987).
SCOPE OF REVIEW
Because the State argues that our scope of review in
limited,
this case is
we will first examine that matter.
A criminal defendant has no constitutional
right to
appeal.
Gladden,
Gairson v.
88, 90,
247 Or
(1967).
In this case the defendant’s right appeal to the Court of Appeals was derived 138.040, from ORS pro- which vides: may appeal “The defendant Appeals to the Court of from a
judgment on a in court, conviction a district or circuit may cross-appeal appeals pursuant when the state to ORS 138.060(3).Upon appeal, an cross-appeal, any or decision of the reviewed, court an may intermediate order proceeding or be sentence of the court be reviewedas to whether it exceedsthe by maximum sentence allowable law or unconstitutionally judgment cruel and A suspend- unusual. ing imposition or execution of sentence placing a defendant on shall judgment shall be deemed a on a conviction and subject appeal expiration not be after of the time specified in except may ORS provided 138.071 as in ORS 138.050 and 138.510 to If in judgment 138.680. of the appellate punishment imposed by court the the sentence appealed from exceeds the maximum by sentence allowable law unconstitutionally unusual, or is appellate cruel and court shall direct the appeal court from which the is taken to impose punishment that should be administered.”
The state in argues effect that the ORDER OF PRO- BATION was a “sentence” and that appeal defendant’s was limited “to whether it exceeds the maximum sentence by allowable unconstitutionally law is cruel and unusual.” disagree. specifically We ORS 138.040 provides: “A * * * judgment suspending imposition of sentence or a placing defendant on probation shall be deemed a judgment on * * pro- the same statute phrase *.” The first conviction Appeals the Court of may appeal “The defendant vides: * * * * * *.”2 in a district court on a conviction judgment from is not held that previously This court has 736, McClure, 732, P2d 1009 In State v. 295 Or sentence. (1983) said: we not the arguing state “The answers sentence, ex rel v. relying State Dillavou imposition of a (1975).
Foster,
sup-
To further
273 Or
We the review not limited appeal on conviction and judgment by it the allowable law or is to whether exceeds maximum and in the of a sen unconstitutionally cruel unusual as case tence.
THE HISTORY OF PROBATION IN OREGON The term
Probation was unknown at common law.3 by Augustus, was first used a boot-maker “probation” John Boston, in in 1841 Beginning who lived Massachusetts. practice people started the of to him Augustus having released charged being who were with the offense of a common drunk- to people ard. Later convicted other offenses were released kept journal help him. He in which he recorded his efforts to 1,100 with probationers. Augustus generally over credited the father the first officer. being and (1983); and Gobert, Cohen and The Law of Probation Parole 7 Cromwell, and in the Killinger, Kerper and Probation Parole (1976). 22 System Criminal Justice 2 Martin, 583, (1978) by State v. P2d in the Justice 282 Or 580 536 cited dissent point. in under and
Jones is not
It was decided
the 1975 versions
ORS 138.040
138.050,
materially
which have been
in 1977 and 1985.
amended
3
States,
27, 52, 37
United
Supreme
Court Ex Parte
242 US
The United States
72,
(1916)
power
indefinitely
inherent
S
8 Oregon, 1845-1864,
The General Laws of compiled by Deady, provision annotated M. P. made no parole for gave “power but grant reprieves, the Governor and pardons, conviction, crimes; commutations after for all * * General Laws Oregon, p (Deady ch 449 § 1845-1864).
The Oregon Legislature in 1905 enacting chapter gave power the circuit courts to grant parole to certain persons who had been a felony convicted of but who had been delivered to the penitentiary. warden of the The persons qualified who were allowed to at large super- remain under the vision of the court or supervision under of a Aid Prisoners Society. by chapter 187, The same legislature, gave the gover- power nor the to parole persons they certain after had served part of penitentiary. their sentence in the In legisla- 1911 the by chapter ture 127 created a Parole Board report Governor cases where it parole recommended granted. Chapter 176 of the legislature created a state to supervise paroled by officer people governor and the circuit courts.
In legislature gave first time the trial authority place courts criminal on probation. defendants Chapter of Oregon provided part: Laws of 1931 jurisdiction 1. having
“Section The courts of criminal or actions, quasicriminal including actions for violation of municipal appear when ordinances it shall that the best inter- *7 public ests of as the as well of the defendant will be subserved thereby, power suspend imposition shall have the or execu- any tion of sentence for crime or shall offense and also have power place probation the defendant on for definite or period, years. indefinite exceed five ‡ ‡ ‡ ‡ may any 3. court
“Section The shall determine and at modify probation time the conditions of include probationer among following, any the or them other: That the (1) habits; (2) injurious shall avoid or shall vicious avoid places persons disreputable character; (3) of or harmful probation by court; report shall to the officer as the directed (4) permit probation place the to visit him at shall officer his (5) elsewhere; inquiries shall all abode or answer reasonable (6) officer; part probation faithfully on of the the shall work at (7) employment; specified shall remain within a suitable fine, several any, if in one or (8) pay his or her shall place; aggrieved to the restitution sums; (9) reparation or make shall offense, by in an amount loss caused damage or parties for the (10) depen- court; support his by shall the to be determined dents.” probation “No that: chapter provided
The same this act shall under appointed officer, assistants or clerical any state, county or from any compensation receive * * 1931, 396, 5. ch Or Laws municipality; § created a 397 also by chapter legislature The 1931 legisla- In probation commission. five-member state Or probation. state board joint ture created 266. Laws ch have been Oregon laws of probation
Although concept has the basic many times since amended 137.010(2) part: in provides now the same. ORS remained offense, if is of an the court person is convicted of “When public as well interests of the opinion that it is the best defendant, imposition may suspend the the court as of the five any period of not more than of sentence for execution *” * * years. general conditions provides 137.540 now ORS as follows: “(1) may place The court the defendant subject following general conditions to the which shall probationer by shall: specifically deleted the court. unless “(a) supervision and control of the under the Remain probation department. department
“(b) the direction of the Abide representatives. and its
“(c) truthfully all reasonable Promptly and answer probation per- relating to inquiries officer formance.
“(d) report monthly a manner Truthfully at times representative. probation department or its specified by the permis- “(e) Oregon until written in the State of Remain department or its granted by leave is sion to representatives. employment, “(f) gainful full-time Find and maintain Any of both. schooling, full-time combination
approved or a *8 10 requirement by
waiver of this finding must based on a the stating court the reasons for the waiver. employment
“(g) Change neither nor residence without promptly informing probation department represen- the or its tatives.
“(h) probationer Permit the officer to visit the probationer’s or the residence or work site.
“ (i) both, fingerprinting photographing, Submit to requested by probation department supervision when for purposes. laws,
“(j) Obey municipal, county, all state and federal. “(k) fines, costs, Pay including probation attorney costs by fees or restitution or combination thereof ordered payments court on a schedule of determined the court.” criminal and demand that Can a defendant refuse sentence be imposed? Appeals previously
Although Oregon Court of has matter,4 impression question considered this it is a of first this court. on this from other are col- subject jurisdictions
Cases
Defen-
“Right
lected in an annotation
entitled:
of Convicted
(1984).
4th
The
dant
to Refuse Probation.”
28 ALR
736
Alabama, Arizona, California,
Idaho
annotation
states
recognized
“have held or
that where
Minnesota
of the sentence
of a convicted
imposition
or the execution
proba-
defendant
is offered
suspended
and the
tion,
elect to serve
the defendant
refuse the
imposition
or to demand
suspended
sentence
Id. at 737.5 Other
reached the
states which have
sentence.”
Carolina,
Alaska,
Dakota
same result are
North
South
Wisconsin.6
4
Crites,
(1984);
327,
353,
State v.
App
rev den
Culbertson,
(1977).
363, 372,
App
1224
29 Or
563 P2d
5
State,
Montgomery,
(1944);
309, 16
State v.
App
v.
115
Persall
So2d 332
31 Ala
Osslo,
75, 323
397,
(1977); People
583, 566
cert den 357
v.
P2d
Ariz
P2d
50 Cal 2d
1329
State,
Randolph,
(1964);
291, 392
State v.
(1958);
Franklin v.
87 Idaho
P2d 552
US 907
(Minn 1982).
NW316
2d 508
6
Ritchie,
(1977);
182,
(Alaska)
State v.
v. State
243 NC
90
Brown
The states are probation refuse cannot that a defendant in effect hold Beer, v. City Lima 107 NE2d See Ohio and Nebraska. (Neb 552, 556 Kinney, v. State 1950); 350 NW2d (Ohio 255 1984). Parole Gobert, Probation and The Law of
Cohen and (1983), state: prison, offender, possibility avoiding the “The faced with accept delighted parole and is usually requests the In those rare cases where conditions. reasonable of onerous reject probation or because seeks to offender recognized right to conditions, generally the courts have contrary so, support view. although a few authorities do “* * * moreover, parole, Any probation or right to refuse the entire only accept reject can limited. The offender conditions; right accept condi- is no some package there tions but not others.”7 Proba- Company published
In 1933 MacMillan Glueck, Professor by Sheldon Justice edited and Criminal tion chapter A in that book School. Harvard Law Criminology, was by Probation” Problems Raised Legal entitled “Some and Legislation of Penal Warner, Professor by Sam B. written Gobert, “support authors, cite to only probation Cohen and cases that the States, (5th 1937); v. Cooper State Cir v. United contrary 91 F2d 195 view” are Crites, supra, (1984); Kinney, State v. note 3. 217 Neb 350 NW2d
Administration, Harvard Law chapter School. In that page at 27 Professor Warner states: “No defendant can be forced to accept probation or suspended Everywhere sentence. defendant can compel pass judge judgment with reason- able celerity.”8
Killinger, Kerper Cromwell, Probation Parole in the Criminal System (1976) Justice 54-55 state: general “The rule imposed is that cannot be upon a defendant without his If consent. conditions are
imposed defendant, without the consent of the and then vio- lated, question there is a of whether or not the violation can be probation. used to revoke The laws of several states thus provide probationer that the must be furnished with a written statement of the terms of his and that he must accept the conditions of being given before his lib- (Footnotes erty.” omitted.)
Oregon does not have a requires statute which *10 defendant to accept a written statement of the terms of his probation before he given is his liberty. However, the printed form which this defendant was asked to sign contained the following:
“I accept understand and the Conditions of Probation by under which I sentencing have been released I Court. agree by to fully abide and conform to them and understand my may failure to do so my proba- result the revocation of by tion the Court.” probation
Since statute, is a creature of we must look to the statutes of to Oregon determine if the legislature give intended to convicted criminal defendants the election to probation refuse and demand that sentence imposed. The statutory scheme spans period of time from 1931 through 1987. There legislative is no recorded history for the early years. In years the later there is none legisla- which shows the question. ture’s clear intent as to our From time to time after the legislature author- ized the trial courts to impose special probation conditions of which invaded the defendant’s rights Oregon under the (1933) Morse, by Wayne Probation and Criminal Justice was reviewed L. Dean Oregon School, (1933). of the L Law Or Rev 258 He commented that it was an reading. excellent book that deserved wide are now special Those conditions United States constitutions. part provides: under ORS 137.540 which codified conditions, “(2) may general In the court addition to the probation protection of impose special for the conditions offender, both, including, public of the or or reformation to, probationer shall: but not limited that the «* * * * *
“(b) by qualified polygraph examination Submit by probation polygraph designated examiner the court or by under terms and conditions set the court. officer «* * * * *
“(e) urinalysis Submit to random at direction probation officer.
<<* * * * *
“(j) test Submit to breath test or blood to determine upon request blood alcohol content of a officer hav- ing grounds reasonable to believe the results would disclose may evidence of a violation. This condition be set reasonably nature of the when it is related to the offense treatment the offender.
“ (k) own, possess any Neither nor control firearm or specified weapon. other
“(L) residence, person, property Submit vehicle and having grounds search officer reasonable believe such search will disclose evidence of a vio- reasonably This lation. condition be set when it related to the nature of the offense or treatment of the offender.” point legislature going is that if the to ask a rights, his or her constitutional then nec- waive essarily given the defendant must be a choice. A choice the constitu- accept probation what? A choice to waive reject probation keep tional the constitutional rights *11 rights. Oregon legislature may
Although it require a defendant’s consent have intended time, by giving that that the trial courts apparent since authority impose special probation conditions which it has in effect rights, invade the defendant’s constitutional accept reject probation. defendant an given the election case the argued particular It could be that in this given defendant was not to elect to right reject probation special probation required because none of the conditions of him any However, to waive of his constitutional rights. we legislature hold that intended that in order an to have probation system, probationers efficient all should be treated alike and each should have an election to reject probation. only
We hold that convicted criminal defendant has right probation to refuse and demand that sentence be imposed. We do not hold that because a defendant has accepted probation rights his “waiver” of his constitutional necessarily voluntary.” question “free and That is a different and we do not reach it in this case. See LaFave, and Search Seizure, (2nd A Treatise on the Fourth Amendment 133 ed 1987).
The trial court the Court of are reversed. Appeals This case is remanded to the trial court to vacate the ORDER impose upon OF PROBATION and sentence the defendant. JONES, J., dissenting. sentencing imposed very questionable a judge
sentence, majority which in turn has led a of this court to an equally questionable decision. “any clearly provides
ORS 138.040
sentence of
the court
be reviewed as to whether it exceeds the max-
imum
unconstitutionally
sentence allowable
law or is
cruel
unusual,”
else.
an
nothing
ORS 138.040 does allow
appeal
very
for trial error in addition to the
restricted appeal
of a
a
majority’s reading
sentence. The
of ORS 138.040 is that
of a sentence
judgment
suspending imposition
placing
judgment
defendant on
is a
on
conviction but is
justi-
not a sentence. Such a strained construction cannot be
fied. Of course a sentence to
is a sentence.
Martin,
In State v.
(1978),
282 Or
The court then reviewed the sentence of probation within the restricted statute, review of sentences under the former which contained the same as the language present statute limiting review, except for consideration of proportionality, which has since (1975) (amended been deleted. ORS 138.050 Or Laws 372, 14). ch § sum,
In this interpreted court has ORS 138.050 to include judgment review of a as a sentence. If a judgment of probation is a 138.050, sentence under ORS it must be a sentence under ORS is, 138.040. If it gowe no further with this case. The sentence was within statutory limits. The sentence may well have been unusual and called for a totally unwarranted waste of the precious state’s correc- resources, tions but defendant does not raise grounds these for relief.
Incidentally, the sentencing judge thought she had imposed a sentence. afterwards, She wrote “the sentence imposed in this case presently appeal.” on (Emphasis added.) As the saying old if goes, duck, it looks like a acts like a duck and sounds like a duck, by golly, it’s a duck. The majority has distorted a plain old sentence into a and, non-sentence indeed, a sequitur. non issue,
On the second the majority has trapped itself into allowing every criminal defendant receiving a sentence to tell the sentencing judge what is or is accept- and, able to him or time, her at the same to direct how much money the state spend must to incarcerate the defendant.
In discussing issue, the first I referred to ducks. With respect issue, to the second we a example have classic of a tail wagging dog. Who is in charge? The offender or judge? Under meager have, corrections resources we coupled with today’s case, decision in this felony Class C offender can refuse requires, example, mental health release, treatment or work and instead can being demand sentenced to the Oregon Penitentiary State five-year for the average
maximum, knowing the actual sentence served will final days year a maximum of one before dis- with able off of charge. criminals should not be to order Convicted hope corrections menu. I would a sentenc- their own selected appropriate know more about is an ing judge would what the offender. sentence than course, judge if a encounters one of these offenders
Of can judge refuses treat that refusal as who *13 not have out and go violation. The offender does to probation. every to vio- commit another crime violate But grounds against lation the offender’s record and often works cooperate It to for additional sanction. should be. Failure with ignored. the court should not be tolerated
CONCLUSION have It case should never come this court. This — — a fine of $750 involves a sanction so minor maximum go let case far. The no court should have ever the this that trial imposed a the fine. violation and court should have found done, than times that probably was not more ten Because this and, squandered appeal has in this even money much been worse, has into injected law been the books with questionable the majority. decision of the
Peterson, J., dissenting opinion. in this joins C. J., GILLETTE, dissenting. of join part in the first the
I should like to be able Jones, J., opinion dealing of with the separate dissenting to ORS scope pursuant this review appropriate of court’s like to so because the inter- and 138.050.1 should do 138.040 scope its of review of majority today places on pretation the — sentences, they are whatever sentences of — is awry. call them pleased the majority else of construction the problem is that this court’s McClure, v. 295 awry in in State went statutory scheme (1983). The in that case P2d issue was Or person’s arrest county jail in a between spent whether time county jail of against period credited and trial had At issue was probation. ordered as a condition of incarceration for credit time chapter dealing ORS with portion of served. explained This court problem the and its answer to it way: this “If actually defendant had impris- received a sentence of onment, county jail either in a custody the of the Correc- Division,
tions imprisonment post-arrest statutes make it clear that his * * * time must be credited to his sentence. In case, present however, judge suspended imposition placed defendant’s sentence him on for two * * * years. * * * position “Defendant’s basic is that the statutes require given that he be already credit for the time he was * * * confined. “The state arguing answers is not the * * * * * * imposition of a sentence con- [citation omitted]. [I]t tends statutory that the scheme Chapter contained in 137 of Oregon clearly separates Laws ‘imposition of a sentence’ grant probation. from a agree. We Probation is an alter- imposition native to the a sentence. ORS 137.010. This has not received a imprisonment, sentence mandating statutes pretrial credit do not confinement ” apply. Id. at (emphasis 735-36 supplied). course,
Of I recognize that we are talking about a *14 different statute in this case. But McClure seems to stand for the proposition, all too readily (in acceded to my opinion), that the imposition sentence, is not a as a matter statutory construction. The interworkings Chapters ORS 137 and 138 are too close for me to contemplate calling the imposition a “sentence” in one chapter, but not the other. legislative Where possible, correction is tryI adhere even to those pieces of statutory construction I think wrong. McClure belongs in that category but, because I feel by it, bound I am not able to join in the part first of the separate dissenting opinion. (for
Happily me), no such constraints present are with respect to the second half of opinion. It job is the of a judge trial to identify the circumstances likely most to turn an offender into a useful citizen. If the offender could do that for himself, the chances are that he would not be before the trial judge in the first place. today Yet offender, we make the the judge, the master of his dispositional own alternatives. Courts commonly are unjustly decried for allegedly handing a Now, overcrowding with the get jail. out of keys
prisoner fairly it will more experiencing, are currently we problem court, least, doing something even this at decry possible — in. get prisoner keys handing more bizarre I dissent.