State v. Isbell

*525KISTLER, J.

Defendant was convicted of three counts of second-degree robbery. On appeal, he argues that the court erred in imposing Measure 11 sentences on the last two counts. We affirm.

Defendant was charged with four counts of second-degree robbery. The robberies occurred at four different locations on four different days. The first count was dismissed, and defendant pled guilty to the remaining three counts. If defendant had been sentenced under Measure 11, he would have received a 70-month sentence on each of the three counts. See ORS 137.700(2)(a)(R). Defendant argued below, however, that ORS 137.712(2)(d) authorized the trial court to impose a guidelines sentence on all three counts because, among other things, he did not have a “previous conviction.”1 Defendant had not been convicted of any crime before he committed the three robberies, and he argued that the phrase “previous conviction” refers to a judgment of conviction that had been entered in the register before the trial court imposed sentence on the three counts of robbery.

The state agreed that defendant did not have a “previous conviction” with respect to the first robbery count and that ORS 137.712 authorized the court to impose a guidelines sentence on that count. It reasoned, however, that defendant’s conviction on the first count of robbery constituted a previous conviction that barred him from receiving a guidelines sentence on the remaining two counts. The trial court agreed with the state. It imposed a 39-month sentence on the first count and consecutive 70-month sentences on the remaining two counts.

On appeal, defendant raises the same issue that he raised below. He argues that the trial court erred because it *526misinterpreted the meaning of the phrase “previous conviction.” As noted above, ORS 137.712(2)(d) provides that, when a defendant is convicted of second-degree robbery, he or she can receive a guidelines sentence only if, among other things, “the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.” The statute also defines the phrase “previous conviction.” It means “a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode.” ORS 137.712(6)(b).

Despite that definition, the parties continue to debate what “previous conviction” means. Focusing on the word “entered,” defendant argues that “a conviction * * * entered prior to imposing sentence” means a judgment of conviction entered in the register before the sentence was imposed on the current crime. The state responds that defendant makes too much of a single word. In its view, the term “conviction” cannot be read to mean “judgment.” It follows, the state reasons, that the entry of a conviction is necessarily a separate event from the entry of a judgment of conviction.

The word “conviction” has two generally accepted meanings. Vasquez v. Courtney , 272 Or 477, 480, 537 P2d 536 (1975). As the court explained in Vasquez:

“The first [meaning] refers to a finding of guilt by a plea or verdict. The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court.”

Id. It follows that, under Vasquez, the initial question is whether the legislature intended that the word “conviction” would refer to a finding of guilt or to a judgment of conviction. See State v. Rodarte, 178 Or App 173, 35 P3d 1116 (2001); State v. Allison, 143 Or App 241, 923 P2d 1224, rev den 324 Or 487 (1996). In analyzing that question, we look initially to the text and context of ORS 137.712. PGE v. Bureau of Labor and Industries, 317 Or 606, 611-12, 859 P2d 1143 (1993).

ORS 137.712(6)(a) defines the term “conviction.” It provides that “ ‘[c]onviction’ includes, but is not limited to” a *527juvenile court adjudication and an out-of-state conviction for a crime that has an Oregon counterpart. ORS 137.712(6)(a). The listed examples make clear that the term “conviction” includes adjudications that might not otherwise be viewed as such. Those two examples, however, do not expressly or by implication resolve the question presented by this case, and we note that the legislature specifically provided that they are not exclusive.

In other parts of ORS 137.712, the legislature used the term “conviction” to refer to a finding of guilt. ORS 137.712(l)(a) provides that “when a person is convicted [of certain crimes], the court may impose a [guidelines] sentence” rather than a Measure 11 sentence. Similarly, ORS 137.712(2) provides that a “conviction is subject to” a guidelines sentence if certain criteria are met. See also ORS 137.712(2)(a)-(d) (using conviction in the same manner). More specifically, the subsection that applies here provides that, “[i]f the conviction is for robbery in the second degree,” a guidelines sentence may be imposed if, among other things, the “defendant does not have a previous conviction” for certain specified crimes. ORS 137.712(2)(d).

The legislature repeatedly used the word “conviction” in ORS 137.712 to refer to an event that precedes sentencing; that is, it repeatedly used the word to refer to a finding of guilt. The court has explained that the “use of the same term throughout a statute indicates that the term has the same meaning throughout the statute.” PGE, 317 Or at 611. That rule of construction leads to the conclusion that the term “conviction” means a finding of guilt in both the definition of “previous conviction” and the remainder of the statute. Defendant, however, seeks to avoid the force of that rule. He notes that, in defining the phrase “previous conviction,” the legislature referred to a “conviction that was entered.” He also notes that judgments of conviction are entered in the register. It follows, he reasons, that the use of the word “entered” in the definition of previous conviction shows that the legislature used the term “conviction” differently in that definition from the way it used it in the remainder of the statute.

*528Defendant places more weight on the word “entered” than it will bear. ORS 7.020 provides that in every action, suit, and proceeding, the circuit court shall maintain a register, which will reflect “[t]he date of making, filing and entry of any order, judgment, ruling or other direction of the court in or concerning [an] action, suit or proceeding.” (Emphasis added.) Contrary to the assumption that underlies defendant’s argument, judgments are not the only judicial acts that are entered in the register. Rather, every “order, * * * ruling or other direction of the court” is also entered. See ORS 7.020(2). In this case, for example, the case register shows that defendant’s convictions — the findings of guilt based on his guilty plea — were entered in the register. The judgment of conviction was later entered in the register. Because findings of guilt and judgments are both entered in the register,2 the legislature’s use of “entered” in ORS 137.712(6)(b) provides no reason to depart from the general rule that “conviction” has the same meaning throughout ORS 137.712. See PGE, 317 Or at 611.

The context leads to the same conclusion. When the legislature has intended to refer to the entry of a judgment in a criminal action, it has used the term judgment together with the term entry. ORS 137.170 provides, for example, that “[w]hen judgment in a criminal action is given, the clerk shall enter the same in the register.” ORS 138.071(1) provides that a notice of appeal “shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.” Similarly, ORS 137.310 provides that a judgment may be executed after it has been entered in the register. When the legislature has intended to refer to the entry of a judgment of conviction, it has used the term “judgment” to express its intent. It has not referred to entering the conviction.

*529Given that pattern, we find no basis for saying that the word “conviction” means one thing in most of ORS 137.712 but something else when it is used to define “previous conviction.” See PGE, 317 Or at 611. Rather, having considered the text of the statute, its context, and the applicable rules of construction, we conclude that “conviction” is used throughout ORS 137.712 to refer to a finding of guilt. See State v. Bucholz, 317 Or 309, 317-18, 855 P2d 1100 (1993).3

The remaining issue is what the legislature meant when it referred to a “previous” conviction. On that point, we explained in Allison that “previous” has meaning only in relation to another event. 143 Or App at 246. A previous conviction could mean a finding of guilt that occurred before the commission of the crime for which the defendant is being sentenced. Id. at 246-48. Alternatively, a previous conviction could refer to a finding of guilt that occurred before conviction of the current crime. Id. Finally, a previous conviction could mean a finding of guilt that occurred before the sentence is imposed on the current crime. Id.

In Allison, we could not tell from the text and context of the statute which meaning was intended. Relying on the legislative history, we held that the legislature intended to refer to a conviction that had been entered before the current crime had been committed. Allison, 143 Or App at 256. Here, the legislature has defined “previous conviction.” ORS 137.712(6)(b) provides:

“ ‘Previous conviction’ means a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode.”

*530(Emphasis added.) “Previous conviction” accordingly means a finding of guilt that is entered in the register any time before sentence is imposed on the current crime.4 The trial court correctly ruled that defendant was eligible for a guidelines sentence on the first count of second-degree robbery but ineligible on the second and third counts.

Affirmed.

Ballot Measure 11 mandates a 70-month sentence for second-degree robbery. ORS 137.700(2)(a)(R). In 1997, the legislature enacted ORS 137.712, which authorizes a court to impose a guidelines sentence if certain criteria are met. Or Laws 1997, ch 852, § 4. “If the conviction is for robbery in the second degree,” one of those criteria is that “the defendant does not have a previous conviction for [certain specified] crime [s].” ORS 137.712(2)(d).

ORS 3.070 and ORS 7.020 distinguish between “filing” and “entry.” Filing a conviction — a verdict or a guilty plea — with the court clerk does not constitute entering that conviction in the register. See ORS 7.020(1) and (2). We note that defendant has not argued in this case that the court’s finding of guilt on the first count of robbery was not entered in the register before the trial court imposed sentence on the second and third counts of robbery. Rather, his argument has been limited to the claim that the term “previous conviction” refers to judgments of conviction rather than findings of guilt.

The issue in Bucholz and State v. Miller, 317 Or 297, 855 P2d 1093 (1993), was whether a conviction on one crime could be used to enhance a defendant’s criminal history score when the crimes were committed in separate criminal episodes but sentenced together. The court noted that thé commentary to the applicable sentencing guidelines rule stated that the rule had been amended “to provide that the offender’s criminal history is to include all prior convictions * * * entered against the offender ‘at the time the current crime or crimes of conviction is sentenced.’ ” Bucholz, 317 Or at 317-18 (citation omitted). The court explained that that portion of the commentary supported the trial court’s decision to use the first conviction in calculating the defendant’s criminal history score on the later convictions. Id. at 318; Miller, 317 Or at 301-02 (applying that analysis to separate counts charged in the same indictment).

The legislature’s use of the phrase “current crime” and the proviso make clear that the legislature understood that “previous conviction” refers to a finding of guilt on a crime that is separate from the “current crime” on which the defendant is being sentenced. The legislature thus avoided the analytical problem that we noted in Allison. See Allison, 143 Or App at 247.