State v. Richards

840 September 14, 2017 No. 48

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
MATTHEW EUGENE RICHARDS,
Petitioner on Review.
(CC 120833582; CA A155895; SC S063979)

On review from the Court of Appeals.*
Argued and submitted November 14, 2016.
Kyle Krohn, Deputy Public Defender, Salem, argued the
cause and filed the briefs for petitioner on review. Also on
the brief was Ernest G. Lannet, Chief Defender.
Shannon T. Reel, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, Nakamoto, and Flynn, Justices.**
LANDAU, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is affirmed.

______________
*  Appeal from Multnomah County Circuit Court, Angel Lopez, Judge. 277
Or App 128, 370 P3d 874 (2016)
**  Baldwin, J. retired on March 31, 2017, and did not participate in the deci-
sion of this case. Duncan, J., did not participate in the consideration or decision of
this case.
Cite as 361 Or 840 (2017) 841

Case Summary: In a probation violation proceeding, the trial court revoked
probation based on defendant’s violation of the conditions of probation despite the
fact that defendant had already served a sanction for violating the same condition
of post-prison supervision. The Court of Appeals affirmed the trial court’s deci-
sion and defendant petitioned for review. Held: (1) when an individual is serving
both probation and post-prison supervision and violates the conditions of both,
the trial court may revoke probation if that individual has not yet completed a
probation violation sanction; and (2) because defendant had served a post-prison
supervision sanction rather than a probation violation sanction, the trial court
had authority to revoke his probation.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed.
842 State v. Richards

LANDAU, J.
When an individual has been convicted of a felony,
the sentencing court may impose a term of imprisonment,
followed by release on post-prison supervision that is sub-
ject to certain conditions. Or, the trial court may instead
sentence the individual to a term of probation, also sub-
ject to conditions. An individual who has been convicted of
more than one criminal offense may serve probation for one
offense and post-prison supervision for another at the same
time. And when that individual violates a condition of one
form of release, the same conduct may violate a condition
of the other form of release as well. That is to say, when
an individual has been released on both probation and post-
prison supervision subject to the same or similar conditions,
a single act may violate the conditions of both probation and
post-prison supervision.
This is such a case. Defendant was sentenced on
two different criminal offenses and was subject to both
probation and post-prison supervision at the same time. A
condition of both was that he not change addresses with-
out permission. He did not comply with that condition. As a
result, the official who supervised his post-prison supervi-
sion on one offense imposed a sanction of three days in jail.
The trial court imposed an additional sanction of revoking
his probation on the other offense and sentenced him to a
term of imprisonment on that offense. The issue in this case
is whether the trial court had authority to do so. The Court
of Appeals concluded that the trial court does have such
authority. State v. Richards, 277 Or App 128, 130, 370 P3d
874 (2016). For the reasons that follow, we agree and affirm.
I.  FACTUAL BACKGROUND
The relevant facts are not in dispute. Defendant
pleaded guilty to one count of first-degree burglary and one
count of first-degree theft. On the burglary conviction, the
trial court imposed a sentence of 36 months’ supervised pro-
bation. On the theft conviction, the trial court also imposed
a sentence of 36 months’ probation. The sentences ran con-
currently. Both were subject to general conditions of proba-
tion, including that defendant report to his supervising offi-
cer as directed and that he not change residences without
Cite as 361 Or 840 (2017) 843

permission. The judgment specified that the trial court itself
would supervise defendant’s probation.
Four months later, defendant changed his resi-
dence without permission. The court revoked defendant’s
sentence of probation on the theft conviction and imposed
a jail sentence, followed by 12 months of post-prison super-
vision. Conditions of the post-prison supervision included
that defendant not change addresses without permission
from his supervising officer and that he report on request.
The trial court did not revoke the sentence of probation on
the burglary conviction. After completing the jail sentence,
defendant was on both probation (for the burglary convic-
tion) and post-prison supervision (for the theft conviction).
A Deschutes County Probation and Parole Officer was
assigned to supervise defendant for both probation and post-
prison supervision.
Shortly after being released, defendant again vio-
lated his conditions of release in changing his address with-
out permission. The county officer obtained a warrant for
defendant’s arrest. Defendant failed to respond. Several
months later, defendant voluntarily surrendered to the
county officer and consented to the imposition of a three-day
jail sanction for his violation of the conditions of post-prison
supervision.
When the trial court learned of the violation, it held
a probation violation hearing to decide whether the court
should revoke defendant’s sentence of probation on the bur-
glary conviction. At the hearing, defendant conceded that he
had violated a condition of his probation, but he argued that
the trial court could not revoke probation because, by that
time, he had already served the three-day term of incarcer-
ation that his supervising officer had imposed for the viola-
tion of the terms of his post-prison supervision. Specifically,
defendant argued that ORS 137.593(3) deprived the court of
authority to revoke his probation. That statute provides:
“In no case may the sentencing judge cause a proba-
tioner to be brought before the court for a hearing and
revoke probation or impose other or additional sanctions
after the probationer has completed a structured, interme-
diate sanction imposed by the Department of Corrections
844 State v. Richards

agency or a county community corrections agency pursuant
to rules adopted under ORS 137.595.”
According to defendant, the Department of Corrections had
adopted administrative rules setting out structured, inter-
mediate sanctions—that is, administrative sanctions short
of revocation—for violations of conditions of both probation
and post-prison supervision. Thus, defendant argued, when
an individual completes a structured, intermediate sanction
for either probation or post-prison supervision violations,
that individual has completed a structured, intermediate
sanction within the meaning of ORS 137.593(3). In this
case, defendant argued, he had done just that: The county
officer was designated as the “county community correc-
tions agency” within the meaning of the statute. That offi-
cer imposed the structured, intermediate sanction of three
days in jail as a sanction for violating the conditions of his
post-prison supervision. And he did so in accordance with
administrative rules adopted pursuant to ORS 137.595.
Consequently, defendant concluded, ORS 137.593(3) pre-
cluded the trial court from imposing any additional sanction
for the same violation.
The state responded that, by its terms, ORS
137.593(3) prohibits a trial court from imposing additional
sanctions for a probation violation when a “probationer” has
already been sanctioned under the rules for violation of his
conditions of “probation.” Nothing in the statute, the state
argued, says anything about limiting the authority of the
court to impose sanctions for probation violations when a
defendant has already been sanctioned for violations of post-
prison supervision.
The trial court agreed with the state and revoked
defendant’s probation on the burglary conviction. It imposed
a 17-month term of imprisonment, followed by 36 months of
post-prison supervision.
Defendant appealed, reprising his argument that
ORS 137.593(3) prohibited the trial court from imposing a
sanction for the probation violation because he had already
completed the sanction for his post-prison supervision vio-
lation. The Court of Appeals rejected defendant’s reliance
on that statute as a limitation on the trial court’s authority
Cite as 361 Or 840 (2017) 845

to impose sanctions for a probation violation on an individ-
ual who already has completed a sanction for a post-prison
supervision violation. The court explained that the text of
ORS 137.593(3) makes it clear that the statute applies only
to “probationers” who have already completed an admin-
istrative sanction for a probation violation, not for a post-
prison supervision violation. 277 Or App at 130-31.
II. ANALYSIS
On review, defendant argues that the Court of
Appeals erred in concluding that ORS 137.593(3) does not
constrain the trial court in this case. He contends that
the statute clearly evinces an intention to delegate to the
Department of Corrections the authority to adopt adminis-
trative rules concerning probation violation sanctions and,
in so doing, intends those rules “to circumscribe a trial
court’s traditional authority over probationers.” Defendant
notes that the Department of Corrections did adopt such
rules and that those rules treat probation and post-prison
supervision as “coextensive.” It necessarily follows, he rea-
sons, that an offender who has completed sanctions for
either a probation or post-prison supervision violation has
completed sanctions “pursuant to rules,” as provided in ORS
137.593(3). Defendant thus concludes that the statute pre-
cluded the trial court from revoking probation or imposing
additional sanctions.
In response, the state asserts that the plain word-
ing of ORS 137.593(3) makes clear that it applies only to
probationers who already have completed sanctions for pro-
bation violations, not to those who have completed sanctions
for violations of other forms of supervised release.
We begin with an overview of the statutory and
regulatory framework that applies to the imposition of
sanctions for probation and post-prison supervision vio-
lations. As we noted at the outset of this opinion, a sen-
tencing court may impose a sentence of incarceration,
to be followed by release on post-prison supervision. In
some circumstances, the Board of Parole and Post-Prison
Supervision has exclusive authority over the imposition of
sanctions for such violations: for example, if the term of
imprisonment is for more than 12 months, or the offense is
846 State v. Richards

a felony with a specified crime category under the sentenc-
ing guidelines, or the offense is a Measure 11 offense. ORS
144.101(1). In those circumstances in which the board does
not have exclusive authority—for example, if the term of
imprisonment is for 12 months or less—the local supervi-
sory authority has jurisdiction over imposition of sanctions
for violations of the terms of post-prison supervision. ORS
144.101(2).
The legislature authorized the board to adopt admin-
istrative rules to carry out its responsibilities. ORS 144.140.
And the board has adopted extensive administrative rules,
including those concerning the imposition of sanctions for
violation of post-prison supervision conditions. See gener-
ally OAR 255-075-0067. Among other things, those rules
provide that administrative sanctions are to be imposed in
accordance with Department of Corrections rules for struc-
tured, intermediate sanctions. OAR 255-075-0067(5).
Additionally, a court may impose a sentence of
probation, ORS 137.010, also subject to conditions, ORS
137.540(1). The court itself may elect to supervise a defen-
dant’s probation, or it may order that the Department of
Corrections or a county community corrections agency
supervise the probation. ORS 137.540; ORS 137.593(1).
The legislature charged the Department of
Corrections with adopting rules to specify particular sanc-
tions for violating probation conditions. ORS 137.595(1).
Those rules are required to establish:
“(a)  A system of structured, intermediate probation
violation sanctions that may be imposed * * * on a proba-
tioner who waives in writing a probation violation hearing,
admits or affirmatively chooses not to contest the violations
alleged in a probation violation report and consents to the
sanctions;
“(b)  Procedures to provide a probationer with written
notice of the probationer’s right to a hearing before the court
to determine whether the probationer violated the condi-
tions of probation alleged in a probation violation report,
and if so, whether to continue the probationer on probation
subject to the same or modified conditions, or order sanc-
tions for any violations * * *;
Cite as 361 Or 840 (2017) 847

“(c)  Procedures for a probationer to waive in writing a
probation violation hearing, admit or not contest the viola-
tions alleged in the probation violation report and consent
to the imposition of structured, intermediate sanctions by
the Department of Corrections or a county community cor-
rections agency;
“(d)  The level and type of sanctions that may be
imposed by parole and probation officers and by supervi-
sory personnel;
“(e)  The level and type of violation behavior war-
ranting a recommendation to the court that probation be
revoked;
“(f)  Procedures for notifying district attorneys and the
courts of probation violations by probationers * * *.”
ORS 137.595(2).
Those rules then govern the sanctions imposed
by the department or by a county community corrections
agency for probation violations, if the sentencing court has
assigned those agencies the responsibility of supervising
probation. ORS 137.593(1). The court retains authority to
revoke probation. ORS 137.593(2)(a). But the court’s author-
ity is limited. That is where ORS 137.593(3) comes into
play. It provides that, if the Department of Corrections or a
county community corrections agency imposed an adminis-
trative sanction in accordance with the department’s rules,
and the probationer has completed that sanction, the trial
court is precluded from revoking probation or imposing any
additional sanction.
The Department of Corrections adopted administra-
tive rules that establish a system of structured, intermediate
sanctions for probation violations. See generally OAR 291-
058-0010 to 291-058-0070. Because, as we have noted above,
rules of the Board of Parole and Post-Prison Supervision pro-
vide that the imposition of sanctions for post-prison supervi-
sion violations must be in accordance with the sanctions for
probation violations, the rules refer to post-prison supervi-
sion at several points. In particular, the department’s rules
include the Administrative Sanctions Sanctioning Grid that
spells out sanctions that apply to either probation violations
or to post-prison supervision violations. OAR 291-058-0045,
848 State v. Richards

Attachment A. In other respects, the rules distinguish between
probation and post-prison supervision. For example, the rules
set out different notice requirements that apply to probation
and post-prison supervision cases. OAR 291-058-0040(2).
The department’s administrative rules also stream-
line the process by which sanctions are imposed. They pro-
vide that, once administrative sanctions are imposed, notice
should be provided to the district attorney and the sentenc-
ing court. OAR 291-058-0050(1). Within four days of the
imposition of such administrative sanctions, the court may
hold a probation violation hearing to determine whether to
revoke probation or to impose additional sanctions for the
probation violation. OAR 291-058-0050(3). But, in accor-
dance with ORS 137.593(3), the rules go on to state that
if the probationer already has completed the administra-
tive sanctions by the time of that hearing, the court may
not revoke probation or impose additional sanctions for that
probation violation. Id.
With that background in mind, we turn to the par-
ties’ arguments. As we have noted, defendant argues that
ORS 137.593(3) limits the trial court’s authority to revoke
probation when a defendant already has completed any type
of administrative sanction—whether for a probation viola-
tion or for a post-prison supervision violation.
Defendant’s argument cannot be squared with the
wording of the statute on which he relies. By its terms,
ORS 137.593(3) provides that a trial court cannot “revoke
probation” when a “probationer” has completed structured,
intermediate sanctions imposed pursuant to Department
of Corrections rules adopted “under ORS 137.595.” ORS
137.595, in turn, authorizes the department to adopt rules
to establish a system of “probation violation sanctions” that
may be imposed on a “probationer” who has “violated con-
ditions of probation.” Thus, the statute on which defendant
relies limits a sentencing court’s authority only when a pro-
bationer has completed sanctions for violating probation.
There is simply nothing in the wording of ORS 137.593(3)
that suggests that a sentencing court may not revoke proba-
tion when an individual has completed sanctions for some-
thing other than a probation violation.
Cite as 361 Or 840 (2017) 849

Defendant insists that ORS 137.593(3) must not
be read in isolation and must instead be read in conjunc-
tion with the Department of Corrections administrative
rules, to which he asserts we must afford deference under
Springfield Educ. Assn. v. Sch. Dist., 290 Or 217, 228, 621
P2d 547 (1980). As we understand it, defendant argues that
Springfield requires courts to defer to an agency’s inter-
pretation of statutes that the legislature “deliberately l[eft]
incomplete.” That is so in this case, he says, because the leg-
islature expressly delegated authority to the Department
of Corrections to adopt administrative rules establishing
a system of administrative sanctions. The department did
just that, he observes, and the rules that it adopted apply
not just to probation violations but also to post-prison super-
vision violations. From that, defendant concludes that it is
apparent that the department intended that an individu-
al’s completion of any structured, intermediate sanctions
would have the effect of precluding a trial court from revok-
ing probation or imposing additional sanctions. And, under
Springfield, he says that we should defer to the department
in that regard.
There are a number of flaws in the foregoing
argument. To begin with, it misapplies Springfield. Under
Springfield, the courts may be required to defer to an admin-
istrative agency’s construction of a statute, depending on the
category of statutory word or phrase at issue. 290 Or at 223.
If a word or phrase is “delegative” in nature—that is, if it
“express[es] incomplete legislative meaning that the agency
is authorized to complete”—courts will defer to an agency’s
interpretation of it as long as it is “within the range of dis-
cretion allowed by the more general policy of the statute.”
Coast Sec. Mortg. Corp. v. Real Estate Agency, 331 Or 348,
354, 15 P3d 29 (2000). In this case, defendant identifies no
word or phrase that is delegative in nature.
At oral argument, defendant retreated somewhat
from his reliance on Springfield, explaining that he meant
that the department’s regulations—which apply to sanctions
for both probation violations and post-prison supervision
violations—provide essential context for a proper under-
standing of the scope of authority that the legislature del-
egated under the ostensibly narrower ORS 137.595, which
850 State v. Richards

refers only to rules concerning probation violations. The
problem with that fall-back argument is, however, that it
characterizes the law precisely backwards. Administrative
rules that did not exist at the time of the enactment of a
statute do not inform the scope of authority granted by the
statute. Rather, the statutes inform the validity of the rules
themselves. If the rules exceed the authority granted by the
statute, they are invalid. Planned Parenthood Assn. v. Dept.
of Human Res., 297 Or 562, 564, 687 P2d 785 (1984).
Aside from that, defendant’s argument relies on a
misreading of the rules themselves. The rules do not treat
probation violations and post-prison supervision violations
as “coextensive.” They simply provide that a set of sanctions
applies to both. As we have noted, ORS 137.595 authorizes
the department to adopt rules to establish a system of “pro-
bation violation sanctions,” that may be imposed on a “pro-
bationer” who has “violated conditions of probation.” At the
same time, the Board of Parole and Post-Prison Supervision
adopted rules concerning post-prison supervision viola-
tions providing that the sanctions for such violations will
be in accordance with the sanctions that are reflected in the
department’s rules regarding sanctions for probation viola-
tions. Accordingly, the department’s rules incorporate the
Administrative Sanctions Sanctioning Grid, which applies
to both probation violations and to post-prison supervision
violations. That a single set of sanctions spelled out in the
department’s administrative rules applies both to probation
violations and to post-prison supervision violations does not
mean that the two types of violations are, in effect, the same
things, any more than the fact that the Oregon Vehicle Code
may apply equally to cars and trucks means that cars and
trucks are the same things. And, in fact, the department’s
rules otherwise make clear the distinctions between proba-
tion violations and post-prison supervision violations.
Defendant argues that the legislative history of ORS
137.593 and ORS 137.595 demonstrates that the Oregon leg-
islature intended those statutes to confer on the Department
of Corrections broad power “to limit judicial authority” and
“adopt a unified policy for all administrative sanctions,” not
just sanctions for probation violations. That argument, too,
fails.
Cite as 361 Or 840 (2017) 851

To begin with, whatever may be said of the legis-
lative history in that regard, the fact remains that ORS
137.595 authorizes the department to adopt administrative
rules to establish a system of “probation violation sanctions,”
that may be imposed on a “probationer” who has “violated
conditions of probation.” The statute says nothing about
establishing “unified policy for all administrative sanc-
tions,” as defendant suggests. As this court has explained
on many occasions, “legislative history cannot substitute for,
or contradict the text of, [a] statute.” White v. Jubitz Corp.,
347 Or 212, 223P3d 566 (2009); see also State v. Gaines, 346
Or 160, 173, 206 P3d 1042 (2009) (“When the text of a stat-
ute is truly capable of having only one meaning, no weight
can be given to legislative history that suggests—or even
confirms—that legislators intended something different.”).
What is more, defendant has not identified any
legislative history that supports the broad proposition that
he asserts. In fact, defendant concedes that “[i]t does not
appear that the legislature anticipated the scenario pre-
sented in this case.” He argues nevertheless that the legis-
lative history shows the legislature was “well aware” that
administrative sanctions already existed for forms of super-
vision other than just probation and that it was interested
in streamlining the processes that apply to the imposition of
sanctions for all types of violations of supervision conditions.
The legislative history does indeed show that the
legislature was aware of different types of supervision,
and it further suggests that the legislature was interested
in consolidating administrative proceedings for violations
of supervision conditions. The text of what are now ORS
137.593 and ORS 137.595 was introduced in the 1993 legis-
lative session at the request of the Criminal Justice Council
as Senate Bill 138. Testifying about the proposed law on
behalf of the council, Multnomah County Circuit Court
Judge James Ellis offered an example of one problem the
bill was designed to address:
“One more thing we tried to respond to, just as an example
of things this bill will improve, we now have people who
may be on parole for a pre-guidelines case, post-prison
supervision for a guidelines case they’ve been to prison on,
and probation in multiple counties.
852 State v. Richards

“The last day we met to work on this, I had had a hearing
the day before for someone who is in all those categories,
and on probation in three different cases in Multnomah
County alone. I did the probation hearing for my own case
and one other judge * * * . Then the person had to be taken
to [Clackamas] County to have a hearing there, * * * and
finally they had already had a parole violation hearing.
“We contemplate that we could have one hearing to take
care of all of that. The bill provides that, even between
counties, you’ll just have one violation proceeding.”
Tape Recording, Senate Judiciary Committee, SB 138, Feb
3, 1993, Tape 15, Side B (statement of Judge Ellis). Judge
Ellis also noted that there then existed three different lists
of conditions applied to individuals on probation, parole, or
post-prison supervision, and explained that “[t]his bill tries
to get that straightened out. So we’ll have one list of stan-
dard conditions that’ll apply to * * * all three categories that
one person may be in.” Id.
But nothing in that legislative history contradicts
our reading of the relevant statutes or the Department of
Corrections administrative rules. It certainly does not sug-
gest that the legislature intended that any such rules could
limit the authority of the sentencing court to impose sanc-
tions for probation violations beyond what is stated in the
text of what is now ORS 137.593(3). To the contrary, our
reading of that statute and the department’s rules is entirely
consistent with the concerns that Judge Ellis expressed. As
we have observed, those rules provide for sanctions that
apply not just to probation violations, but to other types of
violations as well. In addition, the rules call for notification
of the district attorney and the trial court as to the impo-
sition of administrative sanctions and authorize a hearing
on whether to revoke probation or impose additional sanc-
tions, thus streamlining the process by which sanctions are
imposed.
We conclude that ORS 137.593(3) prohibits a sen-
tencing court from revoking probation or imposing additional
sanctions for a probation violation only when the probationer
already has completed structured, intermediate sanctions
for that probation violation. It does not preclude the court
Cite as 361 Or 840 (2017) 853

from revoking probation when an individual already has
completed structured, intermediate sanctions for some other
violation.
In this case, defendant already had completed a
three-day jail term that had been imposed for his violation of
conditions of post-prison supervision. He had not completed
any structured, intermediate sanctions for his violation of
probation. Accordingly, ORS 137.593(3) did not preclude the
court from revoking his probation.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed.