Single Oregon Probation Violation Requires Concurrent Sanctions

by Mark Wilson

The Oregon Court of Appeals held that multiple sanctions for a single probation violation must be concurrent.

“If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.” OAR 213- 012-0040(2)(a). The court has discretion to impose consecutive sanctions if supervision is revoked for multiple violations. OAR 213-012-0040(2)(b).

Matthew Todd Lewis was convicted of three felony drug offenses and sentenced to a five year term of probation. Lewis later admitted to a single probation violation by using marijuana.

The trial court revoked his probation and imposed a 24-month sanction on one conviction, consecutive to a 23-month sanction on a second conviction, for a total of 47 months in prison. On the third conviction, the court imposed a concurrent 25-month sanction.

The Court of Appeals reversed. Following its holding in State v. Stokes, 133 Or App 355, 891 P.2d 13 (1995), the Court held that “if the judge revokes more than one term of probationary supervision for a single violation, the judge must impose the incarceration sanctions concurrently.”

The Court rejected the State’s argument that Lewis stipulated to consecutive revocation sanctions, because his plea agreement notes that the State would seek “imposition of consecutive prison sentences” if he violated probation. “The state puts more weight on the language of the plea agreement than it can bear,” the court held. “The fact that the state will seek a result does not mean that defendant agreed to that result; indeed, it suggests that he did not, because it describes what the state will attempt to obtain, not what it will necessarily obtain.” See: State v. Lewis, 257 Or App. 641 (2013).

In a companion case, Austin Callahan Brand was convicted of providing drugs to two teenage girls and sexually abusing one of them. He was sentenced to probation for 60 months, but later violated his probation by consuming alcohol. The trial court imposed a 27-month sanction on one conviction, consecutive to a 29-month sanction on the other, for a 56-month prison term.

Brand objected and the State made no argument. The trial court overruled the objection, stating “They’re two different minors; two different girls.”

The Court of Appeals rejected the State’s argument that “to the extent that OAR 213-012- 0040''2)(a) prohibits the imposition of consecutive sanctions for crimes committed against different victims, it violates Article I, section 44(1 )(b), of the Oregon Constitution, which provides: ‘No law shall limit a court’s authority to sentence a criminal defendant consecutively for crimes against different victims.’”

The Court found that the State offered no reason why the “revocation sanctions” or ‘incarceration sanctions” referenced in OAR 213-0012-0040 should be treated as a “sentence.” Noting that the State raised the issue for the first time on appeal, the court cited its previous decisions refusing to reach arguments that were not made below and which were asserted in only ‘cursory” fashion on appeal.

‘Pursuant to [its] decisions in Lewis and Stokes,” the Court held that since Brand ‘committed a single probation violation,” concurrent incarceration sanctions were required. See: State v. Brand, 257 Or. App. 647, 307 P.3d 525 (Or. Ct. App. 2013).

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