State v. Bell

276 Or.App. 21

366 P.3d 756

STATE of Oregon, Plaintiff–Respondent,

v.Paula Diane BELL, Defendant–Appellant.

131798

A156129.

Court of Appeals of Oregon.

Argued and Submitted Nov. 19, 2015.

Decided Jan. 21, 2016.

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and LAGESEN, Judge, and GARRETT, Judge.

ORTEGA, P.J.

Defendant pleaded guilty to three counts of first-degree theft, ORS 164.055, two counts of first-degree official misconduct, ORS 162.415, and two counts of tampering with physical evidence, ORS 162.295. On appeal, defendant challenges two special conditions of probation, ORS 137.540(2), imposed by the trial court: (1) a spending restriction prohibiting her from spending more than $250 on nonordinary household items without permission and (2) a geographic restriction precluding her from leaving Lincoln County without permission. Defendant contends that the challenged conditions are not reasonably related to the crimes of conviction or the purposes of probation. Accordingly, defendant asks that we strike the conditions from the judgment. Reviewing the conditions of probation for legal error, State v. Phillips, 206 Or.App. 90, 97, 135 P.3d 461, rev. den., 341 Or. 548, 145 P.3d 1109 (2006), we affirm the spending condition and conclude that the geographic condition is invalid, and remand for further proceedings.

The pertinent facts are undisputed. Defendant worked as an evidence technician with the Oregon State Police (OSP) for several years, which gave her access to evidence facilities in Newport, Tillamook, and McMinnville. At some point, defendant began taking money from OSP evidence lockers to sustain a gambling addiction, a practice that she carried on for well over a year. Defendant sometimes transferred money from one evidence facility to another to cover for the money she had taken. Eventually, she was asked to remove cash from specific evidence lockers for disbursement in several criminal cases. Unable to comply with the request, she instead attempted to cover up her theft by staging a burglary at the evidence facility. During the investigation of the break-in, defendant confessed that she had taken the money and spent it at various casinos throughout the state.

As a result, defendant pleaded guilty to charges of theft, official misconduct, and tampering with physical evidence. The trial court ordered defendant to pay $51,557.69 in restitution¹ and sentenced her to 18 months' imprisonment and five years' probation. The trial court imposed the general conditions of probation under ORS 137.540(1), as well as several special conditions under ORS 137.540(2). In relevant part, the special conditions restricted defendant as follows:

"Do not enter any establishment that has gambling including, but not limited to, casinos, bars/restaurants where video gambling machines or like devices are in place. This prohibition is not intended to extend to retailers who sell lottery tickets ancillary to their primary business.

"Do not participate in any type of gambling activities, including but not limited to the purchase of lottery tickets and bingo.

"Not participate in any on-line gambling or visit any such gambling site.

" * * * * *

"Pay all restitution ordered by the Court.

"Until all restitution is paid in full, Defendant will not leave Lincoln County without the written permission of a probation officer or of the Court.

" * * * * *

"Defendant may not expend any sum greater than $250.00 without permission from her Probation Officer unless it is for ordinary household expenses. ‘Ordinary household expenditures' will be determined by the sound discretion of her Probation Officer. "

(Emphases added.)

At the sentencing hearing, defendant objected to the special conditions highlighted above. Regarding the spending restriction, defendant argued that it was "unduly restrictive," and she expressed doubts about whether people "can actually live in a household with those kind[s] of restrictions." Defendant also questioned the restriction's enforceability, noting that it would be difficult to distinguish household expenses and other expenses. The court explained that the spending restriction served an accountability purpose, stating:

"The intent of this is that there [is] not, if you will, cash income that she's receiving that is not accounted for going towards restitution. What would be appalling, if you will, is if she fell back into this and is gambling again and using what resources she has in that manner instead of paying restitution.

"And I don't—it's six months into her probation I don't want that to be found out. Again, this is going to require some accounting on the part of her and her probation officer. I'm not prohibiting any expense, she's just going to have to disclose it to her probation officer and the—

" * * * * *

"—purpose is, so we don't have large sums of money going out and nobody knowing about it.

" * * * * *

" * * * I find it reasonably related to the crimes in that which is represented to the Court as the motivation for her commission of these crimes."

Defendant then questioned the need for a separate spending restriction given that the court also imposed—and defendant did not contest—special conditions that required her to pay restitution and prohibited her from gambling or frequenting gambling establishments. Defendant alleged that, because she was required to make monthly restitution payments, the court also had a "recourse should she fail to pay the restitution or should she get back into gambling." On that point, the court responded,

"Again, it's because of her conduct here. And, quite frankly, her * * * successful efforts to conceal her activities over a long period of time, [and the] position of trust that she was in.

"I don't want her ever to be in such a position of trust where she's able to violate it in the same manner that she did that brings her before the Court here."

As to the geographic restriction, defendant argued that it was impractical and "improper to restrict her freedom of travel within the state." The court explained that it was imposing the restriction so that defendant would be required to justify her travel and be held accountable for it. The court noted that there are costs associated with travel and wondered, "Why [is she] making trips to Pendleton and why [is she] making trips to Portland and other parts of the State if she can't afford to pay restitution [?]" Ultimately, the court clarified, "It's not that she can't do it. She just, first, has to request permission of her probation officer and justify, if you will, the reasons for thus requiring her to travel."

On appeal, defendant reiterates her objection to both conditions and requests that we strike them from the judgment because they "are not reasonably related to the crime of conviction, do not further the goals of probation, and unreasonably conflict with defendant's fundamental liberty[.]" Defendant contends that the court's authority to impose restrictive conditions is limited and argues that the court cannot impose conditions that are more restrictive than necessary, especially when a person's fundamental rights are at issue. Here, defendant claims that her fundamental right to travel and her right to free speech and association require that we scrutinize the trial court's decision to impose such restrictive conditions.

Before addressing the validity of each condition, we begin with an overview of the legal standards that govern our analysis in this case. Under ORS 137.540(2),

"[i]n addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both * * *."

(Emphasis added.) A court has wide discretion to impose probation conditions, but "a probation condition that is more restrictive than necessary to achieve the goals of probation is invalid." State v. Donahue, 243 Or.App. 520, 526, 259 P.3d 981 (2011) (citing State v. Hitesman/Page, 113 Or.App. 356, 362, 833 P.2d 306, rev. den., 314 Or. 574, 840 P.2d 1296 (1992) ). Furthermore, whenever a defendant's fundamental rights are implicated, the court has less discretion to impose conditions that infringe upon those rights. Donahue, 243 Or.App. at 526, 259 P.3d 981. On appellate review, a court can assess whether a defendant's probation conditions comply with the standards outlined above "only if the sentencing court makes a record." State v. Martin, 282 Or. 583, 589, 580 P.2d 536 (1978) ; see also State v. Gaskill, 250 Or.App. 100, 103, 279 P.3d 275 (2012) ("A trial court must establish a factual record to support its imposition of special conditions"). "Such a record need not be exhaustive, and often the facts brought out in the criminal trial will themselves be an adequate record to show that the conditions of probation are appropriate." Martin, 282 Or. at 589, 580 P.2d 536. We consider each probation condition in turn.

With regard to the spending restriction, defendant argues that the condition is overly restrictive and infringes on her fundamental right to expression and free speech because those rights are "often expressed through personal property and purchases."² She also contends that the restriction is not reasonably related to her crimes, because those crimes were motivated by gambling, not spending. Furthermore, defendant contends that the spending restriction is not reasonably related to the goals of probation because it does not ensure that she pays restitution any more than the restitution order already does.

Conversely, the state argues that the spending condition is...