State v. Kragt

368 Or. 577

495 P.3d 1233

STATE of Oregon, Respondent on Review,

v.Randall Jay KRAGT, Petitioner on Review.

CC CR99474(SC S067872)

Supreme Court of Oregon, En Banc.

Argued and submitted March 5, 2021.

September 30, 2021

Jon Zunkel-deCoursey, 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.

Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.

GARRETT, J.

Oregon's criminal sentencing guidelines establish rules regarding the length of post-prison supervision (PPS). However, ORS 144.103(1) sets forth special PPS rules for certain sex offenses. The question in this case is whether, when sentencing a person convicted of multiple qualifying sex offenses, ORS 144.103(1) requires a trial court to impose a separate term of PPS for each count or whether that statute, instead, requires the trial court to impose a single term of PPS that covers all counts. The Court of Appeals, relying on its own precedent, held that the statute requires a separate term for each count. State v. Kragt , 304 Or. App. 537, 538, 467 P.3d 830 (2020) ( Kragt II ). For the reasons that follow, we agree and affirm the decision of the Court of Appeals. As did the Court of Appeals, we vacate the judgment of the circuit court based on a different sentencing issue than the one presented on review, and we remand to the circuit court for further proceedings consistent with the Court of Appeals decision in Kragt II .¹

I. BACKGROUND

After defendant pleaded guilty to three counts of first-degree sodomy (Counts 1, 3, and 5), the trial court sentenced him as follows: for Count 1, 60 months in prison; for Count 3, 100 months in prison, concurrent with Count 1; and, for Count 5, 100 months in prison, consecutive to Count 3. For all three counts, the court initially imposed a single PPS term of 240 months, minus the time defendant served in prison. As a result, defendant was effectively sentenced to 200 months in prison and, assuming he served the full term, 40 additional months of PPS.

After defendant was released from prison, the trial court amended the part of the judgment of conviction that had imposed a single PPS term.² Defendant appealed, arguing that the trial court had erred by amending the judgment without notice and a hearing. The Court of Appeals agreed with that argument and reversed. State v. Kragt , 290 Or. App. 169, 170, 412 P.3d 275 (2018) ( Kragt I ).

On remand, defendant argued that ORS 144.103(1) required the trial court to impose a single PPS term for all three counts, as the court had done initially, before amending the judgment. The trial court disagreed and entered a judgment that imposed three PPS terms: 180 months for Count 1, 140 months for Count 3, and 140 months for Count 5.³

Defendant appealed again, arguing that ORS 144.103(1) requires a single term of PPS regardless of the number of counts. In a per curiam opinion, the Court of Appeals rejected that argument, relying on its decisions in Norris v. Board of Parole , 237 Or. App. 1, 238 P.3d 994 (2010), rev. den. , 350 Or. 130, 250 P.3d 922 (2011), and Delavega v. Board of Parole , 222 Or. App. 161, 194 P.3d 159 (2008). Kragt II , 304 Or. App. at 538, 467 P.3d 830. Defendant petitioned for review, which we allowed.

II. APPLICABLE LAW

Before November 1, 1989, convicted defendants were sentenced under the "parole matrix system." State ex rel Engweiler v. Cook , 340 Or. 373, 380-81, 133 P.3d 904 (2006). However, in 1987, "the Oregon legislature authorized the Oregon Criminal Justice Council to develop a set of mandatory felony sentencing guidelines that would establish presumptive sentences for all felonies." State v. Davis , 315 Or. 484, 486, 847 P.2d 834 (1993) (footnote omitted). "At the same time, the legislature created the State Sentencing Guidelines Board (the Board) to serve as the administrative body that would adopt the guidelines in the form of administrative rules." Id. (footnote omitted). "In May 1989, the Board completed that task and, in July, the legislature expressly approved the guidelines." Id. at 486-87, 847 P.2d 834. The guidelines became effective November 1, 1989. Id. at 487, 847 P.2d 834.

The sentencing guidelines are administrative rules that set forth presumptive sentences for most felony convictions based on the offender's criminal history and the seriousness of the offense. Id. at 486-87, 847 P.2d 834. The guidelines accomplish that "by creating a grid for establishing the sentence in light of the offender's criminal history and the seriousness of the offense. The vertical axis of the grid is the Crime Seriousness Scale, which classifies the crime of conviction according to its seriousness in relation to other crimes. OAR 213-004-0001(1)." Engweiler , 340 Or. at 382, 133 P.3d 904. The Crime Seriousness Scale sets forth 11 numerical crime categories, with crime category 1 representing the least serious crimes and crime category 11 representing the most serious crimes. OAR 213-004-0002(1) ; OAR ch. 213, app. 1.⁴ "The horizontal axis of the grid is the Criminal History Scale, which classifies the offender's personal criminal history." Engweiler , 340 Or. at 382, 133 P.3d 904. "Each block on the grid provides the presumptive sentencing range for offenders whose crime and criminal history places them in that block." Id.

Despite being administrative rules, the sentencing guidelines are approved by the legislature and have "the authority of statutory law." State v. Langdon , 330 Or. 72, 74, 999 P.2d 1127 (2000) ; see also State v. Carlton , 361 Or. 29, 42, 388 P.3d 1093 (2017) (noting that the legislature acts "both directly and by approving the Sentencing Guidelines"). And, importantly, "unless otherwise specifically provided by law," a court has a "duty" to impose a sentence in accordance with the sentencing guidelines. ORS 137.010(1). Thus, the legislature and the electorate can supersede the sentencing guidelines by enacting other provisions.

For most felony convictions, the sentencing guidelines provide that the duration of PPS is one year, two years, or three years, as determined by the crime seriousness category of "the most serious current crime of conviction." OAR 213-005-0002(2)(a). However, ORS 144.103, enacted in 1991, provides special PPS rules for certain sex offenses. Subsection (1) of that statute provides:

"Except as otherwise provided in ORS 137.765 and subsection (2) of this section, any person sentenced to a term of imprisonment for violating or attempting to violate [ ORS 163.365 (second-degree rape), 163.375 (first-degree rape), 163.395 (second-degree sodomy), 163.405 (first-degree sodomy), 163.408 (second-degree unlawful sexual penetration), 163.411 (first-degree unlawful sexual penetration), 163.425 (second-degree sexual abuse) or 163.427 (first-degree sexual abuse)] shall serve a term of active post-prison supervision that continues until the term of the post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation."⁵

Thus, the duration of PPS for a qualifying offense under ORS 144.103(1) is different than for most crimes under OAR 213-005-0002. Generally, the maximum term of PPS under the latter is three years.⁶ But under ORS 144.103(1), an offender could have a PPS term that is longer. For example, second-degree sodomy has a crime seriousness ranking of 8. OAR 213-017-0004(8). Second-degree sodomy is a Class B felony, ORS 163.395(2), and, as such, has a maximum indeterminate sentence of 120 months in prison, ORS 161.605(2). For a defendant convicted of one count of second-degree sodomy, a Measure 11 crime, the minimum sentence is 75 months. ORS 137.700(2)(N).⁷ In the absence of ORS 144.103(1), assuming that a trial court had sentenced the defendant to 75 months, then, under OAR 213-005-0002, the defendant's PPS term would be a determinate term of 36 months. See OAR 213-005-0002(2)(a) (explaining that, when the "most serious current crime of conviction" is a crime seriousness category 8, the PPS term is three years). However, ORS 144.103(1) would require the trial court to impose a longer PPS term—an indeterminate PPS term equal to the "maximum statutory indeterminate sentence," i.e. , 120 months, minus "the term of imprisonment served." Thus, assuming that the defendant served an incarceration term of 75 months, the PPS term would be 45 months under ORS 144.103(1).

As the foregoing example illustrates, ORS 144.103(1) can increase the length of PPS that a defendant must serve. As discussed in more detail below, the legislature enacted that statute for the purpose of reducing recidivism among sex offenders.

III. DISCUSSION

The issue before this court is whether the trial court erred in imposing separate terms of PPS for each of defendant's counts of conviction for first-degree sodomy, with defendant arguing that ORS 144.103(1) requires a single term of PPS regardless of the number of counts. The interpretative question is potentially a significant one for defendant. Under defendant's interpretation of ORS 144.103(1), he would be required to serve a single PPS term of only 40 months. Defendant reaches that conclusion by subtracting the total time that he served for all three offenses (200 months) from the maximum indeterminate sentence for first-degree sodomy (240 months).⁸ In contrast, under the state's interpretation, defendant would serve three separate PPS terms concurrently, which would result in serving a total of 180 months of PPS. The state counters that the trial court's sentence was correct: For Count 1, defendant's PPS term is 180 months (the maximum indeterminate sentence of 240 months minus the 60 months of imprisonment on that count); and, for each of Counts 3...