28 July 12, 2023 No. 360

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KALLAN MITCHEL HAMPTON,

Defendant-Appellant.

Lane County Circuit Court

21CR16507, 21CR20232, 21CR33295;

A176937 (Control), A176938, A176939

Karrie K. McIntyre, Judge.

Submitted May 25, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Shawn Wiley, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Timothy A. Sylwester, Assistant 

Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Vacated and remanded for resentencing; otherwise 

affirmed.
Cite as 327 Or App 28 (2023) 29

AOYAGI, P. J.

In this consolidated appeal of three judgments, 

defendant raises a single assignment of error, challenging 

the sentencing court’s ruling that it lacked authority under 

ORS 137.717(6) to consider a downward departure from the 

presumptive repeat property offender (REPO) sentences.1

This case requires us to construe “a crime listed in subsection (1) of this section” in ORS 137.717(6)(a). As explained 

below, we agree with defendant that the court misconstrued 

ORS 137.717(6)(a), so we vacate and remand the judgments 

for resentencing.

Defendant pleaded guilty and was convicted of 

criminal charges in three separate cases. In case number 

21CR16507, he was convicted of unauthorized use of a vehicle (UUV). In case number 21CR20232, he was convicted of 

second-degree burglary, third-degree theft, and interfering 

with a peace officer. In case number 21CR33295, he was convicted of UUV. Defendant was sentenced in all three cases 

in a single sentencing hearing.

The parties agreed at sentencing that defendant’s 

three prior convictions for second-degree theft qualified him 

as a repeat property offender under ORS 137.717. The state 

recommended that defendant be given the presumptive 

REPO sentences in each case and that the sentences run 

consecutively. Defendant argued for a downward departure 

to probation, citing his particular circumstances, and maintaining that he met the criteria in ORS 137.717(6), which 

provides:

“The court shall sentence a person under this section to 

at least the presumptive sentence described in subsection 

(1)(a) or (b) or (3) of this section, unless the parties stipulate 

otherwise or the court finds that:

“(a) The person was not on probation, parole or postprison supervision for a crime listed in subsection (1) of this 

1 We generally have “no authority to review *** [a] sentence that is within 

the presumptive sentence prescribed by the rules of the Oregon Criminal Justice 

Commission.” ORS 138.105(8)(a)(A). However, that limitation does not apply to 

“presumptive sentences” under ORS 137.717. See State v. Watkins-McKenzie, 

286 Or App 569, 572, 400 P3d 1012 (2017), rev dismissed, 363 Or 224 (2018). 

Defendant’s claim of error is therefore reviewable.
30 State v. Hampton

section at the time of the commission of the current crime 

of conviction;

“(b) The person has not previously received a downward departure from a presumptive sentence for a crime 

listed in subsection (1) of this section;

“(c) The harm or loss caused by the crime is not greater 

than usual for that type of crime; and

“(d) In consideration of the nature of the offense and 

the harm to the victim, a downward departure will:

“(A) Increase public safety;

“(B) Enhance the likelihood that the person will be 

rehabilitated; and

“(C) Not unduly reduce the appropriate punishment.”

The state did not respond to defendant’s argument regarding ORS 137.717(6).

In sentencing defendant, the sentencing court 

explained that it lacked authority to depart downward from 

the presumptive REPO sentences, even if it might otherwise 

be inclined to do so, because ORS 137.717(6)(a) requires a 

“not on probation” finding and defendant was “on probation”:

“Mr. Hampton, I would say a few things before I proceed forward with sentencing. First of all, your attorney 

argued some very compelling points about why you might 

be a good candidate for probation, namely that you haven’t 

been to prison before, first of all. But—and you have had 

some life circumstances go on since you’ve been engaged in 

this criminal activity since April that might warrant you 

having a new perspective on how you address your addiction issues.

“But I am also confined by the Legislature and the laws 

that they put in place for these types of crimes. Specifically, 

the provisions that your attorney is citing regarding my 

ability to place you on a downward departure, meaning not 

[sic] probation, I think are limited because I cannot find 

all factors that are required in order for the Court to impose 

a downward departure. Specifically, 6-A of 137.717 requires 

me to find that you are not on probation. You are actually on 

probation. And then you also committed offenses while you 

were facing already new crimes.
Cite as 327 Or App 28 (2023) 31

“And you admitted the allegation of Aggravating Factors 

in Case No. 232 and 295. Therefore, I cannot receive that 

information and then make the finding that you would be 

eligible for probation.

“In your case, if I had leisure, I would probably do a combination of prison time and probation after you got out. But 

I don’t think that I’m permitted to do that under Oregon 

law, based on the circumstances in your case.”

(Emphasis added.)

The court proceeded to sentence defendant to 20 

months in prison for UUV in case number 21CR16507; 

24 months in prison for second-degree burglary (partially 

consecutive), 30 days in jail for third-degree theft, and 30 

days in jail for interfering with a peace officer in case number 21CR20232; and 26 months in prison for UUV in case 

number 21CR33295. (The court also imposed terms of postprison supervision that are not relevant on appeal.) The burglary sentence and the two UUV sentences were presumptive REPO sentences.

On appeal, defendant contends that the sentencing 

court committed legal error with respect to ORS 137.717(6) 

and its requirements for sentence reduction eligibility. 

Specifically, he argues that the court misconstrued ORS 

137.717(6)(a), which requires a finding that “[t]he person 

was not on probation, parole or post-prison supervision for a 

crime listed in subsection (1) of this section at the time of the 

commission of the current crime of conviction[.]” (Emphasis 

added.) Defendant argues that second-degree theft, the 

crime for which he was on probation, is not a crime listed in 

ORS 137.717(1). The state counters that second-degree theft 

actually is a crime listed in ORS 137.717(1). Alternatively, 

the state argues that the sentencing court also found defendant ineligible based on ORS 137.717(6)(d) and that defendant, having not challenged that finding on appeal, loses in 

any event.

We address the latter issue first. We are unpersuaded that the sentencing court made a finding under ORS 

137.717(6)(d). The court expressly identified ORS 137.717(6)(a) 

as the criterion that defendant could not meet, because it 

required a finding that defendant was “not on probation.” 
32 State v. Hampton

The court did not cite or quote any of the other criteria. 

Nonetheless, the state argues that the court implicitly made 

a finding under ORS 137.717(6)(d) when it stated, “And then 

you also committed offenses while you were facing already 

new crimes. And you admitted the allegation of Aggravating 

Factors in Case No. 232 and 295. Therefore, I cannot receive 

that information and then make the finding that you would 

be eligible for probation.”

The difficulty with the state’s argument is that it is 

not at all clear that those statements by the court refer to 

ORS 137.717(6)(d)—which requires findings regarding public safety, the likelihood of rehabilitation, and appropriate 

punishment—particularly given the court’s next statement, 

that it would “probably do a combination of prison time and 

probation” if it had the authority. There is some possibility that the court intended to make a finding under ORS 

137.717(6)(d), but we cannot infer such a finding on this 

record, given the ambiguity. We therefore assume for purposes of this appeal that the court relied solely on its express 

finding under ORS 137.717(6)(a).

We turn to the issue of ORS 137.717(6)(a). The parties’ disagreement as to whether second-degree theft is a 

crime “listed in” ORS 137.717(1) presents a question of statutory construction. On questions of statutory construction, we 

seek to ascertain the intent of the legislature or the voters 

(whichever applies) by examining the disputed provision’s 

text and context, as well as any helpful legislative history 

of which we are aware. State v. Gaines, 346 Or 160, 171-73, 

206 P3d 1042 (2009); see also State v. Actkinson, 319 Or App 

832, 838, 511 P3d 444, rev den, 379 Or 303 (2022) (explaining that, with regard to acts referred to the voters, the 

legislative history “consists of the materials publicly available to the voters—the measure itself, the ballot title, and 

the Voters’ Pamphlet explanations of the measure, as well 

as contemporaneous media accounts” (internal quotation 

marks and brackets omitted)). Here, we begin and end with 

the text in context, as the parties have not identified, nor 

are we otherwise aware of, any useful legislative history.2

2 ORS 137.717 has a somewhat complicated legislative history. It was originally enacted in 1996 and has been amended several times since then. See Or 
Cite as 327 Or App 28 (2023) 33

The disputed text that we construe in this case is 

one of the requirements for sentence reduction eligibility 

under ORS 137.717(6): a finding that “[t]he person was not 

on probation, parole or post-prison supervision for a crime 

listed in subsection (1) of this section at the time of the commission of the current crime of conviction.” ORS 137.717(6)(a) 

(emphasis added). The parties disagree on the meaning of “a 

crime listed in subsection (1).” To address which crimes are 

“listed in subsection (1),” it is necessary to set out the text of 

subsection (1) in full:

“(1) When a court sentences a person convicted of:

“(a) Aggravated theft in the first degree under ORS 

164.057, burglary in the first degree under ORS 164.225 

or aggravated identity theft under ORS 165.803, the presumptive sentence is 24 months of incarceration, unless the 

rules of the Oregon Criminal Justice Commission prescribe 

a longer presumptive sentence, if the person has:

“(A) A previous conviction for aggravated theft in the 

first degree under ORS 164.057, burglary in the first degree 

under ORS 164.225, robbery in the third degree under ORS 

164.395, robbery in the second degree under ORS 164.405, 

robbery in the first degree under ORS 164.415 or aggravated identity theft under ORS 165.803;

“(B) Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; 

or

“(C) A previous conviction for a crime listed in subsection (2) of this section, if the current crime of conviction was 

committed while the defendant was on supervision for the 

previous conviction or less than three years after the date 

the defendant completed the period of supervision for the 

previous conviction.

“(b) Unauthorized use of a vehicle under ORS 164.135, 

mail theft or receipt of stolen mail under ORS 164.162, burglary in the second degree under ORS 164.215, criminal 

Laws 1996, ch 3, § 1 (Spec Sess); Or Laws 1999, ch 1022, § 2, 4, 7; Or Laws 2001, 

ch 784, § 1; Or Laws 2007, ch 584, § 2; Or Laws 2008, ch 14, § 7 (Spec Sess); Or 

Laws 2009, ch 660, §§ 8, 11; Or Laws 2013, ch 649, § 5; Or Laws 2017, ch 673, § 5.

The provision in ORS 137.717(6) was part of an act referred in 2008 to the voters, 

who adopted it, as discussed in Actkinson, 319 Or App at 838, 840-42.
34 State v. Hampton

mischief in the first degree under ORS 164.365, computer 

crime under ORS 164.377, robbery in the third degree under 

ORS 164.395, forgery in the first degree under ORS 165.013, 

criminal possession of a forged instrument in the first degree 

under ORS 165.022, fraudulent use of a credit card under 

ORS 165.055 (4)(b), possession of a stolen vehicle under 

ORS 819.300 or trafficking in stolen vehicles under ORS 

819.310, the presumptive sentence is 18 months of incarceration, unless the rules of the Oregon Criminal Justice 

Commission prescribe a longer presumptive sentence, if 

the person has:

“(A) A previous conviction for aggravated theft in 

the first degree under ORS 164.057, unauthorized use of 

a vehicle under ORS 164.135, burglary in the first degree 

under ORS 164.225, robbery in the third degree under ORS 

164.395, robbery in the second degree under ORS 164.405, 

robbery in the first degree under ORS 164.415, possession 

of a stolen vehicle under ORS 819.300, trafficking in stolen 

vehicles under ORS 819.310 or aggravated identity theft 

under ORS 165.803;

“(B) Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; 

or

“(C) A previous conviction for a crime listed in subsection (2) of this section, if the current crime of conviction was 

committed while the defendant was on supervision for the 

previous conviction or less than three years after the date 

the defendant completed the period of supervision for the 

previous conviction.

“(c) Theft in the first degree under ORS 164.055 or identity theft under ORS 165.800, the presumptive sentence is 

13 months of incarceration, unless the rules of the Oregon 

Criminal Justice Commission prescribe a longer presumptive sentence, if the person has:

“(A) A previous conviction for aggravated theft in the 

first degree under ORS 164.057, unauthorized use of a vehicle under ORS 164.135, burglary in the first degree under 

ORS 164.225, robbery in the second degree under ORS 

164.405, robbery in the first degree under ORS 164.415, 

possession of a stolen vehicle under ORS 819.300, trafficking in stolen vehicles under ORS 819.310 or aggravated 

identity theft under ORS 165.803; or
Cite as 327 Or App 28 (2023) 35

“(B) Four or more previous convictions for any combination of crimes listed in subsection (2) of this section.”

ORS 137.717 (emphases added).

Defendant argues that “a crime listed in subsection 

(1)” means the crimes to which ORS 137.717(1) applies, i.e., 

a crime for which a person may be sentenced as a repeat 

property offender, as italicized above. Second-degree theft 

is not such a crime. The state counters that “a crime listed 

in subsection (1)” means any crime referenced directly or 

indirectly in ORS 137.717(1), i.e., the crimes for which a person may be sentenced under ORS 137.717(1); the “previous 

conviction” crimes identified in ORS 137.717(1)(a)(A), ORS 

137.717(1)(b)(A), and ORS 137.717(1)(c)(A) (collectively the 

“(A)” subparagraphs); and the “previous conviction” crimes 

that are listed in ORS 137.717(2) and cross-referenced in 

ORS 137.717(1)(a)(B), ORS 137.717(1)(a)(C), ORS 137.717

(1)(b)(B), ORS 137.717(1)(b)(C), and ORS 137.717(1)(c)(B) (collectively the “(B)” and “(C)” subparagraphs). In other words, 

in the state’s view, a crime “listed in” ORS 137.717(1) means 

any crime listed in ORS 137.717(1) or (2); thus, because 

second-degree theft is listed in ORS 137.717(2), it is also 

listed in ORS 137.717(1).3

Three aspects of the text in context particularly 

persuade us that the legislature intended “a crime listed in 

subsection (1)” to refer to the crimes italicized in the block 

quote above.

First, if the legislature had intended for a person on 

probation for a crime listed in subsection (2) to be ineligible 

for a sentence reduction, it presumably would have said that 

in ORS 137.717(6)(a). Instead, ORS 137.717(6)(a) refers only 

to a crime “listed in subsection (1).” Moreover, ORS 137.717(1) 

consistently describes the crimes listed in ORS 137.717(2) as 

“the crimes listed in subsection (2) of this section.” The only 

3 To use a specific example, a person convicted of mail theft, ORS 164.162, 

is subject to the presumptive REPO sentence of 18 months of incarceration if the 

person has “[t]wo or more previous convictions for any combination of the crimes 

listed in subsection (2) of this section.” ORS 137.717(1)(b)(B). The state would 

read that provision to mean that any crime listed in subsection (2) is also listed 

in subsection (1), because subsection (1) refers to previous convictions for crimes 

listed in subsection (2). 
36 State v. Hampton

apparent reason to “list” those crimes in a separate subsection is to facilitate distinguishing between crimes listed in 

subsection (1) and crimes listed in subsection (2).

Second, ORS 137.717(3) reinforces the distinction 

between the crimes listed in the two previous subsections. 

It provides for a two-month increase to the presumptive sentence described in ORS 137.717(1)(a) or (b) “for each previous 

conviction the person has that ** * [w]as for any of the crimes 

listed in subsection (1) or (2) of this section; and * * * [w]as not 

used as a predicate for the presumptive sentence described 

in subsection (1)(a) or (b) or this section.” ORS 137.717(3) 

(emphasis added). The state’s interpretation would require 

us to read “a crime listed in subsection (1) of this section,” 

ORS 137.717(6)(a), to mean exactly the same thing as “the 

crimes listed in subsection (1) or (2) of this section,” ORS 

137.717(3). The language of ORS 137.717(3) strongly suggests 

that the legislature intended “a crime listed in subsection 

(1)” to mean something different from “the crimes listed in 

subsection (1) or (2).”

Third, another requirement to be eligible for sentence reduction under ORS 137.717(6) is a finding that “[t]he 

person has not previously received a downward departure 

from a presumptive sentence for a crime listed in subsection (1) of this section.” ORS 137.717(6)(b). The only “listed” 

crimes for which a person could have previously received a 

downward departure from a presumptive sentence are the 

crimes to which presumptive REPO sentences apply, i.e., the 

crimes italicized in the block quote above. ORS 137.717(6)(b) 

is therefore consistent with reading “a crime listed in subsection (1)” to mean the crimes subject to presumptive sentencing in ORS 137.717(1).

For those reasons, we construe “a crime listed in 

subsection (1) of this section” in ORS 137.717(6) to mean the 

crimes subject to REPO sentencing that are listed by name 

in ORS 137.717(1)(a), (b), and (c). Conversely, we construe 

it not to include crimes of previous conviction that qualify 

a person as a repeat property offender, whether named in 

the “(A)” subparagraphs or cross-referenced in the “(B)” 

and “(C)” subparagraphs. The subparagraph references to 
Cite as 327 Or App 28 (2023) 37

previous convictions for “crimes listed in subsection (2)” 

do not import the crimes listed in subsection (2) into subsection (1), such that the crimes listed in subsection (2) 

become “a crime listed in subsection (1).” We acknowledge 

that the previous-conviction crimes named in the “(A)” subparagraphs in ORS 137.717(1) are more susceptible to being 

characterized as “listed in subsection (1)” than the previousconviction crimes listed in ORS 137.717(2) and only crossreferenced in the “(B)” and “(C)” subparagraphs in ORS 

137.717(1). However, for the reasons described, we are ultimately persuaded that the legislature intended a “crime 

listed in subsection (1)” to mean the crimes subject to REPO 

sentencing that are listed by name in ORS 137.717(1)(a), (b), 

and (c).4

It follows that defendant—who was on probation 

for second-degree theft—was “not on probation, parole or 

post-prison supervision for a crime listed in subsection (1) 

of this section at the time of the commission of the current 

crime of conviction.” ORS 137.717(6)(a). The court therefore 

erred in concluding that defendant was ineligible based on 

ORS 137.717(6)(a), and we vacate and remand the judgments 

for resentencing. On remand, the court should consider the 

other requirements of ORS 137.717(6)—subparagraphs (b), 

(c), and (d)—on which it did not previously make findings.5

We disagree with the state that we should address those 

4 To the extent that defendant suggests that we could treat the previousconviction crimes that are named differently from those that are cross-referenced, 

or that we need not resolve that issue in this opinion, we disagree. Given the 

structure of the statute, not addressing the previous-conviction crimes named 

in the “(A)” subparagraphs of ORS 137.717(1) would require incomplete statutory construction in a way that would compromise the integrity of our analysis. 

As an aside, we observe that, at present, only two previous-conviction crimes—

first-degree robbery and second-degree robbery—appear exclusively in the “(A)” 

subparagraphs.

5 The state points out that, if defendant is found eligible for a sentence reduction under ORS 137.717(6), the sentencing court may impose a downward departure sentence for only one of his convictions. See ORS 137.717(6)(b) (requiring 

a finding that “[t]he person has not previously received a downward departure 

from a presumptive sentence for a crime listed in subsection (1) of this section”); 

Watkins-McKenzie, 286 Or App at 576 (construing “previously received” in ORS 

137.717(6)(b) to include a conviction arising from a separate criminal episode that 

was sentenced earlier in the same proceeding). Defendant’s position on that point 

is unclear. If he disagrees, those arguments should be directed to the sentencing 

court. 
38 State v. Hampton

other requirements on appeal, rather than allowing the 

trial court to do so in the first instance.

Vacated and remanded for resentencing; otherwise 

affirmed.