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 subsec

tion (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 vehi

cle (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 con

victed 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 main

taining 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 down

ward 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 regard

ing 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 pro

ceed 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 addic

tion 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 com

bination 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 num

ber 21CR20232; and 26 months in prison for UUV in casenumber 21CR33295. (The court also imposed terms of postprison supervision that are not relevant on appeal.) The bur

glary sentence and the two UUV sentences were presump

tive 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 defen

dant ineligible based on ORS 137.717(6)(d) and that defen

dant, having not challenged that finding on appeal, loses in
any event.

We address the latter issue first. We are unper

suaded 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 pub

lic 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 possibil

ity 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 pur

poses 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 par

ties’ disagreement as to whether second-degree theft is a crime “listed in” ORS 137.717(1) presents a question of statu

tory 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) (explain

ing that, with regard to acts referred to the voters, the legislative history “consists of the materials publicly avail

able 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 orig

inally enacted in 1996 and has been amended several times since then. See OrCite 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 com

mission 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 pre

sumptive 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 aggra

vated identity theft under ORS 165.803;

“(B) Two or more previous convictions for any combi

nation of the crimes listed in subsection (2) of this section;

or

“(C) A previous conviction for a crime listed in subsec

tion (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, bur

glary 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 incar

ceration, 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 combi

nation of the crimes listed in subsection (2) of this section;

or

“(C) A previous conviction for a crime listed in subsec

tion (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 iden

tity 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 presump

tive sentence, if the person has:

“(A) A previous conviction for aggravated theft in the first degree under ORS 164.057, unauthorized use of a vehi

cle 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, traffick

ing in stolen vehicles under ORS 819.310 or aggravated identity theft under ORS 165.803; orCite as 327 Or App 28 (2023) 35

“(B) Four or more previous convictions for any combi

nation 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 per

son 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) (col

lectively 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 subsec

tion 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 sen

tence 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 sen

tence 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 subsec

tion (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 sub

section (1)” to mean the crimes subject to presumptive sen

tencing 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 toCite 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 sub

section (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)” sub

paragraphs in ORS 137.717(1) are more susceptible to beingcharacterized 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 ulti

mately 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 statu

tory 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 reduc

tion under ORS 137.717(6), the sentencing court may impose a downward depar

ture 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.