Minus Time Served?
by: Ryan • February 8, 2011 • no comments
It is not unusual for someone charged with a M11 sexual offense to resolve his or her case with a plea to an "attemped" version of the same crime. It's a vehicle for the state to obtain a prison sentence for the offense without going to trial, and a way for the defendant to escape a M11 sentence.
How long is Post-Prison Supervision in this situation? For, say, a B felony, attempted sex crime, the length of post-prison supervision is governed by the following statute:
"144.103 Term of post-prison supervision for person convicted of certain offenses. (1) 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, 163.375, 163.395, 163.405, 163.408, 163.411, 163.425 or 163.427 shall serve a term of 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." [Emphasis added.]
The way this language will be reflected in the judgment is often this: "the period of post-prison supervision is 10 years minus the time actually served."
Do you see the difference? Notice how the word "actually" got stuck in the boilerplate language, even though it doesn't appear in the statute?
I believe that the language in the judgment is intended to reflect the possibility of the defendant earning good time and, in such a situation, to lengthen the period of pps for any good time received. Therefore, a defendant who gets a 60 month sentence, receives 12 months off for good behavior, would have only "actually" served 48 months. Therefore, pps would be 120 - 48 or 72 months.
But if the language of the statute really meant the time "legally" served, then the defendant has legally served a 60-month sentence, even though he was out in 48 months. Therefore, his post-prison supervision should only be 60 months.
A lot of this is speculation. I haven't had a reason to investigate this issue, and I rarely represent people on post-prison supervision. But two thoughts: one, if sneaking in the word "actually" is intended to lengthen the post-prison supervision period by the time off the inmate received for good behavior, that may amount to the unlawful imposition of an indeterminate amount of post-prison supervision. See State v. Mitchell.
In the meantime, I think defense attorneys need to stop agreeing to a period of pps "minus time actually served" or even "minus time served." Rather, on that B felony where the defendant is serving 60 months - and maybe he'll get good time and maybe he won't - he should only agree to 60 months of post-prison supervision. Any other language would risk the possibility of an indeterminate sentence that is unlawful for the reasons mentioned in Mitchell.
Again, however, this is not my area of expertise and I have not researched it. I could very well be wrong. (Heck, I can be wrong even when I have researched something.) But unless you know I'm wrong, unless you know I'm missing something, I recommend the approach above.
