Post-Prison Supervision
by: Ryan • October 3, 2013 • no comments
I was in court the other day when a defendant was sentenced to prison on two C felonies, one for 60 months and the other for 54. He was given 6 months of PPS on the 54-month sentence, but it became clear that everyone -- judge, prosecutor and defense attorney -- believed that the 6 months would expire while he served the extra 6 months on the 60-month sentence.
All of the lawyers involved were quite experienced, and I have a great deal of respect for all of them, but they were in error.
Post-prison never begins until you get out of prison. This can be a big deal if your client gets 60 months on a C felony (with no post-prison, because any PPS on a 60 month sentence on a C felony would be illegal) and two years of concurrent prison, with 3 years of post prison. He will do all three years of that post-prison. You'll want to make sure your client understands that.
But this can also be a negotiating tool. Let's say you want your client to have expungeable convictions. The state wants your client to serve five years in prison AND get post-prison supervision because he merits the additional attention. To satisfy both of you, have your client plead to two C felonies, and if the prison on one is five years, make sure he gets PPS on the other.
Anyway, authority for the above can be found in the OARs, in the OCDLA Felony Sentencing Manual and in a case called Norris v. Board of Parole and PPS, 237 Ore. App. 1 (Or. Ct. App. 2010) which has headnotes which say things like:
- An offender cannot begin to serve some post-prison supervision (PPS) while still lawfully incarcerated. The statutes and rules governing post-prison supervision are all patently predicated on the contrary premise: PPS pertains exclusively to supervision of the offender following release from lawful incarceration. Or. Rev. Stat. § 144.096, 144.102(1); Or. Admin. R. 213-005-0002(1), 213-005-0003, 213-011-0003, and 213-011-0004. Case law further underscores this understanding.
And,
- Or. Admin. R. 213-012-0040(1) provides in part that, where an offender has been sentenced to multiple terms of post-prison supervision (PPS), the terms of PPS shall be served as a single term. The rule merely provides that, where multiple terms of PPS are imposed, those terms shall be served concurrently--that is, even in cases in which consecutive sentences have been imposed, the separate PPS terms on each conviction cannot be stacked. Nothing in Rule 213-012-0040(1) refers to an offender's "primary offense," much less mandates "merger" of an offender's terms of PPS according to his or her "primary offense." "Primary offense" is defined to mean the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense. Or. Admin. R. 213-003-0001(17)
