The case against stipulated probation sanctions
by: Kkrohn • February 8, 2014 • no comments
You’ve just been appointed or retained to represent a client at a probation violation hearing, and even though the alleged violation is a single dirty UA, the stakes couldn’t be higher. Turns out your client originally pleaded guilty to a Measure 11 crime in exchange for a downward departure to probation, with two notable stipulations. First, your client stipulated to “zero tolerance” probation, meaning that any violation, no matter how technical, will automatically result in revocation. Second, your client stipulated to a particular sentence on revocation: imposition of the full 70-month Measure 11 prison sentence.
Naturally your first line of defense will be to contest the alleged violation. Or perhaps you’ll speak to the prosecutor, who, being reasonable, will agree to recommend a mild sanction and the continuation of probation. But what if the court finds a violation, and the DA asks the court to revoke probation and send your client to prison for nearly six years? How do you respond when the judge asks you about the effect of your client’s stipulations to zero tolerance and a 70-month prison sentence?
Your response should be that the law not only permits the judge to disregard both of those stipulations, the law in fact prohibits the judge from enforcing them. Regardless of what the parties agreed to at the prior plea proceeding, the trial court is obligated to follow the law, and the law does not allow for zero tolerance probation or stipulated probation revocation sanctions.
Probation has long been considered “a matter of discretion.”[1] The trial court’s discretion over probation continues to this day and is embodied in the sentencing guidelines, which provide that “[t]he decision to revoke probation is discretionary….”[2] Moreover, the legislature has made it a matter of state policy that decisions regarding probation violation sanctions “must be made upon a reasonably systematic basis that will insure that available prison space is used to house those offenders who constitute a serious threat to the public, taking into consideration the availability of both prison space and local resources.”[3]
“Zero tolerance” probation is incompatible with the trial court’s duty to exercise discretion in choosing an appropriate sanction. “‘[D]iscretion’…refers to the authority of a trial court to choose among several legally correct outcomes. If there is only one legally correct outcome, ‘discretion’ is an inapplicable concept.”[4] That is, it is the trial court’s choice whether to “tolerate” a probation violation or not, and that choice cannot be taken away by the parties’ prior stipulation. A trial court that considers itself bound by such a stipulation fails to properly exercise its discretion and thereby errs as a matter of law.
If the trial court chooses to revoke probation, its discretion extends to the nature of the sanction to be imposed. However, that discretion is limited. ORS 137.545(5)(b) authorizes a trial court that has found a probation violation to “revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice Commission.” Those rules—i.e., the sentencing guidelines—provide that in most cases involving downward departures to probation, the maximum probation revocation sanction is the high end of the presumptive range under the guidelines.[5] The guidelines also provide that “[n]o revocation sanction may exceed the limitations established by this rule.”[6]
That limitation does not change in the Measure 11 context. Measure 11, codified at ORS 137.700, mandates the imposition of minimum prison sentences for certain felonies. However, for some Measure 11 offenses, the trial court may impose a lesser sentence, even a sentence of probation, under the opt-out statute ORS 137.712. A sentence of probation for a Measure 11 offense—even when there is a stipulated “Measure 11” probation revocation sanction—is a sentence pursuant to ORS 137.712, not Measure 11. “The only statute that allows a dispositional departure for a Measure 11 offense is ORS 137.712.”[7]
A Measure 11 offense does have one exception to the usual rule—when the trial court revokes probation imposed under ORS 137.712 because the defendant committed a new crime, ORS 137.712(5) requires the court to impose the presumptive sentence under the guidelines. However, when the court revokes probation for a violation other than a new crime, the court may impose any sentence up to the presumptive sentence.[8] In either case, the trial court has no authority to impose the Measure 11 sentence. The court may never exceed the maximum presumptive sentence, which in most cases will be far less than what the defendant stipulated to.
Another important limitation is that consecutive revocation sanctions are not permitted unless the court finds multiple probation violations.[9] That limitation applies even when the underlying offenses were part of different criminal episodes,[10] or had different victims.[11] And keep in mind that these limitations apply to all felonies, not just Measure 11 crimes. For example, the guidelines do not permit upward durational departure sanctions. If your client’s grid block was 6-D, his maximum revocation sanction is the maximum presumptive sentence of 14 months—even if he stipulated to 28. The prosecutor may argue that your client’s previous stipulation to the sanction changes things, and may cite cases such as Ivie which held that appellate review is not available for stipulated sentences. However, that is the appellate attorney’s problem to deal with—not yours. Ivie relied upon ORS 138.222(2)(d), which provides that “the appellate court may not review” “[a]ny sentence resulting from a stipulated sentencing agreement….” That statute applies only to the appellate court, and provides only that appellate review is not available for such a sentence. The statute does not state that a stipulated sentence is lawful and does not grant the trial court any authority to impose a stipulated sentence.[12]
In fact, the Court of Appeals has expressly held that “when the trial court’s authority to impose a sentence is limited by statute, it may not exceed the limitations of the statute, regardless of a defendant’s consent to the sentence.”[13] The trial court’s authority over probation revocation sanctions is limited under ORS 137.545(5)(b), and the defendant’s consent does not permit the court to exceed that authority. In short, even if appellate review is not available, the trial court must still follow the law.
- ↑ Barker v. Ireland, 238 Or 1, 4, 392 P2d 769 (1964).
- ↑ OAR 213-010-0001.
- ↑ ORS 137.592(2).
- ↑ State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000).
- ↑ OAR 213-010-0002(2).
- ↑ OAR 213-010-0002(5).
- ↑ State v. Ivie, 213 Or App 198, 208 n 5, 159 P3d 1257 (2007).
- ↑ OAR 213-010-0002(2)
- ↑ OAR 213-012-0040(2).
- ↑ State v. Lewis, 257 Or App 641, 307 P3d 560 (2013).
- ↑ State v. Lane, 260 Or App ___, ___ P3d ___ (January 8, 2014).
- ↑ Interestingly, the statute applies only “on appeal from a judgment of conviction ….” ORS 138.222(2). A probation violation judgment is not a judgment of conviction, and a clever appellate attorney might argue that the court erred in Ivie because it applied that statute to the wrong kind of appeal.
- ↑ State v. Taylor, 116 Or App 647, 652-53, 842 P2d 460 (1992), adh’d to as modified on recons, 119 Or App 209, 850 P2d 1118, rev den, 317 Or 584 (1993).
