Putnam v. Bd. of Parole & Post-Prison Supervision
Putnam v. Bd. of Parole & Post-Prison Supervision
Opinion of the Court
*437Petitioner petitions for judicial review of a decision by the Board of Parole and Post-Prison Supervision setting a 169-month post-prison supervision term. Petitioner assigns error to the board's time calculation, wherein the board did not subtract petitioner's time served on his probationary sentence, prior to his probation revocation sanction, from the post-prison supervision (PPS) term the board imposed upon petitioner's completion of his prison sentence. We affirm the board's order.
The relevant facts are not disputed. When petitioner was sentenced in October 1995 for two counts of first-degree unlawful sexual penetration, ORS 163.411, petitioner's sentencing guideline gridblock was calculated as 10A, which provided for a presumptive sentence of imprisonment. Petitioner instead received a downward dispositional departure sentence of 20 years' probation.
Petitioner sought administrative review of his 169-month term of PPS following his release, arguing that the term was "unlawfully long." Specifically, petitioner argued that the 169-month PPS order was "in violation of the maximum statutory limit of 20 years." Petitioner, relying upon ORS 144.103(1), summarized his argument as a challenge to the " 'Order of Supervision Conditions' interpretation of 'less time served' to mean only that time that [petitioner] spent in prison thus denying the 162 months [petitioner] served towards [his original sentence] on probation." The board, in its Administrative Review Response (ARR), responded, in relevant part:
*438"The Board concludes that your argument regarding the inclusion of your time spent on probation for purposes of calculating your 'term of imprisonment' pursuant to ORS 144.103 (1992) is incorrect."2
*526The board denied petitioner relief. Petitioner then sought judicial review.
On judicial review, petitioner argues that the time he served on probation should count towards the statutory maximum sentence and assigns error to the board imposing a 169-month term of PPS. However, on judicial review, petitioner identifies a different source of law for his contention, former OAR 253-05-002(4) (Sept. 1, 1989), renumbered as OAR 213-005-0002(4) (Mar 8, 1996):
"The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum sentence, the sentencing judge shall reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum."
Former OAR 253-05-002(4) (1989). Before addressing petitioner's substantive arguments, we first consider the state's contention that petitioner failed to preserve the argument he makes on judicial review.
The preservation requirements established in ORAP 5.45(1) apply to review of a board final order. Larsen v. Board of Parole ,
One "purpose of preservation is 'to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.' " State v. Blasingame ,
Adducing particular authorities is not a prerequisite to preservation. Charles v. Palomo ,
Here, although the identification of the source of law on judicial review differs from the source petitioner cited to the board in his request for administrative review, the issue and argument remain the same-time served on probation should be included in the calculation towards the statutory maximum sentence, and the PPS term imposed exceeded the statutory maximum. Further, it is worth *440noting that, when petitioner filed his request for administrative review with the board, petitioner was responding to a board *527order that cited no statute or OAR that would indicate what authority the board relied upon in reaching its calculation.
Ultimately, the board's response to petitioner's request for administrative review indicates the board understood that petitioner was contesting the exclusion of his time spent on probation in the board's calculation of petitioner's PPS. That is, petitioner identified the issue with enough clarity that it does not appear that the board would have been taken by surprise, misled, or denied the opportunity to meet petitioner's argument. Wyatt ,
Turning to the merits of petitioner's argument, orders of the board are subject to judicial review under ORS 144.335(1), and we review those orders under the standards set out in ORS 183.482(8), including for whether an agency has erroneously interpreted a provision of law. See ORS 144.335(3) ; ORS 183.482(8)(a). Petitioner argues that a sentence of probation is subject to the statutory indeterminate maximum sentence under ORS 137.012. Further, he argues that probation is a "sentence" and that former OAR 253-05-002(4) (1989) explicitly states that the "total duration of any sentence" may not exceed the statutory maximum as limited in ORS 161.605. Therefore, a PPS term imposed as part of a revocation sentence must subtract the time spent serving a probationary sentence. Petitioner acknowledges that former OAR 253-05-002(4) (1992) includes the parenthetical "(prison incarceration and post-prison supervision)," but he argues that "[t]hat rule was written to apply to a term of PPS imposed at an original sentencing hearing, not upon revocation."
The board responds that its order is consistent with former OAR 253-05-002(4) (1989) because the parenthetical in that rule specifies "prison incarceration and post-prison supervision" when it refers to the "sentence" to be calculated.
The text of former OAR 253-05-002(4) (1989), which is part of the felony sentencing guidelines, reads:
*441"The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum sentence, the sentencing judge shall reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum."
Former OAR 253-05-002(4) (1989).
In analyzing the meaning of "sentence" as referred to in former OAR 253-05-002(4) (1989), we examine the text, in context, and, where appropriate, legislative history of the OAR, and relevant canons of construction. State v. Gaines ,
"[i]n 1985, the legislature created the Oregon Criminal Justice Council (Council) to develop a series of sentencing guidelines.4 Or. Laws 1985, ch. 558, § 2. The Council developed the Felony Sentencing Guidelines * * *. Although the sentencing guidelines were created as administrative rules, the legislature approved them in 1989, giving them the authority of statutory law. Or. Laws 1989, ch. 790, § 87."
State v. Langdon ,
At the outset, the plain text of former OAR 253-05-002(4) (1989) indicates that the parenthetical that follows the word "sentence" is definitional. That is, it confines the meaning of the term "sentence" to prison incarceration and post-prison supervision. The parenthetical is not an open list, nor does it contemplate other types of sentences. The legislature knows of the existence of probation, *528and could have included it in the parenthetical. Its absence is meaningful. *442Nonetheless, petitioner contends that the interpretation of "sentence" for purposes of OAR 235-05-002(4) (1989) should be controlled by our decision in State v. Molette ,
Additionally, the context of former OAR 253-05-002(4) (1989) supports the conclusion that the legislature did not intend to include probation in its definition of "sentence" in that rule. Because petitioner was given a probationary sentence that was a downward departure, and his probation was revoked, former OAR 253-10-002(2) and (3) (Sept. 1, 1989), renumbered as OAR 213-010-0002(2) and (4) (Mar 8, 1996) as well as former OAR 253-05-002(4) (1989), are implicated.
*443"(2) For those offenders whose probationary sentence was * * * a departure from a presumptive prison sentence * * *, the sentence upon revocation shall be a prison term up to the maximum presumptive prison term which could have been imposed initially.
"(3) When imposing a revocation sanction, the sentencing judge shall also set a term of post-prison supervision in accordance with [former OAR 253-05-002."
Former OAR 253-10-002(2), (3) (1989).
We have noted that "once a probationary sentence is executed, [former OAR 253-10-002 (1989) ] limits the revocation sanction, with respect to the prison term assigned, to those that flow from the gridblock used at the time of sentencing ." State v. Anderson ,
In sum, the plain text of former OAR 253-05-002(4) (1989), as well as contextual rules, establish that time spent on probation is not included as part of the calculation of the statutory maximum sentence, nor the duration of the term of PPS. Accordingly, the board did not err when it declined to include the time petitioner spent on probation prior *529to his revocation in the calculation of petitioner's PPS term.
Affirmed.
Petitioner was also sentenced to 120 months' probation on one count of sexual abuse in the first degree, ORS 163.427 (1991), amended by Or. Laws 1995, ch. 657, § 11.
Petitioner did argue to the board that ORS 144.103(1)'s use of the term "imprisonment" should be understood to include probation. However, petitioner's argument was clearly understood by the board to mean that the time he spent on probation should be considered part of his statutory maximum limit.
Former OAR 253-05-002 (1989) has been renumbered since petitioner committed his crimes. In this opinion, we cite to former OAR 253-05-002 (1989) because that was the version of the rule in effect at the time when petitioner committed his crimes.
The legislature later restructured the Council and renamed it the Oregon Criminal Justice Commission. Or. Laws 1995, ch. 420, § 1.
Former OAR 253-10-002 (Sept. 1, 1989), has been renumbered since petitioner committed his crimes. In this opinion, we cite to the former OAR 253-10-002(2) and (3) (1989) because that was the version in effect at the time petitioner committed his crimes.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.