State v. Willis

No. 369 June 5, 2024 13

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOSHUA JAMES WILLIS,

Defendant-Appellant.

Josephine County Circuit Court

10CR0676; A177724

Robert S. Bain, Judge.

Argued and submitted October 3, 2023.

Kyle Krohn, Deputy Public Defender, argued the cause

for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

E. Nani Apo, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

MOONEY, J.

Affirmed.

14 State v. Willis

Cite as 333 Or App 13 (2024) 15

MOONEY, J.

In 2011, appellant pleaded guilty to unlawful deliv-

ery of marijuana, former ORS 475.860(2) (2009), repealed by

Or Laws 2017, ch 21, § 126. In 2021, while still incarcerated

on other charges, appellant moved to set aside his mari-

juana conviction pursuant to former ORS 475B.401 (2019),

renumbered as ORS 475C.397 (2021).1 The trial court denied

appellant’s motion on the basis that his conviction would not

qualify to be set aside until he completed his term of post-

prison supervision (PPS), which had not yet begun as appel-

lant was still incarcerated. Appellant challenges the denial

of his motion and raises two assignments of error. In his

first assignment, appellant argues that the state constitu-

tion entitled him to court-appointed counsel at the contested

hearing. We conclude that because a contested set aside

hearing is not part of a “criminal prosecution” within the

meaning of Article I, section 11, of the Oregon Constitution,

appellant did not have a right to counsel at the hearing. In

his second assignment, appellant argues that the trial court

erred in denying his motion because PPS is not part of “the

sentence of the court” under ORS 475C.397(7)(b)(C). After

an examination of the text, context, and legislative history

of the statute, we conclude that the legislature intended “the

sentence of the court” to include any attendant term of PPS,

and consequently, appellant’s conviction is not eligible to be

set aside until he completes his term of PPS. We therefore

affirm.

“We review a lower court’s interpretation of a con-

stitutional provision for legal error.” State v. Rangel, 328 Or

294, 298, 977 P2d 379 (1999); see also State v. Whitten, 278

Or App 627, 628, 379 P3d 707 (2016) (reviewing for errors

of law a trial court’s determination that a traffic violation

proceeding is not a “criminal prosecution” pursuant to

Article I, section 11). Similarly, whether a movant is entitled

to have their conviction set aside is a question of law which

we review for legal error. State v. Singleton, 317 Or App 49,

50, 503 P3d 499 (2022).

1

The statute has not been substantively amended since its enactment, and

accordingly, we refer to the current numbering of the statute for the remainder of

the opinion.

16 State v. Willis

The pertinent facts are procedural and undisputed.

In 2011, appellant entered a plea deal to resolve six pend-

ing criminal cases against him. As part of that deal, he

pleaded guilty to unlawful delivery of marijuana, among

other charges. On the delivery conviction, appellant was

sentenced to 26 months of incarceration followed by a three-

year term of PPS. In total, the deal resulted in a 164-month

term of incarceration.

In 2014, Oregon voters legalized the possession,

manufacture, and sale of marijuana, subject to state licens-

ing requirements and regulation. See generally Or Laws

2015, ch 614. The state legislature subsequently enacted a

set aside process by which individuals could remove mari-

juana related convictions from their criminal records, pro-

vided that the conviction is “qualifying,” defined as follows:

“ ‘Qualifying marijuana conviction’ means a conviction

for a marijuana offense:

“(A) Based on conduct described in ORS 475C.305 or

possession of less than one ounce of the dried leaves, stems

or flowers of marijuana;

“(B) Committed prior to July 1, 2015; and

“(C) For which the person has completed and fully

complied with or performed the sentence of the court.”

ORS 475C.397(7)(b).

In 2021, appellant moved to set aside his deliv-

ery conviction pursuant to ORS 475C.397. At that time,

appellant had completed the 26-month term of incarcer-

ation imposed for the delivery conviction, but he was still

incarcerated under the terms of the plea deal. The District

Attorney objected to appellant’s motion on the basis that the

delivery conviction would not qualify for the set aside until

appellant was no longer incarcerated and had completed his

three-year term of PPS.

The trial court held a contested hearing on appel-

lant’s motion. At that hearing, appellant asked whether he

could “request for counsel.” The trial court explained that

appellant was not entitled to court-appointed counsel:

Cite as 333 Or App 13 (2024) 17

“I don’t think you’re entitled to a court appointed attor-

ney. You’re certainly welcome to have an attorney represent

you. But I’m not, I don’t believe you have the right to a court

appointed attorney on a motion to set aside a conviction.”

The hearing proceeded with appellant unrepresented. The

court ultimately denied appellant’s motion on the basis that

his delivery conviction did not qualify under the statute

because appellant had not yet completed his PPS.

Beginning with appellant’s first assignment of

error, the question is whether a set aside proceeding is part

of a “criminal prosecution” within the meaning of Article I,

section 11. Appellant argues that “[a] contested hearing to

set aside a conviction triggers the right to counsel, because

it is an adversarial hearing involving a prosecutor, it occurs

as part of the criminal case, the burden of proof is on the

[appellant], and the stakes include the stigma of a criminal

conviction.” Specifically, appellant asserts that a contested

set aside hearing is a “continuation of the criminal case”

because the proceeding is “held in the court of conviction,

typically under the same case number (as happened here).”

The state responds that “a proceeding initiated by a motion

to set aside a conviction, although related to a criminal case,

is not, itself, a criminal prosecution.” Accordingly, in the

state’s view, the state constitutional right to counsel does

not apply. For the reasons that follow, we agree with the

state.

Article I, section 11, provides, in part:

“In all criminal prosecutions, the accused shall have

the right * * * to be heard by himself and counsel[.]”

To determine whether an individual is entitled to court-

appointed counsel, the first question then is “whether there

is a ‘criminal prosecution[ ],’ because the text of Article I,

section 11, makes the right to counsel applicable only in

that instance.” State v. Gray, 370 Or 116, 130-31, 515 P3d

348 (2022) (brackets in original). If the proceeding is part

of a criminal prosecution, in addition to any “critical stage”

of the prosecution, “counsel cannot be excluded from any

stage of the criminal prosecution at which a defendant is to

be ‘heard,’ ” and where, “without the assistance of counsel,

18 State v. Willis

the legal interests of the defendant might be prejudiced.”

State ex rel Russell v. Jones, 293 Or 312, 315, 647 P2d 904

(1982); see also State v. Davis, 350 Or 440, 475, 256 P3d

1075 (2011) (noting that the scope of the state constitutional

right to counsel is not limited to critical stages of criminal

prosecutions).

To determine whether a proceeding is a “criminal

prosecution” for constitutional purposes, we evaluate the

punitive significance and the penal characteristics of the

proceeding, specifically considering the type of offense, the

penalty incurred, the collateral consequences, the stigma-

tizing effect of the judgment, and the availability of pretrial

arrest and detention. State v. Benoit, 354 Or 302, 308, 311

P3d 874 (2013) (discussing Brown v. Multnomah County

Dist. Ct., 280 Or 95, 102-08, 570 P2d 52 (1977)). “[A]ll those

factors are relevant, but none is conclusive * * *.” Benoit, 354

Or at 308 (internal quotation marks and brackets omitted).

If the proceeding “retains too many penal characteristics,”

it is part of a “criminal prosecution” for purposes of Article I,

section 11. Id. (internal quotation marks omitted).

At the outset, we note that the Oregon Supreme

Court has squarely held that a set aside proceeding is not

a criminal proceeding for jurisdictional purposes. State v.

K. P., 324 Or 1, 5, 921 P2d 380 (1996). In K. P., the court held

that a set aside proceeding is “not a criminal action” and

thus, “an appeal of the ruling on that motion * * * is not gov-

erned by ORS chapter 138[,]” relating to criminal appeals.

Id. Rather, a set aside proceeding is a “special statutory

proceeding” under former ORS 19.010(4) (1995), renumbered

as ORS 19.205(5) (2003), and Oregon appellate courts have

jurisdiction to review an appeal of the ruling on the motion

under ORS chapter 19, relating to appeals generally. Id. at

5-6. In reaching its conclusion, the court reasoned that a

set aside proceeding serves a “rehabilitative function” and is

therefore “the antithesis of the original criminal conviction,

not an adjunct to it.” Id. Because K. P. involved the interpre-

tation and application of jurisdictional statutes, its holding

does not fully resolve the constitutional question before us.

See Brown, 280 Or at 102 (“When the legislature has defined

conduct as a criminal offense, it is a criminal offense for

Cite as 333 Or App 13 (2024) 19

constitutional purposes even if the same consequences could

have been attached to the same conduct by civil or admin-

istrative proceedings. But it does not follow that a law can

avoid this result simply by avoiding the term ‘criminal’ in

defining the conduct to be penalized. Constitutional guaran-

tees have more substance than that.”). We find the underly-

ing reasoning in K. P. instructive because it is analogous to

the constitutional test set out above, in that the court in K. P.

similarly assessed whether the proceeding serves a punitive

function.

Returning to the governing constitutional princi-

ples, a set aside proceeding does not fit neatly into the multi-

factor evaluation originally identified in Brown. To start, a

set aside proceeding under ORS 475C.397 is not designed

to prove whether an individual has engaged in certain con-

duct constituting an “offense.” Further, the appellant does

not incur a penalty if their motion fails. Although a set aside

proceeding requires an underlying criminal conviction,

which in many cases, including appellant’s, carried with it

the possibility of imprisonment, the set aside process is a

remedy that does not otherwise affect the movant’s punish-

ment. State v. Burke, 109 Or App 7, 12, 818 P2d 511 (1991),

rev den, 312 Or 589 (1992) (holding that removing child

abuse convictions from eligibility for “the set aside remedy”

does not violate the Ex Post Facto Clauses of the state or

federal constitutions). As we have explained:

“The availability of a procedure for sealing one’s criminal

record is unrelated to the length or nature of an individual’s

incarceration or constructive custody. It does not increase

imprisonment, forestall parole or extend probation. It does

not decrease the trial judge’s discretion to impose the sen-

tence that is most appropriate for the individual. Further,

it is a collateral matter that does not change the primary

effect of a conviction.”

Id. (emphasis in original). Finally, pretrial arrest and

detention are not available to the court while the motion is

pending.

Appellant emphasizes the stigmatizing effect of

the set aside proceeding. When a trial court denies a set

aside motion, the consequence for the movant is that the

20 State v. Willis

conviction remains on their record, which, we acknowledge,

allows the stigma of that conviction to continue. Importantly

though, that stigma attaches at the time of conviction, not at

the time the motion is denied. Moreover, we have previously

observed that “the social stigma that may attach to an indi-

vidual with a criminal record is inflicted by the citizenry

and the community,” and therefore, the denial of a set aside

motion “cannot constitute the governmental imposition of a

‘punishment,’ in the constitutional sense of that word.” Id.

at 13. Indeed, the core purpose of the set aside process is

to remove that stigma: “The legislature intended [set aside

proceedings] to combat the stigma associated with the pub-

lic nature of a record of arrest or conviction by providing

individuals with such a record the opportunity to purge it

and start fresh.” State v. McVein, 305 Or App 525, 529, 471

P3d 796 (2020). We conclude that the set aside process is not

punitive in nature and that the proceeding itself does not

retain the penal characteristics of a criminal prosecution.

As to appellant’s assertion that the proceeding is

a continuation of the criminal case because it is held in the

court of conviction under the same case number, the Supreme

Court has previously rejected such a “formalistic approach”

in favor of a functional assessment. See State v. Branstetter,

332 Or 389, 397, 29 P3d 1121 (2001). In Branstetter, the

Supreme Court held that a forfeiture order was sufficiently

“separate” from the underlying criminal prosecution, and

therefore, the appellate courts have jurisdiction to review

that order as a “special statutory proceeding.” Id. at 392. In

that case, before the appellant was acquitted, the trial court

entered a forfeiture order against the appellant that was

filed as part of the underlying criminal action. Id. at 393-94.

The state argued that the forfeiture order was unappealable

because the action was formally part of the criminal case,

and our criminal jurisdictional statutes do not provide for

an appeal from an acquittal. Id. at 394. The court rejected

the state’s argument that formal separateness, specifically

separate case numbers, was required. Id. at 397. Rather, the

court reasoned that although a forfeiture proceeding “for-

mally depends on a criminal action for its existence in that

it can go forward only if a criminal action of a specified sort

is pending, that kind of forfeiture proceeding does not arise

Cite as 333 Or App 13 (2024) 21

out of the criminal action, resolve any controversy in the

criminal action, or otherwise affect or depend on the sub-

stance of the criminal action.” Id. at 398-99.

While Branstetter, like K. P., did not resolve a con-

stitutional question, we similarly find its underlying reason-

ing helpful. A formalistic approach that simply matches the

case number and court of conviction is incongruent with the

multi-factor evaluation set out in Brown, where no single

factor is dispositive. Just as Branstetter noted that a forfei-

ture proceeding depends on the existence of an underlying

criminal action but does not otherwise resolve or have any

other effect on that action, we note that the same is true in

the context of set aside proceedings. While a set aside pro-

ceeding necessarily requires an underlying criminal convic-

tion, it is otherwise disconnected from the substantive com-

ponents of that criminal case because it does not involve the

adjudication of guilt or otherwise affect sentencing. Because

a set aside proceeding under ORS 475C.397 is not part of a

“criminal prosecution,” Article I, section 11, does not entitle

a movant to court-appointed counsel at a contested set aside

hearing. Accordingly, the trial court did not err in denying

appellant’s request for court-appointed legal counsel.

Turning to appellant’s second assignment of error,

the question is whether a movant must complete PPS to fully

comply with “the sentence of the court” before their con-

viction qualifies to be set aside under ORS 475C.397(7)(b).

As noted above, a qualifying marijuana conviction is a con-

viction (1) based on conduct described in ORS 475C.305,

(2) committed prior to July 1, 2015, and (3) for which the

person “has completed and fully complied with or performed

the sentence of the court.” ORS 475C.397(7)(b). Appellant

argues that he complied with “the sentence of the court”

when “he fully served his prison sentence and paid all his

fees.” In appellant’s view, his three-year term of PPS is not

part of his sentence, and, therefore, the trial court erred in

denying his motion. We conclude, as the state argued, that

the text, context, and legislative history of ORS 475C.397

indicates that the legislature intended “the sentence of the

court” to include a term of PPS.

22 State v. Willis

When interpreting a statute, our task is to give effect

to the intent of the legislature, and to do so, we first exam-

ine the statute’s text and context, then consider the relevant

legislative history to the extent it is useful to the analysis.

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). If

the legislature’s intent remains unclear after examining the

text, context, and relevant legislative history, we resort to

general maxims of statutory construction. Id. at 172.

We begin with the plain text of ORS 475C.397(7)(b)(C)

which refers to the “sentence of the court,” without defin-

ing that term or otherwise referencing PPS. ORS chapter

475C similarly does not define “sentence.” We turn, then, to

dictionaries:

“[W]e presume that the ordinary meaning of a word is

reflected in a dictionary. While Oregon courts generally

rely on Webster’s Third New International Dictionary, con-

sulting several dictionaries * * * better ensures that a court

determines a word’s ordinary usage and avoids the possi-

bility that dictionary selection affects the outcome.”

Hollister, 305 Or App 368, 373, 470 P3d 436 (2020) (inter-

nal quotation marks and citations omitted). As relevant

here, Webster’s defines “sentence” as “a decision or judicial

determination of a court or tribunal” such as “the judgment

passed by a court or judge on a person on trial as a crim-

inal or offender” or “the order by which a court or judge

imposes punishment or penalty upon a person found guilty.”

Webster’s Third New Int’l Dictionary 2068 (unabridged ed

2002). Black’s Law Dictionary defines “sentence” as “[t]he

judgment that a court formally pronounces after finding a

criminal defendant guilty; the punishment imposed on a

criminal wrongdoer.” Black’s Law Dictionary 1636 (11th ed

2019). We have likewise observed in the context of a juvenile

delinquency case that a sentence “must be ordered by the

court, it must be a disposition that affects a criminal or an

offender, and it should serve to punish or penalize.” State v.

Trice, 146 Or App 15, 19, 933 P2d 345, rev den, 325 Or 280

(1997). A term of PPS is ordered by the court and included

in the judgment, its imposition requires a criminal offender

to continue under the supervision of the Department of

Corrections while in the community, and its duration is tied

Cite as 333 Or App 13 (2024) 23

to the seriousness of the crime of conviction. OAR 213-005-

0002(2) - 213-005-0003. PPS, thus, appears to fall within

the definition of “sentence.”

We look next to the statute’s context, specifically,

Oregon’s sentencing guidelines, which define PPS as part of

an offender’s “sentence.” OAR chapter 213 outlines sentenc-

ing guidelines, and the legislature has expressly approved

those rules, giving them the authority of statutory law. Or

Laws 1989, ch 790, § 87; State v. Langdon, 330 Or 72, 74, 999

P2d 1127 (2000) (“Although the sentencing guidelines were

created as administrative rules, the legislature approved

them in 1989, giving them the authority of statutory law.”).

Specifically, OAR 213-005-0002(1) provides that “[a] term of

community supervision is part of the sentence for any felony

offender * * *.” (Emphasis added.) OAR 213-005-0002(4) also

provides that “the total duration of any sentence” includes

“prison incarceration and post-prison supervision.” We think

it unlikely that the legislature intended to deviate from the

definition of “sentence” provided by the sentencing guide-

lines without explicitly providing an alternative definition.

We also look to the general set aside statute, ORS

137.225, for context. The general set aside statute requires

that an individual “has fully complied with and performed

the sentence of the court” to be eligible for a set aside. ORS

137.225(1)(a). In State v. Branam, 220 Or App 255, 259, 185

P3d 557, rev den, 345 Or 301 (2008), we addressed the ques-

tion whether the defendant’s noncompliance with his initial

sentence of probation made him ineligible for a set aside.

We concluded that the “relevant sentence” under the set

aside statute “is the one that ultimately is imposed—here,

the incarceration sentence imposed after revocation of [the]

defendant’s probation.” Id. at 260. We added that “where a

defendant initially is sentenced to probation but probation is

later revoked and the defendant is sentenced to an incarcer-

ation term (and accompanying term of [PPS]), the relevant

‘sentence of the court’ * * * is the incarceration term[.]” Id. at

263-64. Appellant relies on that latter language in Branam

to argue that we were excluding PPS from an offender’s

sentence in the context of the general set aside statute. But

he reads more into Branam than is there. The language

24 State v. Willis

describing the relevant sentence as the “incarceration term”

must be understood in the context of our broader conclusion

in Branam that the “sentence of the court” is the sentence

ultimately completed by the appellant, notwithstanding any

intervening period of probation that is later revoked. The

question whether PPS is included in the “sentence of the

court” was neither raised nor decided in Branam.

The legislature amended ORS 137.225 after we

decided Branam. Importantly, the legislative history of

those amendments does not reference Branam. And while

the amendments affected how the general set aside statute

treats probation revocation by clarifying that “[a] person

whose sentence of probation was revoked may not apply to

the court for entry of an order setting aside the conviction

* * * for a period of 10 years from the date of revocation[,]”

Or Laws 2015, ch 820, § 32a, the change did not concern

whether PPS is part of “the sentence of the court.” How long

a person must wait to apply for the general set aside of a

conviction after violating and having been revoked on the

probation that he or she was serving on that conviction is a

different question from whether PPS is included in the “sen-

tence of the court” that must be fulfilled to qualify for the

filing of a motion to set aside in the first instance.

The 2015 amendments also added language to ORS

137.225 that clarified that “[a] person who is still under

supervision, or who is still incarcerated, * * * has not fully

complied with or performed the sentence of the court.” Or

Laws 2015, ch 820, § 32a. As appellant notes, that same clari-

fying language was not expressly included in the marijuana

set aside statute, enacted in 2019. But the 2015 amendment

to ORS 137.225 simply made explicit that the definition of

“sentence” in that statute is aligned with the definition of

“sentence” already provided by the administrative rules and

approved by the legislature. We do not read the omission

of that clarifying language from ORS 475C.397 to reflect

an intent by the legislature to exclude PPS from the term

“sentence of the court.” Indeed, such a reading would create

inconsistency between the text of ORS 475C.397 and context

that we have already described in which that text exists.

Cite as 333 Or App 13 (2024) 25

Finally, we turn to the legislative history of ORS

475C.397 to the extent that it might be helpful. That history

suggests that the legislature intended the set aside process

to be expedient. See Audio Recording, Senate Committee on

Judiciary, SB 420, Apr 5, 2019, at 3:13 (comments of Sen

Lew Frederick), https://olis.oregonlegislature.gov (accessed

Apr 30, 2024) (“Senate Bill 420 * * * would streamline the

expungement process by only requiring those seeking to

clear their records to complete a simple form, which petitions

the court to set aside the conviction. Senate Bill [420] would

allow for an expedited expungement of a marijuana offense

for a conviction prior to July 1, 2015, for any conviction that

would * * * now be legal under ORS 475B.”). However, the

legislative history does not affirmatively demonstrate that

the legislature intended to accomplish that expediency by

allowing individuals to apply for a set aside before complet-

ing the “sentence of the court,” including PPS. The legislative

history suggests instead that legislators were specifically

concerned that a judicial or administrative set aside process

without an accompanying source of revenue would impede

the bill’s mission and efficacy. See Audio Recording, House

Committee on Judiciary, SB 420, May 22, 2019, at 1:00:27

(comments of Rep Duane Stark), https://olis.oregonlegisla-

ture.gov (accessed Apr 30, 2024) (“I am concerned overall

of the ongoing impact to [the Oregon Judicial Department]

if we are providing yet another free service that could

increase their workload * * *. * * * I’m worried that when our

courts aren’t open long enough already, that adding more

free things is going to continue to have a negative effect on

their ability to serve people appropriately.”). The legislature,

thus, intended to create a streamlined process for setting

aside qualifying marijuana convictions to avoid financial

burden to the state. The legislative history does not support

defendant’s theory that the legislature intended to omit PPS

from the meaning of the term “sentence of the court” as used

in the marijuana set aside statute.

The text, context, and relevant legislative history

strongly suggest that the legislature did not intend the mean-

ing of “the sentence of the court” in ORS 475C.397(7)(b)(C)

to deviate from the definition provided in the sentencing

guidelines. We conclude that PPS is part of the sentence that

26 State v. Willis

appellant must complete before he is eligible to have his mari-

juana conviction set aside. The trial court did not err in deny-

ing his motion on that basis.

Affirmed.