Samson v. Brown

319

Argued and submitted February 8, affirmed March 31, 2021

JEREMY SAMSON,

Plaintiff-Respondent,

v.

Nicole BROWN,

Superintendent,

South Fork Forest Camp,

Defendant-Appellant.

Tillamook County Circuit Court

19CV35198; A173284

486 P3d 59

This habeas corpus action presents a question of first impression regard-

ing the correct construction of ORS 137.635, a statute that applies when sen-

tencing repeat offenders on certain felonies. When applicable, ORS 137.635(1)

precludes eligibility for earned-time credit. The question presented is whether

a person serving two prison sentences concurrently—one of which is subject to

ORS 137.635 and one of which is not—may receive earned-time credit on the

sentence not subject to ORS 137.635. The superintendent answers no, whereas

plaintiff answers yes. In plaintiff’s view, a person serving a sentence subject to

ORS 137.635 may not receive earned-time credit on that sentence, but the per-

son may receive earned-time credit on a concurrently served sentence that is

not subject to ORS 137.635. The trial court agreed with plaintiff and ordered

his release from custody, based on the recalculation of his earned-time credit.

Held: The trial court did not err. Based on the text, context, and legislative his-

tory, ORS 137.635(1) precludes earned-time credit as to any sentence subject to

ORS 137.635 but does not preclude earned-time credit as to a concurrently served

sentence that is not subject to ORS 137.635.

Affirmed.

Mari Garric Trevino, Judge.

Timothy A. Sylwester argued the cause for appellant. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Jedediah Peterson argued the cause for respondent. Also

on the brief was O’Connor Weber LLC.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

AOYAGI, J.

Affirmed.

320 Samson v. Brown

AOYAGI, J.

The superintendent appeals a judgment granting

habeas corpus relief to plaintiff. In dispute is the correct

construction of ORS 137.635(1), which applies to sentenc-

ing of repeat offenders on certain felonies and, among other

things, precludes eligibility for earned-time credit. The

question is whether a person serving two prison sentences

concurrently, one of which is subject to ORS 137.635 and

one of which is not, may receive earned-time credit on the

sentence not subject to ORS 137.635. The superintendent

says no, while plaintiff says yes. The trial court agreed with

plaintiff’s construction of ORS 137.635(1) and ordered his

release from custody, based on recalculation of his earned-

time credit. We conclude that the trial court correctly con-

strued the statute and, accordingly, affirm.

Plaintiff was convicted of first-degree burglary,

attempted second-degree robbery, and attempted second-

degree assault. As relevant here, he was sentenced to 60

months in prison on the burglary conviction, subject to ORS

137.635; 40 months in prison on the attempted-robbery con-

viction, to be served concurrently with the burglary sen-

tence, with eligibility for “CTS/good time”; and 40 months

in prison on the attempted-assault conviction, to be served

consecutively to the attempted-robbery sentence (but con-

currently with the remaining burglary sentence), with eligi-

bility for “good time/CTS.” Thus, for present purposes, plain-

tiff was essentially required to serve a 60-month sentence

subject to ORS 137.635 and a concurrent 80-month sentence

(40 months + 40 months) not subject to ORS 137.635.

ORS 137.635(1) provides:

“When, in the case of a felony described in subsection (2)

of this section, a court sentences a convicted defendant who

has previously been convicted of any felony designated in

subsection (2) of this section, the sentence shall not be an

indeterminate sentence to which the defendant otherwise

would be subject under ORS 137.120, but, unless it imposes

a death penalty under ORS 163.105, the court shall impose

a determinate sentence, the length of which the court shall

determine, to the custody of the Department of Corrections.

Any mandatory minimum sentence otherwise provided by

Cite as 310 Or App 319 (2021) 321

law shall apply. The sentence shall not exceed the max-

imum sentence otherwise provided by law in such cases.

The convicted defendant who is subject to this section shall

not be eligible for probation. The convicted defendant shall

serve the entire sentence imposed by the court and shall

not, during the service of such a sentence, be eligible for

parole or any form of temporary leave from custody. The

person shall not be eligible for any reduction in sentence pur-

suant to ORS 421.120 or for any reduction in term of incar-

ceration pursuant to ORS 421.121.”

(Emphases added.)

First-degree burglary is one of the felonies described

in subsection (2), ORS 137.635(2)(h), i.e., it is a conviction

for which sentencing is subject to ORS 137.635(1) if the

defendant has a qualifying prior conviction. As for the two

statutes referenced in the last line of ORS 137.635(1), ORS

421.120 provides for reduction in sentence when an adult in

custody “faithfully has observed the rules of the institution,”

applies only to offenders sentenced for felonies committed

before November 1989, and is commonly called “good-time

credit.” See ORS 421.120(6); OAR 291-097-0270. Meanwhile,

ORS 421.121 provides for reduction in term of incarceration

based on “[a]ppropriate institutional behavior,” inter alia,

and is commonly called “earned-time credit.” See OAR 291-

097-0210(3). In this case, although the sentencing judgment

refers to “good time,” the parties agree that, in context, it

means earned-time credit under ORS 421.121. We proceed

accordingly.

Because of his criminal history, plaintiff’s first-

degree burglary sentence was subject to ORS 137.635, such

that plaintiff was required to serve the entire 60 months

of that sentence and, among other things, could not receive

earned-time credit on that sentence. That much is agreed

by everyone. The point of disagreement is whether, during

that 60 months, plaintiff could receive earned-time credit on

his concurrently served attempted-robbery and attempted-

assault sentences, even though he could not receive it on

his burglary sentence. In the superintendent’s view, ORS

137.635 applies to the person, not to the sentence, such that

a person serving a sentence subject to ORS 137.635 cannot

receive any earned-time credit for any purpose. Consistent

322 Samson v. Brown

with that view, for the first 60 months of plaintiff’s impris-

onment, the Department of Corrections (DOC) considered

plaintiff ineligible for any earned-time credit on any sen-

tence and did not begin counting earned time until the 61st

month of his imprisonment. At that point, by DOC calcu-

lations, plaintiff had served his entire attempted-robbery

sentence and half of his attempted-assault sentence. Thus,

in effect, DOC treated plaintiff as ineligible for any earned-

time credit on his attempted-robbery sentence and as eligi-

ble for earned-time credit on his attempted-assault sentence

only during the last 20 months of that sentence.

Plaintiff disagreed with DOC’s construction of ORS

137.635. He brought a habeas corpus claim, asserting that

he was wrongfully imprisoned due to DOC’s miscalcula-

tion of his earned-time credit on the attempted-robbery

and attempted-assault sentences. The thrust of plaintiff’s

argument was that, although ORS 137.635(1) precluded him

from receiving any earned-time credit on the burglary sen-

tence, it had no effect on his receiving earned-time credit

on the attempted-robbery and attempted-assault sentences.

In other words, in plaintiff’s view, ORS 137.635 applies to

the sentence, specifically the sentence that is subject to ORS

167.635, not to the person.

The trial court agreed with plaintiff, denying the

superintendent’s motion to dismiss, and granting plain-

tiff’s claim for relief. The court noted that the sentencing

judgment expressly provided for credit eligibility on the

attempted-robbery and attempted-assault sentences. As

for the statutory-construction issue, the court said, “ORS

137.635(1) explicitly states that it applies to sentencing on

repeat felonies listed in section (2). There is no mention in

this statute of its applicability to concurrent lesser sen-

tences. The legislature could clearly have so provided if it

chose.” Finally, the court agreed with plaintiff “that the sen-

tencing anomalies which would stem from [the superinten-

dent’s] interpretation make it untenable.”

The superintendent appeals, assigning error both to

the denial of her motion to dismiss the writ (which was func-

tionally equivalent to a summary judgment motion in this

context) and to the grant of plaintiff’s claim for relief. Both

Cite as 310 Or App 319 (2021) 323

assignments raise the same legal issue, which is the correct

construction of ORS 137.635(1), an issue of first impression

in this court.

ORS 137.635 was enacted by ballot initiative in

1988 and later amended by the legislature to include refer-

ence to ORS 421.121. The same “standard principles of stat-

utory construction” apply to statutes enacted by initiative

as to statutes (or amendments) enacted by the legislature.

State v. Allison, 143 Or App 241, 244, 923 P2d 1224, rev den,

143 Or App 241 (1996). That is, we examine the text of the

disputed provision, the statutory context, and any helpful

legislative history to determine the enactors’ intent. See

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

Unless the statute indicates otherwise, we assume that

words of common usage were intended to have their “plain,

natural, and ordinary meaning.” PGE v. Bureau of Labor

and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

The disputed portion of ORS 137.635(1) provides,

“The person shall not be eligible for any reduction in sen-

tence pursuant to ORS 421.120 or for any reduction in term

of incarceration pursuant to ORS 421.121.” Emphasizing

the words “person” and “term of incarceration,” the superin-

tendent argues that, under that provision, plaintiff was not

eligible for any earned time during the 60 months that he

was serving his burglary sentence, regardless of what other

sentences he was also serving during that time period.

We are unpersuaded. The “person” at issue is a per-

son serving a sentence that is subject to ORS 137.635. That

is undisputed. The question is whether the statute means

that such a person is ineligible for a reduction in term of

incarceration pursuant to ORS 421.121 on the sentence that

is subject to ORS 137.635 or, rather, is ineligible for a reduc-

tion in term of incarceration pursuant to ORS 421.121 on all

sentences that the person is serving.

Notably, the superintendent has been unable to

explain satisfactorily why, if the latter is the intended mean-

ing, the person’s ineligibility for reduction in term of incar-

ceration ceases when the sentence subject to ORS 137.635

has been fully served, even if other sentences remain to be

324 Samson v. Brown

served. Logically, if ineligibility is tied to the person gen-

erally and their term of incarceration generally, not the

specific sentence subject to ORS 137.635, the more natural

argument would be that a person imprisoned on multiple

convictions, at least one of which has a sentence subject to

ORS 137.635, is ineligible for any reduction in term of incar-

ceration pursuant to ORS 421.121 for the duration of their

incarceration, regardless of what sentence or sentences the

person is serving at any given time. Although taking a more

moderate position may have strategic benefits, it requires

the superintendent to argue for a rather difficult construc-

tion of the statute: one under which a person serving a sen-

tence that is subject to ORS 137.635 is ineligible for a reduc-

tion in term of incarceration pursuant to ORS 421.121 on all

sentences that the person is serving, until any sentences that

are subject to ORS 137.635 are fully served, at which point the

person becomes eligible for a reduction in term of incarcera-

tion pursuant to ORS 421.121 on any remaining sentences

that are not subject to ORS 137.635.

Putting aside that wrinkle, we agree with the trial

court that, in any event, the correct construction of ORS

137.635(1) is that a person serving a sentence subject to

ORS 137.635 is ineligible for a reduction in term of incar-

ceration pursuant to ORS 421.121 on that sentence. As both

parties recognize, ORS 137.635 does not expressly address a

concurrent-sentencing scenario, requiring us to discern the

intended scope of the statute. Doing so, we conclude that any

ambiguity in the wording of the disputed text is resolved by

its context and, to a lesser extent, legislative history.

We make two observations about the text and con-

text of ORS 137.635(1). The first is that the phrase “reduction

in term of incarceration” comes directly from ORS 421.121,

which provides for a “reduction in the term of incarceration”

in certain circumstances, and the parallel phrase “reduction

in sentence” derives directly from ORS 421.120, which pro-

vides for a “deduction from the term of sentence” in certain

circumstances. That undermines the superintendent’s sug-

gestion that the use of the phrase “term of incarceration” in

ORS 137.635(1) is meant to signal that ineligibility for ORS

421.121 credit goes beyond the “sentence” that is subject to

ORS 137.635 and extends to the entire incarceration term

Cite as 310 Or App 319 (2021) 325

(or at least the portion of the incarceration term until the

sentence subject to ORS 137.635 is fully served). In context,

“term of incarceration” is simply a reference to the terms of

ORS 421.121.

The second observation is that ORS 137.635(1) uses

“the sentence” when discussing the prison term imposed by

the court for the qualifying felony and uses “the convicted

defendant” or “the person” when discussing probation or

time credits that would cause the person to serve less time

in prison than the term imposed. The initial portion of the

statute addresses the sentence itself, including requiring

that the court impose a determinate sentence that does not

exceed the maximum sentence otherwise provided by law.

ORS 137.635(1). The remainder addresses probation and

credits. Specifically, “[t]he convicted defendant who is sub-

ject to this section shall not be eligible for probation.” Id.

Then, “[t]he convicted defendant shall serve the entire sen-

tence imposed by the court and shall not, during the ser-

vice of such a sentence, be eligible for parole or any form

of temporary leave from custody.” Id. Finally, “[t]he person

shall not be eligible for any reduction in sentence pursuant

to ORS 421.120 or for any reduction in term of incarceration

pursuant to ORS 421.121.” Id.

Reading ORS 137.635(1) as a whole, it is apparent

that each line is intended to address different aspects of the

sentence imposed on the convicted defendant for the felony

that is subject to ORS 137.635, towards the ultimate goal of

ensuring that the defendant is sentenced to a determinate

term in prison for that felony and serves every day of it. That

is perhaps most directly driven home by the introductory

language of ORS 137.635(1): “When, in the case of a felony

described in subsection (2) of this section, a court sentences

a convicted defendant who has previously been convicted of

any felony designated in subsection (2) of this section, * * *.”

(Emphasis added.) The rest of that line and the next two lines

require imposition of a prison term of determinate length

for the qualifying felony, while the subsequent lines cut off

access to anything that would allow the person to serve one

less day in prison than the imposed term. Thus, the most

plausible construction of ORS 137.635(1) is that it is directed

at the sentence imposed on a qualifying felony—and that it

326 Samson v. Brown

does not affect any concurrent sentences not subject to ORS

137.635 that a person may also be serving.

That construction is also consistent with the leg-

islative history. Most of the language of ORS 137.635(1)

dates back to the 1988 ballot measure, Ballot Measure 4

(1998), titled “REQUIRES FULL SENTENCES WITHOUT

PAROLE, PROBATION FOR CERTAIN REPEAT FELO-

NIES.”1 Official Voters’ Pamphlet, General Election, Nov 8,

1988, 17; see also Allison, 143 Or App at 251 (“In the case

of statutes enacted by initiative, the ‘legislative history’ of

the law includes statements contained in the voters’ pam-

phlet.”). The explanatory statement in the voters’ pamphlet

begins,

“Ballot Measure #4 changes the sentence certain repeat

felony offenders receive and must serve. Offenders sen-

tenced under Ballot Measure #4 must serve the full sen-

tence imposed by the court in the custody of the Department

of Corrections. Offenders are not eligible for parole, tempo-

rary leave or reduction in time for such reasons as good

behavior, prison employment or educational activity.

“Under Ballot Measure #4 a court can not grant proba-

tion, but must sentence the offender to a specific length of

time in prison. Ballot Measure #4 establishes no new min-

imum or maximum sentences.”

Voters’ Pamphlet at 18.

The measure’s sponsors, Oregonians Against

Crime, similarly described it as a “common sense” measure

that would require “two-time murderers, two-time rapists,

and two-time armed robbers [to] serve their full sentences

behind bars” without parole, probation, temporary leave,

or time off for good behavior. Id. Other statements both

in favor and against the measure also focused on repeat-

offender sentencing for “violent” felonies, arguing either

for or against requiring such sentences to be served in full.

Id. at 19-24. In other words, the legislative history shows

that the purpose of the 1988 measure was to ensure that,

for certain felonies, repeat offenders would fully serve their

imposed prison sentences for those felonies.

1

That measure has been referred to colloquially in older case law as the

“Denny Smith law.”

Cite as 310 Or App 319 (2021) 327

That is not the end of the matter with respect to

legislative history though. Although today’s ORS 137.635(1)

is largely identical to the initiative language, the one sen-

tence that has changed is the one at issue in this case. As

originally enacted, ORS 137.635 concluded, “The person

shall not be eligible for any reduction in sentence pursu-

ant to ORS 421.120.” ORS 137.635 (1989). That is not sur-

prising, because ORS 421.121 did not exist at the time—it

was enacted in 1989 when the sentencing guidelines were

enacted. See Or Laws 1989, ch 790, §§ 60, 61. In 1995, the

legislature amended ORS 137.635(1) to read, as it does now:

“The person shall not be eligible for any reduction in sen-

tence pursuant to ORS 421.120 or for any reduction in term

of incarceration pursuant to ORS 421.121.” Or Laws 1995,

ch 79, § 49 (emphasis added).

The little legislative history that exists regard-

ing that amendment indicates that it was understood as a

minor update to the statute. See Tape Recording, Senate

Committee on Judiciary, SB 851, Mar 14, 1995, Tape 54,

Side A (statement of Chief Deputy Legislative Counsel Chuck

Wilson) (describing SB 851 as “for the purpose of correcting

lots of erroneous material in Oregon Revised Statutes,” such

as “grammar, syntax, punctuation, obsolete provisions, and

internal references”; describing the amendments as “pretty

dry stuff”; and stating that “we think nothing in here is sub-

stantive”). By contrast, the superintendent’s proposed inter-

pretation would require it to be understood as significantly

changing the scope of ORS 137.635(1). Although the legis-

lative history is only minimally helpful, it does lend some

additional support to plaintiff’s construction.

For all of those reasons, we conclude that the dis-

puted portion of ORS 137.635(1)—regarding a person’s inel-

igibility “for any reduction in term of incarceration pursu-

ant to ORS 421.121,” i.e., earned-time credit, when serving

a determinate sentence on a qualifying felony—applies only

to the sentence on the qualifying felony. It does not apply

to a sentence that is not subject to ORS 137.635, even if

that sentence is served concurrently with a sentence that

is subject to ORS 137.635. If a person is serving prison time

on two sentences simultaneously, one of which is subject to

ORS 137.635 and one of which is not, then the earned-time

328 Samson v. Brown

prohibition in ORS 137.635 applies at all times to the sen-

tence that is subject to ORS 137.635, but it never applies to

the sentence that is not subject to ORS 137.635.

Having correctly construed the statute, the trial

court did not err when it denied the superintendent’s motion

to dismiss and granted plaintiff’s request for relief.

Affirmed.