State v. Rusen

677

Argued and submitted September 24, 2021, resubmitted January 25; decision

of Court of Appeals affirmed, judgment of circuit court reversed, and case

remanded to circuit court for further proceedings May 12, 2022

STATE OF OREGON,

Petitioner on Review,

v.

JONATHAN WILLIAM RUSEN,

Respondent on Review.

(CC 17CR12207) (CA A168201) (SC S068295)

509 P3d 628

Pursuant to a plea agreement, defendant pleaded no contest to four counts

of second-degree sexual abuse, and the state recommended a downward disposi-

tional sentence of probation. The parties agreed that, if the trial court revoked

defendant’s probation sentences, the trial court would have the authority to

impose consecutive terms of incarceration as probation revocation sanctions.

Defendant reserved the right, however, to argue that any probation revocation

sanctions should be run concurrently. The trial court followed that recommen-

dation and imposed concurrent terms of probation. The trial court later revoked

defendant’s probation based on a single violation and sentenced defendant to con-

secutive terms of incarceration for each of the four counts. Defendant appealed,

arguing that the consecutive sentences imposed by the trial court violated OAR

213-012-0040(2)(a), which requires concurrent probation revocation sanctions

where multiple terms of probation are revoked for a single violation. The state

argued that defendant’s sentence was not reviewable under ORS 138.105(9),

which bars appellate courts from reviewing “any part of a sentence resulting

from a stipulated sentencing agreement between the state and the defendant.”

The state further argued that the trial court had authority to impose consecutive

probation revocation sanctions under ORS 137.123(2), which authorizes consecu-

tive sentences for defendants whose multiple offenses “do not arise from the same

continuous and uninterrupted course of conduct.” The Court of Appeals reversed.

Held: (1) Defendant’s sentence was reviewable because ORS 138.105(9) does not

bar review of challenges to “part of a sentence” when the parties reserved the

right to make competing arguments regarding what the court should decide with

respect to that part of the sentence; (2) the consecutive sentences imposed by

the trial court violated OAR 213-012-0040(2)(a) and were not authorized by ORS

137.123(2), which applies only to the initial sentencing following conviction.

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

On review from the Court of Appeals.*

______________

* Appeal from Linn County Circuit Court, Thomas McHill, Judge. 307 Or

App 759, 479 P3d 318 (2020).

678 State v. Rusen

Timothy A. Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on review.

Also on the briefs were Ellen Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Anne Fujita Munsey, Deputy Defender, Salem, argued the

cause and filed the brief for respondent on review. Also on

the brief was Ernest G. Lannet, Chief Deputy Defender,

Office of Public Defense Services.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, and DeHoog, Justices.**

FLYNN, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case.

Cite as 369 Or 677 (2022) 679

FLYNN, J.

In the criminal case before us, defendant challenges

the trial court’s imposition of consecutive terms of incarcer-

ation upon revoking defendant’s probation. Defendant had

been serving the sentence of probation pursuant to a plea

agreement and had stipulated that, if the court revoked

his probation, the court could impose consecutive terms

of incarceration as sanctions. Defendant had reserved the

right, however, to argue that any probation revocation sanc-

tions should be run concurrently. The first question this

case presents is whether defendant is barred from obtaining

appellate review by ORS 138.105(9), which provides that an

“appellate court has no authority to review any part of a

sentence resulting from a stipulated sentencing agreement

between the state and the defendant.” The second question,

on the merits, is how to resolve an apparent conflict between

ORS 137.123(2), which generally authorizes consecutive sen-

tences for defendants—like this defendant—whose multiple

offenses “do not arise from the same continuous and unin-

terrupted course of conduct,” and OAR 213-012-0040(2)(a), a

sentencing guideline that restricts the ability of sentencing

judges to impose consecutive incarceration sanctions upon

revoking probation.

The Court of Appeals concluded that defendant’s

challenge to the revocation sanction was reviewable and,

on the merits, that the trial court lacked authority in this

case to impose consecutive terms of incarceration following

revocation of defendant’s probation. We allowed the state’s

petition for review and now affirm the decision of the Court

of Appeals on both questions.

On the procedural question, we conclude that the

legislature did not intend ORS 138.105(9) to bar review of

challenges to “part of a sentence” when the parties reserved

the right to make competing arguments regarding what the

court should decide with respect to that part of the sentence.

Accordingly, petitioner’s challenge to the court’s decision to

impose consecutive terms of incarceration is reviewable. On

the merits, we conclude that ORS 137.123(2) applies to ini-

tial sentencing and, therefore, is compatible with OAR 213-

012-0040(2)(a), which applies when a court revokes probation

680 State v. Rusen

and requires the court to impose concurrent incarceration

terms where, as here, probation is revoked based on a sin-

gle violation. We therefore affirm the decision of the Court

of Appeals, reverse the judgment of the trial court, and

remand for further proceedings.

I. BACKGROUND

In 2017, defendant pleaded no contest to four counts

of second-degree sexual abuse involving the same minor

victim. As part of the plea agreement, the state agreed to

dismiss six counts charging defendant with other sexual

offenses involving the same victim. The plea agreement

specified that the four counts to which defendant pleaded

guilty were committed on four different dates—i.e., not “the

same continuous and uninterrupted course of conduct,”

ORS 137.123(2)—and specified the applicable grid block

for each offense under the Oregon Sentencing Guidelines

(guidelines).1

Although each of the specified grid blocks carried a

presumptive sentence of incarceration that could amount to

a total of 122 months if run consecutively, the parties agreed

that the state would recommend that the court depart from

the presumptive sentences and impose, instead, three years

of supervised probation. At the sentencing hearing, defense

counsel also advised the court that, “if the Court revokes

probation,” defendant was “acknowledg[ing] * * * that the

State could ask for up to 122 months, but [ ] defendant would

* * * be free to ask that [the sentences] run concurrently.”

The prosecutor confirmed the agreement, explaining that,

in the event of revocation, “[i]t would be open sentencing

within those parameters.” The court characterized that

agreement to mean, “in the event of revocation on the down-

ward departure[,] that the Court could impose consecutive

sentences,” and the parties confirmed that characteriza-

tion. The court then followed the parties’ recommendation

1

We have previously explained that the guidelines include a “grid” used to

determine the presumptive sentence for an offense. To use the grid, the court

calculates and then locates the defendant’s “criminal history score” on the hor-

izontal axis of the grid and the “crime seriousness score” for the offense on the

vertical axis, and “the gridblock where those axes intersect contains the pre-

sumptive sentence for the defendant’s crime.” State v. Dulfu, 363 Or 647, 652, 426

P3d 641 (2018).

Cite as 369 Or 677 (2022) 681

and sentenced defendant to supervised probation on each

count, with the probation terms to be served concurrently.

The judgment of conviction included a term memorializing

the agreement regarding revocation: “The parties agree

that[,] should this probation be revoked, the convictions

on each count are eligible for consecutive sentences to be

imposed.”

The conditions of probation included that defendant

have no contact with the victim, except as specified in writ-

ing by the court or defendant’s probation officer. Less than

a year later, however, the state alleged that defendant had

violated the terms of his probation by having sexual inter-

course with the same victim. Defendant pleaded guilty to

a new charge of second-degree sexual abuse and conceded

that his contact with the victim had violated the terms of

probation. In light of defendant’s concession, the proba-

tion revocation hearing largely focused on an appropriate

sanction.

The state asked the court to impose consecutive terms

of incarceration, noting the parties’ agreement that, in the

event that defendant’s probation were revoked, the court

could impose consecutive sentences. Defendant empha-

sized, however, that he had reserved the right to argue

at the time of revocation that the court should not impose

consecutive sentences. He characterized the agreement as

merely acknowledging that, under certain circumstances,

the sentencing guidelines would authorize consecutive pro-

bation revocation sanctions, such as, for example, “if more

than one term of probationary supervision is revoked for

separate supervision violations.” OAR 213-012-0040(2)(b).

But, because defendant’s multiple terms of probationary

supervision were revoked for a single supervision violation,

defendant argued that the sentencing guidelines required

the trial court to impose the probation revocation sanctions

concurrently.2 See OAR 213-012-0040(2)(a) (“If more than

one term of probationary supervision is revoked for a single

supervision violation, the sentencing judge shall impose the

incarceration sanctions concurrently.”).

2

On review, the state does not argue that the trial court revoked defendant’s

multiple terms of probation based on more than one violation.

682 State v. Rusen

The trial court concluded that the parties’ agree-

ment that the court could impose consecutive probation

revocation sanctions meant that the court did not need to

consider whether the guidelines authorized consecutive sen-

tences under the circumstances. The court then announced

that it was revoking defendant’s probation on all counts,

imposing a term of incarceration for each count, and order-

ing the incarceration terms to be served consecutively—for

a total of 106 months’ incarceration.

Defendant appealed the revocation judgment and

assigned error to the trial court’s imposition of consecutive

terms of incarceration. State v. Rusen, 307 Or App 759, 760,

479 P3d 318 (2020). Although the state contended that the

consecutive incarceration terms were the product of “a stipu-

lated sentencing agreement,” and thus that ORS 138.105(9)

precluded review, the Court of Appeals rejected that argu-

ment. Id. at 760-61. The court reasoned that the parties’

agreement as to the issue of consecutive sentences was not

a “stipulated sentencing agreement” because it was not

“specific”—rather, it was an agreement that, “upon revo-

cation, the state could argue for consecutive sentences and

defendant could argue for concurrent ones.” Id. at 761.

On the merits, the Court of Appeals concluded

that, under OAR 213-012-0040(2)(a), the trial court erred

in imposing consecutive terms of incarceration as probation

revocation sanctions for a single violation of probation. In

reaching that result, the court rejected the state’s argu-

ment that the trial court had authority to impose consec-

utive sanctions under ORS 137.123(2). The court resolved

the apparent conflict between the provisions by holding that

ORS 137.123(2) governs a trial court’s authority to impose

consecutive terms of incarceration as an initial sentence,

while OAR 213-012-0040(2) governs the trial court’s author-

ity to impose consecutive terms of incarceration as a proba-

tion revocation sanction. Id. at 761-62.

The state petitioned this court for review, which we

allowed. State v. Rusen, 368 Or 168, 486 P3d 795 (2021).

II. ANALYSIS

The state contends that the decision of the Court

of Appeals is wrong for two alternative reasons. First, the

Cite as 369 Or 677 (2022) 683

state argues that defendant’s consecutive incarceration

sanctions are the product of “a stipulated sentencing agree-

ment” and, thus, that ORS 138.105(9) makes the sentences

unreviewable. Second, the state argues that the trial court

had authority to impose the consecutive terms of incarcera-

tion under ORS 137.123(2), because defendant’s underlying

offenses did “not arise from the same continuous and unin-

terrupted course of conduct,” and that OAR 213-012-0040(2)

does not limit that authority. We turn first to the issue of

reviewability. See State v. Kephart, 320 Or 433, 435 n 2,

887 P2d 774 (1994) (noting that, before reviewing whether

the trial court failed to comply with the law in imposing

a sentence, this court will “determine whether review is

permitted”).

A. Bar on Reviewability

1. Framework

The authority of the Court of Appeals, and of this

court, to review defendant’s sentence is governed by ORS

138.105. See ORS 138.105(1) (“On appeal by a defendant,

the appellate court has authority to review the judgment or

order being appealed, subject to the provisions of this sec-

tion.”). That statute authorizes appellate courts to review

a sentence “to determine whether the trial court failed to

comply with requirements of law in imposing or failing to

impose a sentence.” ORS 135.105(7).

The statutory authority to review sentences, how-

ever, is subject to exceptions. Id. At issue here is the excep-

tion set out in ORS 138.105(9), which provides:

“The appellate court has no authority to review any

part of a sentence resulting from a stipulated sentencing

agreement between the state and the defendant.”

As set out above, the parties had agreed that the

court “could impose consecutive sentences” in the event

that it revoked defendant’s probation, although defendant

reserved the right to argue against consecutive sentences.

According to the state, that agreement was a “stipulated sen-

tencing agreement” within the meaning of ORS 138.105(9),

and bars review of defendant’s challenge to the consecutive

terms of incarceration. Defendant responds with multiple

684 State v. Rusen

alternative arguments for why ORS 138.105(9) does not pre-

clude his challenge to the consecutive terms of incarcera-

tion, including that—as the Court of Appeals reasoned—the

sentence did not result from a “stipulated sentencing agree-

ment” because the parties’ agreement left defendant free to

argue that the court should not impose consecutive terms of

incarceration.3

The dispute in this case, therefore, centers on the

meaning of the phrase “any part of a sentence resulting

from a stipulated sentencing agreement,” as used in ORS

138.105(9). As with all questions of statutory construction,

our “paramount goal” is to discern the intent of the legis-

lature, and we pursue that goal by employing the analyt-

ical framework described in PGE v. Bureau of Labor and

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

in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Within

that framework, we focus on the text and context of the stat-

ute, and we consider legislative history that “appears useful

to the court’s analysis.” Id. at 172.

2. Text and context

The text on which we focus here is the product of

multiple legislative enactments. Although the legislature

enacted ORS 138.105(9) in 2017, the legislature enacted the

first iteration of that bar to reviewability in 1989, as part of

statutory changes to implement the sentencing guidelines.

Or Laws 1989, ch 790, § 21(2)(d), codified as former ORS

138.222(2)(d) (1989). In that first iteration, the provision

barred review of “[a]ny sentence resulting from an agree-

ment between the state and the defendant which the sen-

tencing court approves on the record.” Id. The legislature

amended the reviewability bar in 1993 so that—as now—it

precluded appellate review of sentences “resulting from a

stipulated sentencing agreement.” See Or Laws 1993, ch 698,

§ 1(2)(d), codified as former ORS 138.222(2)(d) (1993) (pre-

cluding appellate review of “[a]ny sentence resulting from

3

In addition to his statutory construction arguments, defendant contends

that the plea agreement was not a waiver of his right to challenge a sentence in

violation of the guidelines rule, and he argues that denying appellate review of

his sentences would violate state and federal constitutional provisions. Because

we agree with defendant that his sentence does not result from a “stipulated sen-

tencing agreement,” we do not address his other two arguments.

Cite as 369 Or 677 (2022) 685

a stipulated sentencing agreement between the state and

the defendant which the sentencing court approves on the

record”). Finally, the legislature in 2017 added the phrase

“any part of a sentence.” Or Laws 2017, ch 529, § 13(9). We

have previously construed both prior versions of the statute,

and our understanding of ORS 138.105(9) is significantly

informed by our prior constructions of its predecessors. See

State v. Cloutier, 351 Or 68, 100, 261 P3d 1234 (2011) (“Our

analysis of [the statute] is also informed by this court’s prior

construction of that statute or its predecessors.”); see also

Lindell v. Kalugin, 353 Or 338, 349, 297 P3d 1266 (2013)

(“Case law existing at the time of the adoption” of the rule or

statute “forms a part of the context.”).

This court first construed the reviewability bar

in State v. Adams, 315 Or 359, 367, 847 P2d 397 (1993), in

which we held that former ORS 138.222(2)(d) (1989)—when

applicable—precluded review of a component term of a sen-

tence to which the parties had specifically agreed. In Adams,

the defendant and the state had stipulated to a specific grid

block classification and to a sentence of 84 months’ incar-

ceration, which fell within the presumptive range for the

stipulated grid block. Id. at 363-64. The trial court imposed

a sentence that carried out those stipulations. Id. at 363.

Despite the stipulation, the defendant argued on appeal

that his criminal history score required the court to place

him in a lower grid block than that to which the parties

had stipulated. Id. at 364. In an attempt to get around the

reviewability bar of former ORS 138.222(2)(d) (1989), the

defendant argued that the provision should be understood

to preclude only challenges to the length of a sentence. Id. at

365. But this court in Adams rejected the defendant’s pro-

posed reading of the statute and concluded, instead, that

the statute precluded review of the trial court’s decision to

use the grid block classification to which the parties had

expressly stipulated. Id. at 366-67. Among other rationales,

the court explained that the defendant’s proposed reading

of the statute would “create an anomaly” in that the defen-

dant would receive the “full benefit” of his agreement with

the state (“the opportunity to plead to” a lesser offense),

“while the state would be deprived of its side of the bargain

(* * * the certainty of a stipulated sentence without the

686 State v. Rusen

need to prove that a departure sentence was warranted).”

Id.

Our decision in Adams did not address the stan-

dards for assessing whether a defendant has entered into

“an agreement” that would trigger the bar to review—then

set out in former ORS 138.222(2)(d) (1989). The defendant

had not denied that he had entered “an agreement” to which

the bar applied, and, therefore, Adams addressed only the

nature or scope of the applicable bar. By the time that this

court addressed the question whether an “agreement” is suf-

ficient to trigger the bar, the 1993 Legislative Assembly had

replaced “an agreement” with the current wording, which

precludes appellate review of a sentence resulting from “a

stipulated sentencing agreement.” See Or Laws 1993, ch 698,

§ 1(2)(d) (making that change to former ORS 138.222(2)(d));

ORS 138.105(9) (setting out current wording, under renum-

bered statute).

This court considered the meaning of the new term

“stipulated sentencing agreement” in Kephart, 320 Or 433,

and that decision is central to resolving the parties’ dispute

in this case. The defendant in Kephart entered into a plea

agreement with the state under which the defendant pleaded

guilty to numerous felony charges, all but one of which were

governed by the sentencing guidelines. Id. at 436-38. The

parties did not stipulate to grid blocks or to any other aspect

of the sentences for the individual offenses, but they agreed

that the parties would “seek and obtain approval by the

Court to limit the defendant’s exposure at sentencing” to a

total sentence of no more than 50 years for all offenses. Id. at

437. The trial court imposed a sentence that totaled exactly

50 years’ incarceration for all “guilty” counts combined. Id. at

439. The court had reached that total by using the guidelines

grid block method to determine the presumptive sentence for

each offense, but the court had calculated the applicable grid

blocks for each offense through a “then-controversial prac-

tice” of using some of the new convictions to increase the

defendant’s criminal history score. Id. The Court of Appeals

held that the sentence was not reviewable. Id.

On review, this court first concluded in Kephart that

the reviewability question was governed by the 1993 version

Cite as 369 Or 677 (2022) 687

of former ORS 138.222(2)(d), which made the bar applicable

only to a “stipulated sentencing agreement.” Id. at 440. This

court then concluded that the defendant’s agreement with

the state to the maximum total sentence had not constituted

a “stipulated sentencing agreement,” and therefore did not

preclude review of his challenge to the sentence. Id. at 447.

The opinion explains that, although the term “stipulated

sentencing agreement” is not statutorily defined, the statu-

tory text and context indicate that the legislature intended

to define “a narrower class of agreements.” Id. at 441.

For context, the court looked to another statute—

ORS 135.407—which “describes several ways in which the

state and a defendant may ‘stipulate’ to a sentence” that

is subject to the guidelines. Id. at 441-42. As this court

explained, ORS 135.407 specifies that the parties “may stip-

ulate to” various terms that make up a guidelines sentence:

The parties may stipulate to a defendant’s grid block classi-

fication “for the purpose of obtaining the presumptive sen-

tence under that grid block” (ORS 135.407(2)); the parties

may stipulate to “a specific sentence within the presump-

tive range” for the grid block classification (ORS 135.407(4));

and the parties may stipulate to a “sentence outside the pre-

sumptive sentence range”—a so-called “departure sentence”

(ORS 135.407(5)).4 Kephart, 320 Or at 442. As a result,

4

ORS 135.407 has not been amended since enacted in 1989. In its entirety,

ORS 135.407 provides:

“In cases arising from felonies committed on or after November 1, 1989:

“(1) Whenever a plea agreement is presented to the sentencing judge,

the defendant’s criminal history classification, as set forth in the rules of

the Oregon Criminal Justice Commission, shall be accurately represented to

the trial judge in the plea agreement. If a controversy exists as to whether a

prior conviction or juvenile adjudication should be included in the defendant’s

criminal history, or as to its classification under rules of the Oregon Criminal

Justice Commission, the district attorney and the defendant may stipulate to

the inclusion, exclusion or classification of the conviction or adjudication as

part of the plea agreement subject to approval of the court.

“(2) The district attorney and the defendant may stipulate to the grid

block classification within the sentencing guidelines grid established by the

rules of the Oregon Criminal Justice Commission that will provide the pre-

sumptive sentence range for the offender. The sentencing judge may accept

the stipulated classification and impose the presumptive sentence provided

in the rules of the Oregon Criminal Justice Commission for that grid block.

“(3) If the district attorney and the defendant stipulate to a grid block

classification within the sentencing guidelines grid, and the sentencing

688 State v. Rusen

the court concluded that the statutory context, “including

the examples of stipulated sentencing agreements in ORS

135.407, confirms that the legislature intended to narrow

the class of agreements that would preclude judicial review.”

Id. at 442.

The court in Kephart also analyzed the legislative

history of the bill that had proposed the amendment to

replace “agreement” with “stipulated sentencing agree-

ment” in former ORS 138.222(2)(d). From the legislative his-

tory, this court concluded “that the proponents intended the

amendment to permit appellate review of ‘illegal’ sentences,

unless the defendant agreed to that sentence ahead of time

as part of a ‘stipulated sentencing agreement.’ ” Id. at 445

(quoting Tape Recording, Senate Committee on Judiciary,

HB 2256, July 27, 1993, Tape 232, Side B (statement of Ross

Shepard)). The court explained that the bill to amend the

statute was proposed in “the waning days of the 1993 leg-

islative session” in response to a group of decisions that the

Court of Appeals had issued early in 1993. Id. at 443; see

also id. at 443-46 (citing and discussing State v. Johnston,

120 Or App 165, 851 P2d 1156 (1993), State v. Kilborn, 120

Or App 462, 852 P2d 935 (1993), and State v. Tanner, 121

Or App 104, 854 P2d 941 (1993)). Proponents of the bill from

both the Oregon Criminal Defense Lawyers Association

and the Oregon District Attorneys Association explained

that a “problem” had “recently arisen in a series of appel-

late cases” in which the Court of Appeals had broadly inter-

preted the kind of “agreement” that will bar reviewability,

that the interpretation would cause lawyers to avoid plea

judge accepts the stipulated classification but imposes a sentence other than

the presumptive sentence provided by rules of the Oregon Criminal Justice

Commission, the sentence is a departure sentence and is subject to rules of

the Oregon Criminal Justice Commission related to departures.

“(4) The district attorney and defendant may stipulate to a specific sen-

tence within the presumptive range provided by rules of the Oregon Criminal

Justice Commission for the stipulated offender classification. If the sentenc-

ing judge accepts the plea agreement, the judge shall impose the stipulated

sentence.

“(5) The district attorney and the defendant may stipulate to a sentence

outside the presumptive sentence range for a stipulated grid block classifica-

tion. The sentencing judge may accept an agreement for an optional proba-

tionary sentence or a departure sentence as provided in rules of the Oregon

Criminal Justice Commission.”

Cite as 369 Or 677 (2022) 689

agreements, and that the bill was intended to “reverse” that

“broad interpretation of the statute.” Kephart, 320 Or at

443-44 (internal quotation marks and citation omitted). The

holdings in the Court of Appeals cases were, thus, central

to this court’s understanding of what the legislature had

intended to accomplish by limiting the reviewability bar

of former ORS 138.222(2)(d) to sentences resulting from a

“stipulated sentencing agreement.” Id. at 445.

In the first Court of Appeals case, Johnston, the

defendant was convicted of three counts of first-degree rob-

bery pursuant to a plea agreement in which the parties

had stipulated to the grid block classification that the court

would use to calculate the sentence and had stipulated that

the state could recommend a maximum sentence of 108

months, which was a departure from the presumptive sen-

tence. 120 Or App at 167. The trial court imposed departure

sentences that totaled exactly 108 months, and the defen-

dant challenged the departures on appeal. Id. at 167. But

the Court of Appeals held that former ORS 138.222(2)(d)

(1989) barred review. Id. at 169. The Court of Appeals in

Johnston recognized that, because the parties’ agreement

did not preclude the defendant from trying “to persuade the

court to impose a sentence other than the one recommended

by the state,” it could “be argued that the defendant has

not ‘bargained’ for the actual sentence to be imposed.” Id. at

168. The court concluded, however, that the legislature had

intended former ORS 138.222(2)(d) (1989) to bar review of

that kind of “agreement.” Id. at 169. As this court concluded

in Kephart, the 1993 amendment to the statute “was drafted

to prevent such a result.” 320 Or at 446.

In Kilborn, the Court of Appeals relied on its deci-

sion in Johnston to conclude that the state could not obtain

review of the trial court’s imposition of a probationary sen-

tence, because the plea agreement had included the state’s

promise to make “no recommendations” as to the sentence.

120 Or App at 464 (internal quotation marks omitted). The

Court of Appeals recognized that the sentence of probation

was not “an agreed upon sentence,” but it concluded that the

sentence was unreviewable because the state’s “silence as

to” incarceration “was part of the bargain” that the parties

690 State v. Rusen

had reached. Id. As this court reasoned in Kephart, the

Court of Appeals in Kilborn had “completely ignored ORS

135.407” and had concluded that review was barred despite

the “lack of an agreed upon sentence.” 320 Or at 446-47

(internal quotation marks omitted). The “legislative history

of [former] ORS 138.222(2)(d) (1993),” this court concluded,

“tells us that the legislature intended to reverse the result.”

Id. at 447.

And in Tanner, the Court of Appeals held that it

lacked authority to review the defendant’s claim of an ille-

gal guidelines sentence because, “in exchange for the state’s

agreement not to indict” the defendant on uncharged fel-

onies, the defendant had agreed to a stipulated facts trial

and had agreed to admit to liability for both the charged

and uncharged felonies at sentencing, for purposes of setting

restitution. 121 Or App at 106. The Court of Appeals relied

on its decisions in both Johnston and Kilborn to conclude

that the defendant’s “sentence ‘resulted from’ the negotiated

agreement with the state and,” therefore, was not review-

able. Id. at 106-07. According to this court in Kephart, the

decision in Tanner illustrated the outcome that the legisla-

ture intended to prevent with the 1993 amendment to for-

mer ORS 138.222(2)(d). 320 Or at 447.

The 1993 legislative history also made clear, how-

ever, that the drafters of the 1993 amendment had intended

to preserve the result of this court’s decision in Adams. See

Kephart, 320 Or at 443-44 (quoting and citing statements

by representatives from both the Oregon Criminal Defense

Lawyers Association and the Oregon District Attorneys

Association). As described above, the defendant in Adams

had stipulated to both the grid block classification that the

court should use and to the specific sentence that the court

should choose from within the presumptive range for that

stipulated grid block, but he nevertheless sought to challenge

the grid block classification on appeal. 315 Or at 363-64.

This court had determined that former ORS 138.222(2)(d)

(1989) precluded review of the trial court’s decision to cal-

culate the defendant’s sentence using the grid block classi-

fication to which the parties had expressly stipulated. Id. at

366-67.

Cite as 369 Or 677 (2022) 691

Notably, both of the sentencing stipulations in Adams

were stipulations described in ORS 135.407—stipulations

as to grid block and as to the specific sentence within the

presumptive range for that grid block. ORS 135.407(2), (4).

By contrast, as this court reasoned in Kephart, the problem-

atic Court of Appeals cases had “strayed from the statutory

guidelines set out in ORS 135.407.” 320 Or at 445. And,

given the legislature’s intent to change the results of those

Court of Appeals cases, while also preserving the result in

Adams, this court in Kephart concluded that “the legisla-

ture intended [the 1993 amendments to the reviewability

statute] to allow review of sentences unless they were ‘stip-

ulated sentences’ as illustrated in ORS 135.407.” Id. at 447.

When the court then applied that understanding of “stipu-

lated sentencing agreement” to the plea agreement at issue

in Kephart—a stipulation to the maximum total sentence

length that the court could impose—this court readily con-

cluded that it was “not a stipulation as to sentencing of a kind

described by ORS 135.407 and, because it is not, [former]

ORS 138.222(2)(d) (1993) does not preclude review.” Id.

The same day that this court decided Kephart, it

decided a related case that provides some additional insight

into the boundaries of what constitutes a “stipulated sen-

tencing agreement” that will bar review. State v. Martin, 320

Or 448, 887 P2d 782 (1994). In Martin, the defendant had

pleaded no contest to first-degree sodomy and first-degree

sexual abuse, pursuant to a plea agreement. Id. at 450. As

part of the agreement, the parties stipulated to the crime

seriousness level that should be assigned to the offenses, but

they did not stipulate to the defendant’s criminal history

score. Id. At sentencing, the trial court employed the same

method to adjust the defendant’s criminal history score as

had the trial court in Kephart. Id. As in Kephart, the defen-

dant appealed to challenge the court’s calculation of his

criminal history score, and the Court of Appeals concluded

that the challenge was not reviewable. Id.

Although this court in Martin ultimately concluded

that the sentence was unreviewable under a different sub-

section of former ORS 138.222 (1993)—because it was a “ ‘sen-

tence that is within the presumptive sentence’ ”—this court

692 State v. Rusen

first addressed whether former ORS 138.222(2)(d) (1993)

barred review. Id. at 451 (quoting former ORS 138.222(2)(a)

(1993)). And we concluded that former ORS 138.222(2)(d)

(1993) did not bar review because, “[a]s in State v. Kephart,

this defendant cannot be said to have made a ‘stipulated sen-

tencing agreement’ as provided in [former] ORS 138.222(2)(d)

(1993). Defendant’s agreement does not comport with any

of the types of stipulations set out in ORS 135.407.” Id. at

450-51.

Our constructions of the reviewability bar in

Kephart and Martin, as well as subsequent decisions from

the Court of Appeals, inform our understanding of what

the legislature intended when it enacted the current bar to

review of “part of a sentence resulting from a stipulated sen-

tencing agreement,” ORS 138.105(9). See Lindell, 353 Or at

349 (explaining that “[c]ase law existing at the time of the

adoption” of the rule or statute “forms a part of the context”).

As explained above, the legislature adopted the current ver-

sion of the statute, which applies in this case, in 2017 when

it repealed former ORS 138.222(2)(d) (1993) and enacted

ORS 138.105(9) in its place. Or Laws 2017, ch 529, § 13(9).

The current bar to reviewability was part of a 2017 bill that

revised and reorganized the statutes governing criminal

appeals, Senate Bill 896 (2017). In addition to retaining the

wording that this court construed in Kephart and Martin,

the legislature made explicit that the statute bars review of

“any part of a sentence resulting from a stipulated sentenc-

ing agreement.” Or Laws 2017, ch 529, § 13(9), codified as

ORS 138.105(9) (emphasis added).

The history for the 2017 enactment indicates that

the legislature intended to “restate the limits on reviewabil-

ity currently set forth in [former] ORS 138.222(2)(d) [(1993)]”

and that the new emphasis on barring review of “any part of

a sentence” was “not intended to change current law.” Report

of the Direct Criminal Appeals Work Group on SB 896 (2017),

Oregon Law Commission, 21 (emphasis added). The existing

“limits on reviewability” in 2017 included those identified

by this court in Kephart and Martin, as well as those artic-

ulated in two decisions from the Court of Appeals, in which

that court had held that former ORS 138.222(2)(d) (1993) did

not “preclude review of a portion of a sentence that was not

Cite as 369 Or 677 (2022) 693

agreed to between the state and a defendant.” State v. Capri,

248 Or App 391, 395-96, 273 P3d 290 (2012) (citing State

v. Davis, 134 Or App 310, 314, 895 P2d 1374 (1995)). As a

work group explained to the legislature, “[t]he addition of

the phrase ‘any part of a’ before ‘sentence’ ” was added “to

make explicit the conclusion in State v. Capri * * * and State

v. Davis * * * that any portion of a sentence not agreed to

between the state and a defendant is reviewable.” Report of

the Direct Criminal Appeals Work Group on SB 896 (2017) at

21-22.

In light of the many indications of legislative intent

that we have explored above, we conclude that the scope of

the bar to appellate review—now set out in ORS 138.105(9)—

is limited in the way that this court described in Kephart

and Martin (and that the Court of Appeals later described

in Capri and Davis). The bar applies only when the par-

ties’ agreement is “a stipulation as to sentencing of a kind

described by ORS 135.407.” Kephart, 320 Or at 447.

Defendant argues that, at a minimum, Kephart’s

conclusion that “stipulated sentencing agreement” means

agreements “of a kind described by ORS 135.407” excludes

agreements that address how the court could decide a sen-

tencing issue but leave the parties free to attempt to per-

suade the court how it should decide the sentencing issue—

like the parties’ agreement in Kephart that the trial court

could impose a total sentence of up to 50 years but that the

defendant could argue for a shorter total sentence. And

defendant contends that, similarly, the agreement here

regarding the issue of consecutive sentences is at most an

agreement that the trial court could impose consecutive sen-

tences, leaving defendant free to argue that the court should

not impose consecutive sentences.

Defendant’s framing accurately reflects our conclu-

sion and analysis in Kephart, which made clear that the bar

on reviewability applies only if “certain specific stipulations,

like those in ORS 135.407, are made.” 320 Or at 446 (empha-

sis added).5 All the stipulations described in ORS 135.407

5

Defendant alternatively proposes that a “stipulated sentencing agreement”

should be understood as limited to the stipulations expressly listed in ORS

135.407, none of which mention consecutive or concurrent terms. He believes

694 State v. Rusen

that are highlighted in Kephart—stipulations as to grid

block classification, as to a sentence within the presumptive

range, and as to a departure sentence—are stipulations to a

specific decision that the court should make in calculating a

sentence; none describes agreements that leave open—and

subject to competing argument—what the court ultimately

should decide. Defendant’s framing also accurately reflects

our conclusion in Kephart that the legislature intended to

prevent the result of cases like Johnston, in which the Court

of Appeals held that the parties’ agreement that the state

could recommend a maximum total sentence precluded

review of a claim that the court violated the guidelines

in imposing that total sentence. Kephart, 320 Or at 446;

Johnston, 120 Or App at 169.

The state disagrees with that scope. According to

the state, because the parties’ agreement is an agreement

“regarding” the issue of consecutive or concurrent sentences,

the agreement is a “stipulated sentencing agreement,” bar-

ring review of the court’s decision to impose consecutive

terms. This court, however, rejected such a broad interpre-

tation of “stipulated sentencing agreement” in Kephart and

Martin. As those cases demonstrate, not all agreements

with stipulations “regarding” sentencing are “stipulated

sentencing agreements” for purposes of precluding appellate

review. In Kephart, for example, the parties stipulated that

the trial court could impose a total sentence of 50 years,

and the court sentenced the defendant to a total of 50 years.

320 Or at 439. But that agreement did not preclude appel-

late review of whether the court correctly calculated the

defendant’s criminal history score—as part of calculating

the total sentence of 50 years—because the agreement that

the court could impose a particular total sentence was “not

a stipulation as to sentencing of a kind described by ORS

135.407.” Id. at 447.

that that meaning is more consistent with our conclusion in Kephart, although

the Court of Appeals has held otherwise. See, e.g., State v. Upton, 132 Or App

579, 889 P2d 376 (1995) (concluding that ORS 135.407 is merely represen-

tative of the class of stipulations that bar review under ORS 138.105(9)). But

there is no need to determine in this case whether the stipulations identi-

fied in ORS 135.407 are illustrative, or definitive, of the type of “stipulated

sentencing agreement” that will bar review, and we decline to resolve that

question.

Cite as 369 Or 677 (2022) 695

Although the state emphasizes that a sentencing

judge is not bound to accept even the stipulations described

in ORS 135.407, that argument misses the point. When a

trial court accepts the parties’ stipulation to a specific sen-

tence, or to a specific grid block that the court should use

to calculate a sentence, it is resolving that sentencing issue

exactly how the parties have agreed the court should resolve

that issue, and the legislature has determined that there is

no role for judicial review of that agreed-upon part of the

sentence. But when the parties merely agree on parameters

for how the court could decide a sentencing issue, leaving

room for the parties to argue about how the court should

decide the issue, then, however the court ultimately decides

the issue, the parties will not have agreed in advance to that

sentence.

We emphasize that reviewability is only a thresh-

old issue. Agreements that do not meet the test that we

have articulated for a “stipulated sentencing agreement”

might still create obstacles to a successful appellate chal-

lenge, possibly including lack of preservation, estoppel, or

invited error, but those obstacles do not trigger the absolute

bar to appellate review that is imposed by ORS 138.105(9).6

We conclude that construing ORS 138.105(9) to permit

review of sentencing decisions to which the parties did not

specifically agree in advance is consistent with what this

court repeatedly emphasized in Kephart to be the intent of

the proponents of the “stipulated sentencing agreement”

requirement: “to permit appellate review of ‘illegal’ sen-

tences, unless the defendant agreed to that sentence ahead

of time[.]” 320 Or at 445 (emphasis added). At a minimum,

ORS 138.105(9) precludes review of a sentencing challenge

only when two conditions are met. First, the parties must

have agreed to a specific sentence, or to a specific component

that the court used to calculate the sentence—such as the

6

The Kilborn case decided by the Court of Appeals may be a good illustration

of the difference between reviewability and other bars to a successful appellate

challenge. The state’s agreement to remain “silent” when the court imposed a

sentence of probation would present a classic preservation obstacle to challeng-

ing the ruling on appeal. But the legislature did not intend to bar review of that

challenge. See Kephart, 320 Or at 447 (concluding that the “legislative history of

[former] ORS 138.222(2)(d) (1993) tells us that the legislature intended to reverse

the result” of Kilborn).

696 State v. Rusen

grid block classification. Second, the bar applies to preclude

review only of the part of the sentence on which the parties

agreed.

3. The parties’ agreement

Those conclusions make clear that the pertinent

inquiry here must focus on the parties’ agreement with

respect to consecutive incarceration terms—because that is

the part of the sentence for which defendant seeks review.

As noted earlier, the parties agreed as part of defendant’s

plea agreement that, if the court later revoked defendant’s

probation, “the court could impose consecutive sentences.”

In other words, and importantly, the parties did not agree

that defendant would receive consecutive sentences. Instead,

as the Court of Appeals described the nature of the agree-

ment, they agreed that “the state could argue for consec-

utive sentences and defendant could argue for concurrent

ones,” and resolution of any dispute would be left to the trial

court. Rusen, 307 Or App at 761. That lack of specificity with

respect to that term of the sentence, the Court of Appeals

concluded, meant that there was no “stipulated sentencing

agreement” that barred review of the consecutive sentences.

Id.

We agree with that conclusion. In this case, the

parties agreed that the trial court could impose consecu-

tive terms of incarceration as probation revocation sanc-

tions. But they also agreed that defendant would be free to

argue that the court should not impose consecutive terms of

incarceration, leaving resolution of that issue to the court.

As a result, the court’s ruling regarding the issue of consec-

utive or concurrent incarceration terms is not the product

of a “stipulated sentencing agreement,” and ORS 138.105(9)

does not bar review of defendant’s challenge to that part of

the sentence.

B. The Court’s Authority to Impose Consecutive Sentences

Having determined that defendant’s sentence is

reviewable, we now consider the parties’ arguments regard-

ing whether the trial court properly imposed consecutive

terms of incarceration upon revoking defendant’s probation.

As noted above, the trial court initially sentenced defendant

Cite as 369 Or 677 (2022) 697

to four concurrent terms of probation for separate offenses

committed on different days. The trial court revoked those

terms of probation based on a single probation violation and

imposed consecutive terms of incarceration as probation

revocation sanctions. Under those facts, the merits question

is whether the trial court had authority to impose consec-

utive terms of incarceration or, instead, was required to

impose concurrent terms of incarceration.

Probation revocation sanctions are generally gov-

erned by the sentencing guidelines rules, which were first

drafted by the Criminal Justice Commission, adopted by the

State Sentencing Guidelines Board, and then approved by

the legislature in 1989. As a result, they have the force of

statute. See 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.”). “For

defendants sentenced for felonies committed on or after

November 1, 1989,” a trial court imposing probation revo-

cation sanctions is directed to the guidelines rules by ORS

137.545(5)(b), which provides that “the court that imposed

the probationary sentence may revoke probation supervi-

sion and impose a sanction as provided by rules of the Oregon

Criminal Justice Commission.” (Emphasis added.)7

Among those rules is OAR 213-012-0040(2), which

addresses both how to calculate the length of probation revo-

cation sanctions where the defendant is serving multiple

terms of probation and whether the trial court may impose

those sanctions concurrently or consecutively:

“(2) When an offender is serving multiple terms of pro-

bationary supervision, the sentencing judge may impose

revocation sanctions for supervision violations as provided

by OAR 213-010-0002 for the violation of each separate

term of probationary supervision.

“(a) If more than one term of probationary super-

vision is revoked for a single supervision violation, the

7

There is an exception to ORS 137.545(5)(b)—not applicable to the offenses

of which defendant was convicted—under which “the court shall revoke” proba-

tion if a defendant who was sentenced to probation commits a new crime. ORS

137.712(5).

698 State v. Rusen

sentencing judge shall impose the incarceration sanctions

concurrently.

“(b) If more than one term of probationary supervision

is revoked for separate supervision violations, the sentenc-

ing judge may impose the incarceration sanctions concur-

rently or consecutively.”

Here, there is no dispute that the trial court prop-

erly calculated the length of defendant’s probation revoca-

tion sanctions. But defendant maintains that the trial court

violated paragraph (2)(a) in requiring defendant to serve

those sentences consecutively. According to defendant, a

trial court has the discretion to impose consecutive revoca-

tion sanctions only if, as specified in paragraph (2)(b), the

trial court revokes the terms of probation based on separate

probation violations. Because the state does not dispute that

the trial court revoked defendant’s four terms of probation

based on a single probation violation, defendant contends

that the trial court erred in imposing the incarceration

terms consecutively.

The state points to a potential conflict between

OAR 213-012-0040(2)(a) and a different provision that, it

contends, authorized the court to impose consecutive sen-

tences. Specifically, the state relies on OAR 213-012-0010,

which provides that, “[w]hen multiple convictions have been

entered against a single defendant, the sentencing judge

may impose consecutive or concurrent sentences as provided

by ORS 137.123 and 137.370.” In turn, ORS 137.123(2) pro-

vides that a court may impose either concurrent or consecu-

tive sentences “[i]f a defendant is simultaneously sentenced

for criminal offenses that do not arise from the same con-

tinuous and uninterrupted course of conduct.” In this case,

because defendant does not dispute that his underlying con-

victions did “not arise from the same continuous and unin-

terrupted course of conduct,” the state maintains that OAR

213-012-0010 (with its incorporation of ORS 137.123(2)) gave

the trial court the discretion to impose either concurrent or

consecutive sentences as probation revocation sanctions.8

8

In its briefing to this court, the state argues that ORS 137.123(2) directly

applied to authorize the trial court’s imposition of consecutive probation revo-

cation sanctions. The state, as a result, presents an argument about the scope

of ORS 137.123(2) based on State v. Lane, 357 Or 619, 355 P3d 914 (2015). In

Cite as 369 Or 677 (2022) 699

We have previously emphasized that, when multiple

statutory provisions potentially conflict, “if the court can give

full effect to both statutes, it will do so.” Powers v. Quigley,

345 Or 432, 438, 198 P3d 919 (2008); see also ORS 174.010

(specifying that, “where there are several provisions or par-

ticulars such construction is, if possible, to be adopted as will

give effect to all”). The state proposes that we can harmonize

the potentially conflicting provisions regarding consecutive

sentences by understanding both as giving the court alter-

native sources of authority to impose consecutive sentences

upon revocation of probation—“either because the defendant

committed the crimes during separate criminal episodes

(ORS 137.123(2)) or because he committed more than one vio-

lation of probation.” (Emphasis added.) But the state’s pro-

posal would require us to construe the provisions in ways

that the text, context, and legislative history do not support.

The state first proposes that ORS 137.545(5)(b)—

which provides that the court “may revoke probation supervi-

sion and impose a sanction as provided by [the guidelines]”—

does not require a trial court to follow the guidelines when

imposing a probation revocation sanction. The state’s inter-

pretation assumes that the provision’s use of “may” applies

independently to the two clauses that follow: (1) revoke pro-

bation supervision and (2) impose a sanction as provided by

rules of the Oregon Criminal Justice Commission. Thus,

the state reads the provision to provide that, upon finding

a probation violation, the trial court may or may not revoke

probation, and, if the trial court revokes probation, then the

trial court may or may not impose a sanction as provided by

the sentencing guidelines rules.

The state’s reading is not required by the text of

ORS 137.545(5)(b) and is inconsistent with the provision’s

Lane, this court interpreted Article I, section 44(1)(b), of the Oregon Constitution,

which provides that “[n]o law shall limit a court’s authority to sentence a crimi-

nal defendant consecutively for crimes against different victims,” as applying to

probation revocation sanctions. The state argues that both the constitutional pro-

vision from Lane and ORS 137.123(2) were enacted by ballot initiative and should

be given similarly broad readings. However, as we just explained, the imposition

of probation revocation sanctions is governed by the sentencing rules. So, to the

extent that ORS 137.123(2) applies at all, it would apply only through OAR 213-

012-0010. The application of ORS 137.123(2) is therefore determined by the scope

of OAR 213-012-0010, which we address below.

700 State v. Rusen

legislative history. The text does not make clear whether

“may” gives the court discretion only with respect to the

issue of revoking probation or also with respect to whether to

follow the guidelines in the event of revocation. But it is clear

from the legislative history that the legislature intended to

authorize discretion only with respect to whether to revoke

probation. The legislature originally adopted a version of

that provision as part of the statutes to implement the sen-

tencing guidelines in 1989. That revocation provision stated

that, upon finding a probation violation, the trial court

“shall revoke probation supervision and impose a sanc-

tion as provided by rules of the Oregon Criminal Justice

Commission.” Or Laws 1989, ch 790, § 17(4)(b), codified as

former ORS 137.550(4)(b) (1989) (emphasis added). Although

the legislature amended the provision in the next session

to change “shall” to “may,” the legislative history of that

amendment indicates that the legislature did not intend to

make a substantive change to the requirement that, upon

revocation, the court shall “impose a sanction as provided by

[the guidelines].” Testimony in support of the 1991 amend-

ment indicates that changing “shall” to “may” was, instead,

intended to ensure that judges retained their presentencing

guidelines discretion regarding whether to revoke proba-

tion, reflecting a recognition that not all probation violations

warrant revocation. See Tape Recording, Senate Committee

on Judiciary, SB 620, Feb 18, 1991, Tape 34, Side A (state-

ment of Erik Wasmann) (“[J]udges should have the discre-

tion to decide whether or not to revoke probation. It’s not

something that we want to mandate.”); Tape Recording,

House Committee on Judiciary, Subcommittee on Crime

and Corrections, SB 620, Apr 24, 1991, Tape 65, Side A

(statement of David Foster) (noting that change from “shall”

to “may” makes “clear that the revocation of probation is

discretionary to the sentencing judge rather than manda-

tory”). There is no indication that the change to “may” was

intended to provide trial courts with authority to impose

sanctions outside the sentencing guidelines rules in the

event that they exercised discretion and revoked probation.

Thus, under ORS 137.545(5)(b), upon finding a pro-

bation violation, a trial court may decide to revoke proba-

tion and impose a sanction as provided by the sentencing

Cite as 369 Or 677 (2022) 701

guidelines rules, or the trial court may decide to not revoke

probation and not impose a sanction as provided by the sen-

tencing guidelines rules. But the provision does not autho-

rize a trial court to revoke probation and impose a sanction

other than those provided by the sentencing guidelines rules.

In combination with OAR 213-012-0040(2), the “sentencing

judge shall impose” concurrent terms of incarceration in the

event that it revokes more than one term of probation based

on “a single supervision violation”—as here. See Doyle v. City

of Medford, 347 Or 564, 570, 227 P3d 683 (2010) (“Ordinarily,

use of the word ‘shall’ implies that the legislature intended to

create an obligation[.]”). Indeed, this court repeatedly empha-

sized the mandatory nature of OAR 213-012-0040(2)(a)

in State v. Lane, 357 Or 619, 355 P3d 914 (2015). See id.

at 621 (“Oregon’s sentencing guidelines provide that, if a

defendant with multiple terms of probation commits a sin-

gle probation violation, any resulting terms of incarceration

must be imposed concurrently, not consecutively.” (Citing

OAR 213-012-0040(2)(a) (emphasis added).)); id. at 639 (“In

this case, because OAR 213-012-0040(2)(a) limited the trial

court’s authority to sentence defendant consecutively for his

crimes against different victims, Article I, section 44(1)(b),

invalidated it.” (Emphasis added.)).

The state also proposes that OAR 213-012-0010 and

OAR 213-012-0040(2)(a) can be harmonized by understand-

ing the former as governing the imposition of consecutive

terms whenever the underlying offenses were separate-

episode crimes, while understanding the latter to govern

the imposition of multiple probation revocation sanctions

in cases where the underlying offenses were single-episode

crimes. Here again, however, the state’s proposal would

require us to ascribe a meaning that we conclude the legis-

lature did not intend.

The state acknowledges that there is no textual

basis for limiting OAR 213-012-0040(2)(a) to single-episode

crimes and does not purport to offer one. Limiting OAR

213-012-0040(2)(a)’s requirement for concurrent probation

revocation sanctions to single-episode crimes would require

inserting what has been omitted, a path that we seek to

avoid in the construction of statutes. See ORS 174.010 (“In

702 State v. Rusen

the construction of a statute, the office of a judge is simply

to ascertain and declare what is, in terms or in substance,

contained therein, not to insert what has been omitted or to

omit what has been inserted[.]”).

The state, nevertheless, contends that this court’s

decision in State v. Miller, 317 Or 297, 855 P2d 1093 (1993),

provides grounds for limiting OAR 213-012-0040(2)(a). In

Miller, this court held that a sentencing rule capping the

aggregate length of consecutive sentences to “twice the max-

imum presumptive incarceration term of the primary sen-

tence,” OAR 253-12-020(2)(b) (1990), should be applied only

to single-episode crimes. 317 Or at 307. The court reached

that result after noting that the sentencing guidelines rules

were drafted before ORS 132.560 was amended to allow

crimes committed in separate episodes to be joined in a sin-

gle indictment. Id. at 303. The court also relied on exam-

ples from the Sentencing Guidelines Implementation Manual

(1989), as context, to confirm that the sentencing rule was

intended to apply to single-episode crimes. Id. at 304-05.

Nothing in Miller, however, states that all the orig-

inal sentencing guidelines rules—drafted and approved in

1989—should be assumed to apply only to single-episode

crimes. After all, the bill amending the standards for joinder

and the bill approving the sentencing guidelines rules were

adopted in the same legislative session and went through

the same committees. See id. at 305 (“Discussion in the

legislative history of both of those bills indicates that the

relevant committee of the legislature was, while discussing

HB 2250 [(the sentencing guidelines bill)], aware of HB 2251

[(the liberal joinder bill)] and of its relation to the subject

of HB 2250.”). And the state in this case cites no examples

from the Sentencing Guidelines Implementation Manual,

like those that the court relied on in Miller, to establish

that OAR 213-012-0040(2)(a) was intended to apply only to

single-episode crimes. We therefore decline the state’s invi-

tation to extend the reasoning of Miller to this case, and we

decline the state’s invitation to harmonize the apparently

conflicting provisions by treating the requirement of consec-

utive terms in OAR 213-012-0040(2) as either optional or

entirely inapplicable.

Cite as 369 Or 677 (2022) 703

We are persuaded, however, that the provisions can

be harmonized in a different way. We conclude that OAR

213-012-0010 and OAR 213-012-0040(2) should be under-

stood as addressing different stages of sentencing: the for-

mer rule applies to initial sentencing immediately follow-

ing the convictions, while the latter rule refers to probation

revocation proceedings.

That honors the text of OAR 213-012-0040(2),

which expressly governs probation revocation sanctions.

Subsection (2) governs how trial courts calculate the length

of the sanctions. Paragraphs (2)(a) and (2)(b) govern when

trial courts may impose those sanctions concurrently or con-

secutively. If multiple terms of probation are revoked for a

single violation, then the trial court must impose the sanc-

tions concurrently. OAR 213-012-0040(2)(a).9 But if multiple

terms of probation are revoked for separate violations, then

the sanctions may be imposed either concurrently or consec-

utively. OAR 213-012-0040(2)(b).

Conversely, OAR 213-012-0010 contains no similar

express text requiring its application to probation revoca-

tion sanctions. As noted above, OAR 213-012-0010 provides

that, “[w]hen multiple convictions have been entered against

a single defendant, the sentencing judge may impose consec-

utive or concurrent sentences as provided by ORS 137.123

and 137.370.” That failure to refer to probation revocation

proceedings is particularly significant in the context of OAR

213-012-0040(2), given that both rules were adopted by the

State Sentencing Guidelines Board at the same time and

approved by the legislature at the same time. See, e.g., State

v. Klein, 352 Or 302, 309, 283 P3d 350 (2012) (a statute’s

context includes “related statutes”). The context provided

by OAR 213-012-0040(2) suggests that OAR 213-012-0010

is intended to govern the imposition of concurrent or con-

secutive sentences upon the trial court entering multiple

convictions—that is, at the initial sentencing following the

9

The requirement of concurrent sanctions under OAR 213-012-0040(2)(a)

is subject to the constitutional limit identified in Lane. See 357 Or at 639 (invali-

dating the application of OAR 213-012-0040(2)(a) where it conflicts with Article I,

section 44(1)(b), of the Oregon Constitution, which provides that “[n]o law shall

limit a court’s authority to sentence a criminal defendant consecutively for crimes

against different victims”).

704 State v. Rusen

convictions—while OAR 213-012-0040(2)(a) and (b) are

intended to govern the imposition of concurrent or consecu-

tive sanctions upon probation revocation.

Interpreting OAR 213-012-0010 as governing the

initial sentence following conviction and OAR 213-012-

0040(2) as governing probation revocation sanctions recon-

ciles the two provisions and gives meaning to the text of

both. See Lane County v. LCDC, 325 Or 569, 578, 942 P2d

278 (1997) (“[W]e do not look at one subsection of a statute in

a vacuum; rather, we construe each part together with the

other parts in an attempt to produce a harmonious whole.”).

And it is the same interpretation that has been applied by

the Court of Appeals for decades. See State v. Stokes, 133 Or

App 355, 358, 891 P2d 13 (1995) (interpreting OAR 213-012-

0010 as governing initial sentencing and interpreting OAR

213-012-0040 as governing probation revocation).

We therefore reject the state’s argument that the

trial court’s imposition of consecutive probation revocation

sanctions is authorized by OAR 213-012-0010. Rather, as

defendant has argued, the imposition of consecutive proba-

tion revocation sanctions violates the requirement of OAR

213-012-0040(2)(a) that the court impose concurrent sanc-

tions where multiple terms of probation have been revoked

for a single violation.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.