State v. Logston

No. 32 July 31, 2025 101

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

JOHN W. LOGSTON,

Petitioner on Review.

(CC 17CR60498) (CA A179285) (SC S070960)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 14, 2024.

Joshua B. Crowther, Deputy Public Defender, Oregon

Public Defense Commission, Salem, argued the cause and

filed the briefs for petitioner on review. Also on the briefs

was Ernest G. Lannet, Chief Defender, Criminal Appellate

Section.

Timothy Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

GARRETT, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Duncan, J., concurred and filed an opinion.

Bushong, J., concurred and filed an opinion, in which

James, and Masih, JJ., joined.

______________

* Appeal from Lake County Circuit Court, David M. Vandenberg, Judge. 331

Or App 191 (2024) (nonprecedential memorandum opinion).

102 State v. Logston

Cite as 374 Or 101 (2025) 103

GARRETT, J.

This criminal case requires us to decide whether

a trial court, after revoking a defendant’s probation, has

authority to impose a term of incarceration that is consecu-

tive to a prison sentence imposed by another court in a dif-

ferent criminal case involving a different victim. The trial

court concluded that it had the authority to impose a consec-

utive sentence under those circumstances and did so. The

Court of Appeals affirmed. State v. Logston, 331 Or App 191

(2024) (nonprecedential memorandum opinion).

On review, defendant contends that the sentencing

guidelines rules that govern a trial court’s revocation of pro-

bation make no provision for ordering a prison term to run

consecutively to a previously imposed sentence in another

case. The state does not dispute that the guidelines specifi-

cally provide no such authority, but it makes two alternative

contentions. First, the guidelines authorized the trial court

to proceed in accordance with ORS 137.123, which generally

sets out the circumstances in which consecutive sentences

are allowed and specifically permits them for crimes against

different victims. Second, and in all events, the trial court’s

action was authorized under Article I, section 44(1)(b), of the

Oregon Constitution, which states that “[n]o law shall limit

a court’s authority to sentence a criminal defendant consec-

utively for crimes against different victims.”

The parties’ arguments thus implicate both stat-

utory and constitutional questions. Ordinarily, we would

address the statutory arguments first. See, e.g., Rico-

Villalobos v. Giusto, 339 Or 197, 205, 118 P3d 246 (2005)

(“[I]f statutory sources of law provide a complete answer to

[a] legal question that a case presents, we ordinarily decide

the case on that basis, rather than turning to constitutional

provisions.”); see also State v. Turnidge (S059156), 359 Or

507, 515 n 3, 373 P3d 138 (2016), cert den, 580 US 1021 (2017)

(“That is a prudential rule, however, and it is not appropri-

ate in every case.”).

We choose a different approach in this case, because

we conclude, as did the Court of Appeals, that the constitu-

tional question is resolved by this court’s decision in State

104 State v. Logston

v. Lane, 357 Or 619, 355 P3d 914 (2015). In Lane, this court

held that Article I, section 44(1)(b), superseded the sentenc-

ing guidelines to the extent that they would have prevented

a trial court from imposing consecutive sentences as a pro-

bation revocation sanction in a case with multiple victims.

Id. at 638-39. The present case differs only in that the trial

court ordered a sentence to run consecutively to one imposed

by a different court in a different case. As we will explain,

that factual difference provides no cognizable basis on which

to distinguish Lane. Accordingly, we affirm the decision of

the Court of Appeals and the judgment of the trial court.

I. BACKGROUND

The facts are procedural, undisputed, and taken

from the trial court record and the parties’ arguments on

review. Defendant pleaded guilty in Lake County Circuit

Court to charges of attempted possession of heroin and

unlawful use of a vehicle (UUV) belonging to a named vic-

tim, Lindsey. Under the sentencing guidelines, the presump-

tive sentence for the UUV offense was a prison sentence, but

the trial court imposed a departure sentence of 24 months’

supervised probation in accordance with the terms of the

plea agreement.1 That agreement and the judgment that

the trial court subsequently entered after accepting defen-

dant’s plea included defendant’s stipulation that he would

serve an 18-month prison term if the court ever revoked his

probation.

While he was on probation, defendant was involved

in a serious automobile accident in Jefferson County, for

which a grand jury indicted him on two counts of second-

degree assault, one count of third-degree assault, two counts

of failure to perform the duties of a driver (FPDD) when a

person is injured, and one count of felony fleeing or attempt-

ing to elude a police officer. The occupants of the other vehi-

cle involved in the accident were two individuals named

Meriwether. Pursuant to a plea agreement, defendant

pleaded guilty to the two FPDD counts, and the Jefferson

County Circuit Court dismissed the other charges. That

1

The trial court imposed a concurrent 18-month sentence of probation on

the attempted possession of heroin charge, which was the presumptive sentence

under the sentencing guidelines for that charge.

Cite as 374 Or 101 (2025) 105

court sentenced defendant to serve 45 months in prison on

one FPDD count and 30 months in prison on the other, with

the sentences to run consecutively to each other, for a total

sentence of 75 months in prison.

Based in part on the Jefferson County convictions,

the Lake County court then revoked defendant’s probation in

the UUV case and imposed the 18-month term of imprison-

ment that had been part of the original plea agreement and

judgment.2 The state asked the court to make that term con-

secutive to the Jefferson County prison sentences, citing ORS

137.123(2) (court may impose a consecutive sentence “if the

defendant previously was sentenced by any other court within

the United States to a sentence which the defendant has not

yet completed”). Defendant objected, contending that the stat-

ute and sentencing guidelines rules, as construed by this court

in State v. Rusen, 369 Or 677, 509 P3d 628 (2022), precluded

the trial court from imposing consecutive sentences.

The trial court disagreed with defendant and

imposed the 18-month term of incarceration consecutive to

the Jefferson County sentences. Defendant appealed. The

Court of Appeals affirmed in a nonprecedential per curiam

opinion, summarily citing this court’s decision in Lane.

Logston, 331 Or App at 191. We allowed defendant’s petition

for review.

II. DISCUSSION

A. Article I, section 44, of the Oregon Constitution and

State v. Lane

Article I, section 44, was added to the Oregon

Constitution in 1999 by the voters’ passage of Ballot Measure

74 (1999), upon referral from the legislature. The text pro-

vides, in part:

“(1)(a) A term of imprisonment imposed by a judge

in open court may not be set aside or otherwise not car-

ried out, except as authorized by the sentencing court or

through the subsequent exercise of:

2

The Lake County supplemental probation revocation judgment also revoked

defendant’s concurrent probation on the attempted possession of heroin charge

and imposed a 90-day term of incarceration concurrent to the 18-month sentence

on the UUV charge.

106 State v. Logston

“(A) The power of the Governor to grant reprieves,

commutations and pardons; or

“(B) Judicial authority to grant appellate or post-

conviction relief.

“(b) No law shall limit a court’s authority to sentence a

criminal defendant consecutively for crimes against different

victims.”

(Emphasis added.)

In Lane, the defendant had argued that Article I,

section 44(1)(b), which refers to a court’s authority to “sen-

tence,” was inapplicable to a trial court’s imposition of a pro-

bation revocation “sanction,” which the defendant argued was

legally distinct from a “sentence.” 357 Or at 625. According

to the defendant, Oregon statutes and regulations revealed

an unambiguous distinction between imposing a sentence

for a crime and imposing a sanction upon the revocation of

probation. Id. at 627-28.

In addressing the defendant’s arguments, we exam-

ined the historical context of Article I, section 44(1)(b),

including the statutes and regulations that existed in 1999.

Id. at 627. Contrary to the defendant’s arguments, we did

not “find such a clear distinction in the relevant statutes

and regulations.” Id. at 628. Instead, we noted that “a num-

ber of statutes describe the penalties for a probation viola-

tion as a ‘sanction,’ ” id., but “other statutes and rules * * *

refer to the imposition of a sanction for probation violations

as ‘sentencing,’ ” id. at 629. Thus, we thought that the vot-

ers who adopted Article I, section 44(1)(b), would not have

understood that there was “a well-established and ‘unam-

biguous’ distinction between imposing probation revocation

sanctions and sentencing.” Id. at 631. Rather, “the text in

context along with its enactment history reveal[ed] that

the voters most likely understood that the prohibition in

Article I, section 44(1)(b)—that no law may limit a court’s

authority to impose consecutive sentences for crimes against

multiple victims—applies to the imposition of probation vio-

lation sanctions.” Id. at 638.

We went on to explain:

Cite as 374 Or 101 (2025) 107

“In reaching that conclusion, we emphasize that

Article I, section 44(1)(b), does not necessarily require the

imposition of consecutive sentences when there are multi-

ple victims. By its terms it forecloses any other law from

limiting a court’s authority to impose such sentencing

where there are multiple victims.

“In this case, because OAR 213-012-0040(2)(a) [(the

same sentencing guidelines rule on which defendant relies

in this case)] limited the trial court’s authority to sentence

defendant consecutively for his crimes against different

victims, Article I, section 44(1)(b), invalidated it. The trial

court thus did not err in concluding that it has authority to

impose consecutive sentences.”

Id. at 638-39 (emphases in original). We will discuss Lane’s

reasoning in greater detail below, in addressing defendant’s

arguments on review.

B. Analysis

Defendant contends that, upon revoking his proba-

tion, the Lake County court had no authority to impose a

term of incarceration that was consecutive to the Jefferson

County sentences. That argument proceeds in several steps.

First, defendant observes that, as this court explained in

Rusen, 369 Or 677, Oregon’s sentencing scheme contemplates

two distinct pathways for imposing a term of imprisonment:

a sentence that is imposed when a person is convicted of a

crime, or a sanction that is imposed upon revocation of pro-

bation pursuant to ORS 137.545(5)(b). This case concerns

the second pathway.

Second, defendant contends, a probation revoca-

tion sanction under ORS 137.545(5)(b) is governed by the

sentencing guidelines rules, which have the force of stat-

ute. 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.” (Citing Or

Laws 1989, ch 790, § 87.)).

Third, defendant continues, the sentencing guide-

lines provide for a consecutive prison term as a probation

revocation sanction in only one circumstance: where a trial

108 State v. Logston

court revokes multiple terms of probationary supervision

based on multiple violations. OAR 213-012-0040(2)(b).

Fourth, defendant concludes, because the trial court

in this case revoked only a single term of supervision based

on defendant’s single violation, OAR 213-012-0040(2)(b) was

inapplicable to his probation revocation proceeding, and no

other rule allowed the trial court to order his incarceration

sanction to run consecutively to a prison sentence that he

was serving in a different case.

In sum, defendant argues that the sentencing

guidelines provide the exclusive source of authority govern-

ing the trial court’s revocation of defendant’s probation and

that, because they make no provision for a sentence to run

consecutively to an existing sentence in another case, the

court lacked authority to order a consecutive sentence.

The state disagrees with defendant’s view of the rele-

vant statutes and sentencing guidelines, and it contends that

Rusen should essentially be limited to its facts. But the state

further argues that those arguments are beside the point

because, to the extent that any statute or guideline prevented

the trial court from ordering a consecutive sentence here,

that law is trumped by Article I, section 44, of the Oregon

Constitution, as construed by this court in Lane. We agree

with the state that Lane substantially resolves this case,

with the benefit of additional explanation provided below.

In Lane, as noted above, the defendant had argued

that Article I, section 44(1)(b), was inapplicable to his pro-

bation revocation proceeding because it addressed only a

court’s authority to impose a “sentence” and not the author-

ity to impose a “sanction” for revocation of probation. 357

Or at 625. We rejected that argument, concluding that the

provision “applies to the imposition of probation violation

sanctions.” Id. at 638. And, as noted above, we concluded by

explaining that, “because OAR 213-012-0040(2)(a) limited

the trial court’s authority to sentence [the] defendant con-

secutively for his crimes against different victims, Article I,

section 44(1)(b), invalidated it. The trial court thus did not

err in concluding that it has authority to impose consecutive

sentences.” Id. at 639.

Cite as 374 Or 101 (2025) 109

Two principles follow directly from Lane. First, a

probation revocation sanction is a “sentence” for purposes

of Article I, section 44(1)(b); thus, under that provision, “no

law” can limit the authority of a court, having revoked pro-

bation, to impose a consecutive term of incarceration “where

there are multiple victims.” 357 Or at 638. Second, to the

extent that OAR 213-012-0040(2) would restrict a court’s

authority to impose a consecutive term, it yields to Article I,

section 44(1)(b), if there are multiple victims.

In this case, the Lake County court revoked defen-

dant’s probation for the UUV offense, for which Lindsey

was the victim. Defendant was serving an existing term

of incarceration for his convictions in the Jefferson County

case involving the Meriwethers. Under Article I, section

44(1)(b), as construed in Lane, because defendant’s offenses

involved multiple victims, “no law” could limit the Lake

County court’s authority to impose a prison term consecu-

tive to the term defendant was already serving.3

In arguing to the contrary, defendant contends that

Article I, section 44(1)(b), prohibits only laws limiting a trial

court’s existing authority; as worded, that provision does not

purport to grant authority to a court to impose consecutive

sentences. As defendant puts it, “[t]he provision presupposes

a scenario where the court has been given authority to impose

consecutive sentences and limits the legislature’s authority

to roll back that authority when there are multiple victims.”

Defendant bases that argument on the premise that the leg-

islature must provide a positive grant of authority for a court

to punish a criminal defendant. See, e.g., State v. Leathers,

271 Or 236, 240, 531 P2d 901 (1975) (“A sentence must be in

3

The state contends that consecutive sentences are permitted under

Article I, section 44(1)(b), if an individual is the victim of one offense and “the

state” is the victim of another offense. In support, the state relies on Article I,

section 44(3) (“As used in this section, ‘victim’ means any person determined

by the prosecuting attorney to have suffered direct financial, psychological or

physical harm as a result of a crime and, in the case of a victim who is a minor,

the legal guardian of the minor. In the event no person has been determined to

be a victim of the crime, the people of Oregon, represented by the prosecuting

attorney, are considered to be the victims.”). However, as we have noted, defen-

dant’s offenses involved different individual victims. Nor does defendant dispute

that his convictions involved separate victims for purposes of Article I, section

44(1)(b). Accordingly, it is unnecessary to decide whether the state may also be a

separate victim for purposes of Article I, section 44(1)(b).

110 State v. Logston

conformity with the governing statute; any non-conforming

sentence is void for lack of authority and thus totally without

legal effect.”). Here, defendant reasons, no legislative grant

of authority allows a trial court to impose, as a probation

revocation sanction, a term of imprisonment consecutively

to a sentence in another case, so Article I, section 44(1)(b), is

inapplicable. The state disagrees with that argument, rea-

soning that Lane establishes that the Lake County court’s

order was properly grounded in either its inherent authority,

Article I, section 44(1)(b), or both.

The fundamental problem with defendant’s argu-

ment is that it is inconsistent with this court’s analysis

in Lane. In that case, this court explained that, because

OAR 213-012-0040(2)(a) “limited the trial court’s author-

ity to sentence [the] defendant consecutively for his crimes

against different victims,” it was “invalidated” by Article I,

section 44(1)(b). 357 Or at 639. It followed that the trial

court “ha[d] authority to impose consecutive sentences.”

Id. (emphasis added). This court’s conclusion that the trial

court in Lane “ha[d] authority” followed directly from our

explanation that Article I, section 44(1)(b), “invalidated” any

law purporting to “limit” such authority. We saw no need to

go further, as defendant would have us do here, to determine

whether some other statute or guidelines rule provided an

express grant of authority to impose consecutive sentences

for offenses involving multiple victims.4

We acknowledge defendant’s argument that, in the

most literal sense, Article I, section 44(1)(b), does not seem

to actively confer authority so much as it prohibits laws

that “limit” a court’s existing authority. But this court in

Lane was equally aware of that premise, yet it concluded

that the trial court “has authority” to impose a consecu-

tive sentence, despite identifying no positive grant of legis-

lative authority that covered the factual circumstances in

that case. Defendant has not argued that Lane’s reasoning

4

Defendant seeks to distinguish Lane by arguing that this court, in that

case, located “existing authority under the guidelines to impose multiple revoca-

tion sanctions consecutively” and that, because such authority existed, Article I,

section 44(1)(b), invalidated any statute or rule that restricted it. But defendant

does not further explain that contention, and, as we have explained, Lane did not

identify any positive source of authority, either in statute or in the guidelines, for

imposing consecutive sentences.

Cite as 374 Or 101 (2025) 111

was incorrect or incomplete. In that case, this court seem-

ingly understood Article I, section 44(1)(b), as a recognition

or declaration by the voters that courts have the authority,

which the legislature may not limit, to impose consecutive

sentences for crimes involving multiple victims. The failure

to phrase that constitutional provision more explicitly as an

affirmative grant was no impediment to our conclusion. As

we explain below, the phrasing may simply reflect the histor-

ical understanding that, as a matter of inherent authority,

courts possessed the discretion to choose between concur-

rent and consecutive sentences when a defendant commit-

ted legally distinct offenses. Lane did not discuss that his-

tory but is consistent with it. We now take this opportunity

to make clear what was implicit in Lane and, we think, nec-

essary to this court’s holding in that case.

As the United States Supreme Court has explained,

the common-law rule, still followed by a majority of states,

was to “entrust to judges’ unfettered discretion the decision

whether sentences for discrete offenses shall be served con-

secutively or concurrently.” Oregon v. Ice, 555 US 160, 163,

129 S Ct 711, 172 L Ed 2d 517 (2009); see also id. at 168-69

(citing Arthur W. Campbell, Law of Sentencing § 9:22, 425 (3d

ed 2004) (“Firmly rooted in common law is the principle that

the selection of either concurrent or consecutive sentences

rests within the discretion of sentencing judges.”)); Criminal

Law, 21A Am Jur 2d § 808, 23 (2016) (“It has been held that

a court has power derived from the common law to impose

cumulative or consecutive sentences * * *. * * * [U]nless

there is a statute to the contrary, it is within the trial court’s

sound discretion to determine whether a sentence should run

concurrently with or consecutively to another sentence[.]”).

Older Oregon cases reflect that historical under-

standing. In State v. Jones, 250 Or 59, 440 P2d 371 (1968),

this court considered the trial court’s imposition of a sen-

tence consecutive to another sentence imposed in an ear-

lier case. At the time, no statute specifically authorized the

imposition of consecutive sentences. Former ORS 137.160

(1959) had previously done so, but, in 1961, the legislature

repealed that statute, Or Laws 1961, ch 520, § 1. Jones,

250 Or at 60. That action had been taken in response to a

112 State v. Logston

report from an interim legislative committee that had rec-

ommended repealing the statute (because of a concern about

some of its wording) and replacing it with a different one

that still authorized either concurrent or consecutive sen-

tences. Id. at 60-61. Although the legislature repealed the

existing statute, it did not enact a replacement. Id. at 61.

This court did not view that omission as a barrier to the

imposition of a consecutive sentence:

“[W]e feel certain that the legislature was aware that

permissive legislation was not necessary. It is an inher-

ent power of the court to impose sentences, including the

choice of concurrent or consecutive terms when the occa-

sion demands it. Accordingly, the legislature would have

recognized that no legislation was needed to authorize the

courts to exercise a power already in existence to impose

either consecutive or concurrent sentences.”

Id. (citations omitted); see also Trahan v. Cupp, 8 Or App

466, 468-69, 493 P2d 1391 (1972) (citing Jones and other

cases for the proposition that “trial courts in Oregon have

inherent discretionary power to impose concurrent or con-

secutive sentences”).

Some states, including Oregon, have departed from

the common-law model by statutorily curtailing a court’s

discretion to impose consecutive sentences. Ice, 555 US at

163-64 (describing various state approaches, including

Oregon’s). In 1986, Oregon voters enacted what is now ORS

137.123, which provides that sentences are presumed to be

concurrent, unless the judgment expressly provides other-

wise, and that consecutive sentences may be imposed only

as provided in that statute. ORS 137.123(1); see State v. Soto,

372 Or 561, 584-86, 551 P3d 893 (2024) (describing history

of statute’s enactment). That statute further specifies that

consecutive sentences are permitted when a defendant is

“simultaneously sentenced for criminal offenses that do not

arise from the same continuous and uninterrupted course of

conduct, or if the defendant previously was sentenced by any

other court within the United States to a sentence which

the defendant has not yet completed,” ORS 137.123(2), and

that a consecutive sentence is required when a defendant

is sentenced while incarcerated after being sentenced for a

previous crime, ORS 137.123(3).

Cite as 374 Or 101 (2025) 113

ORS 137.123 also addresses what sentencing courts

may do when a defendant is convicted of more than one

offense arising from a “continuous and uninterrupted course

of conduct.” In such cases, sentences “shall be concurrent,”

ORS 137.123(4), unless the court makes one of the findings

described in subsection (5). That subsection provides:

“The court has discretion to impose consecutive terms

of imprisonment for separate convictions arising out of a

continuous and uninterrupted course of conduct only if the

court finds:

“(a) That the criminal offense for which a consecutive

sentence is contemplated was not merely an incidental vio-

lation of a separate statutory provision in the course of the

commission of a more serious crime but rather was an indi-

cation of defendant’s willingness to commit more than one

criminal offense; or

“(b) The criminal offense for which a consecutive sen-

tence is contemplated caused or created a risk of causing

greater or qualitatively different loss, injury or harm to the

victim or caused or created a risk of causing loss, injury or

harm to a different victim than was caused or threatened by

the other offense or offenses committed during a continuous

and uninterrupted course of conduct.”

(Emphasis added.) Thus, the statute provides that, even

where multiple convictions arise from a continuous and

uninterrupted course of conduct, such that concurrent sen-

tences would ordinarily be required, consecutive sentences

are still authorized where multiple victims were involved.

That policy choice is consistent with the common-law rule

that offenses against different victims were considered

legally distinct even when arising from the same act, a rule

reflected elsewhere in Oregon’s criminal statutes. See, e.g.,

ORS 131.505(3) (“When the same conduct or criminal epi-

sode, though violating only one statutory provision, results

in death, injury, loss or other consequences of two or more

victims, and the result is an element of the offense defined,

there are as many offenses as there are victims.”).

In sum, Oregon law has historically recognized the

common-law authority of a trial court to choose between

concurrent and consecutive sentences for legally distinct

114 State v. Logston

offenses. That inherent authority can be and has been cir-

cumscribed by legislative action in Oregon and in other

states, as recounted in Ice. In Oregon, ORS 137.123 gener-

ally lays out the circumstances in which consecutive sen-

tences may be imposed. Those include situations in which

a defendant’s offense or offenses affected multiple victims.

ORS 137.123(5)(b).

With that context, we return to the 1999 passage

of Measure 74, which added Article I, section 44(1)(b), to

the Oregon Constitution. As we discussed in Lane, that

provision appears to have had its origins as a reaction in

part to OAR 213-012-0040(2), the rule discussed above that

does not allow a trial court to impose consecutive sentences

as a probation revocation sanction unless the defendant

is serving multiple terms of supervision and has commit-

ted multiple violations. Lane, 357 Or at 635. That history

helps explain why the text of what became Article I, section

44(1)(b), was phrased in the negative, as a prohibition on

legislative restriction of a court’s authority to impose consec-

utive sentences where there are multiple victims. Defendant

may be correct that the text could more clearly reflect an

intention to confer authority. But the drafters’ decision not

to phrase the text in that manner is readily understandable

against the historical backdrop discussed above. Although

the relevant adoption history is “scant,” as we said in Lane,

it seems likely that the drafters would not have regarded

themselves as conferring authority so much as undoing a

legislative incursion on the inherent authority that courts

historically possessed, as recognized by this court in Jones.

The drafters also would have been aware of ORS 137.123(5),

which, as discussed above, does specifically authorize con-

secutive sentences for multiple victims. That provides addi-

tional reason to think that the drafters would not have

thought it necessary to confer authority so much as to make

it clear that legislative restrictions on such authority were

prohibited.

Defendant acknowledges Jones but argues that

it should be limited to its “facts”; he contends that, “if the

legislature abolished the Oregon Revised Code or repealed

those statutes or rules covering a specific area, this court’s

Cite as 374 Or 101 (2025) 115

inherent authority might fill in the gaps.” But that is essen-

tially what Article I, section 44(1)(b), as construed in Lane,

accomplished. By adopting that provision, voters declared

that existing and prospective legislative restrictions on a

court’s authority to impose consecutive sentences for mul-

tiple victims were prohibited. The effect of constitution-

ally prohibiting such restrictions, understood in historical

context, was to restore the authority that courts possessed

before the legislature curtailed it.

III. CONCLUSION

In sum, Article I, section 44(1)(b), superseded the appli-

cable sentencing guidelines rule, OAR 213-012-0040(2)(b),

to the extent that that rule prevented imposition of a con-

secutive sentence in defendant’s Lake County probation

revocation proceeding, when he also had been sentenced

in Jefferson County for crimes involving other victims. The

Lake County court therefore did not err when it imposed

a term of incarceration in defendant’s probation revocation

proceeding to run consecutively to his Jefferson County

sentences.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

DUNCAN, J., concurring.

The issue in this case is whether the trial court

erred when it ordered defendant to serve his probation revo-

cation sanction in a Lake County case consecutively to a

sentence that defendant had just received for a conviction

in a Jefferson County case. Defendant has argued that the

trial court did not have authority to impose the consecu-

tive sanction. In response, the state has argued that the

trial court had authority to impose the consecutive sanc-

tion under both a statutory provision, ORS 137.123, and a

constitutional provision, Article I, section 44(1)(b), of the

Oregon Constitution.

The majority concludes that the trial court had

constitutional authority to impose the consecutive sanction

under Article I, section 44(1)(b). 374 Or at 109. The major-

ity does not address whether the trial court had statutory

116 State v. Logston

authority, explaining that, even though “[o]rdinarily, [this

court] would address the statutory arguments first,” it is

appropriate to resolve this case based on the constitution,

because “the constitutional question is resolved by this

court’s decision in State v. Lane, 357 Or 619, 355 P3d 914

(2015).” 374 Or at 103-04. I agree with the majority’s con-

clusion that the trial court had the authority to impose the

consecutive sanction under Article I, section 44(1)(b). I also

agree with the majority’s conclusion that it is appropriate

to resolve this case based on the constitution. I write sepa-

rately only to address Justice Bushong’s concurrence.

His concurrence takes the position that we should

resolve this case based on the state’s statutory argument

and that we should hold that ORS 137.123 applies directly

to probation revocation sanctions. 374 Or at 127, 140-42

(Bushong, J., concurring). As I will explain in greater detail

below, this court has already rejected the position that ORS

137.123 applies directly to probation revocation sanctions.

We did so in State v. Rusen, 369 Or 677, 509 P3d 628 (2022),

relying on a statute, ORS 137.545(5)(b), which provides that,

when a trial court revokes a defendant’s probation for a

crime that is subject to the felony sentencing guidelines, the

court may impose a sanction “as provided by” the guidelines

rules. Specifically, ORS 137.545(5)(b) provides:

“For defendants sentenced for felonies committed on

or after November 1, 1989 [‘guidelines crimes’], the court

that imposed the probationary sentence may revoke pro-

bation supervision and impose a sanction as provided by

rules of the Oregon Criminal Justice Commission [‘guide-

lines rules’].”

(Emphasis added.) Given the plain text of ORS 137.545(5)(b),

we held that, for guidelines crimes, the only way that ORS

137.123 could apply to probation revocation sanctions would

be if a guidelines rule that applied to such sanctions incor-

porated it. Rusen, 369 Or at 700-01. In other words, we held

that the only way that ORS 137.123 could apply to such

sanctions is if it applied indirectly, that is, through a guide-

lines rule. Id. We then reviewed the guidelines rules and

concluded that the rule that governs probation revocation

sanctions is OAR 213-012-0040, which does not incorporate

Cite as 374 Or 101 (2025) 117

ORS 137.123. Id. at 703-04. Therefore, we rejected the state’s

argument that ORS 137.123 applies to probation revocation

sanctions, either directly or indirectly.

Despite ORS 137.545(5)(b) and Rusen, Justice

Bushong’s concurrence would have this court hold that

ORS 137.123 applies directly to probation revocation sanc-

tions. 374 Or at 127, 140-42 (Bushong, J., concurring). As

his concurrence acknowledges, doing so would require

us to overrule Rusen’s holding that ORS 137.123 does not

apply directly to probation revocation sanctions. Id. But

no party in this case has asked this court to overrule

that holding, much less undertaken the effort necessary

to establish that we should overrule it. See Farmers Ins.

Co. v. Mowry, 350 Or 686, 692, 261 P3d 1 (2011) (“[T]he

principle of stare decisis dictates that this court should

assume that its fully considered prior cases are correctly

decided. Put another way, the principle of stare decisis

means that the party seeking to change a precedent must

assume responsibility for affirmatively persuading us that

we should abandon that precedent.” (Internal quotation

marks omitted.)).

I write separately to explain the statutes that govern

consecutive sentences and probation revocation sanctions,

the sentencing guidelines, and Rusen. As I will explain, I

believe that Rusen correctly held that ORS 137.123 does not

apply directly to probation revocation sanctions, and, even if

one were to disagree with Rusen, the requirements for over-

ruling it have not been met.

I begin with a comment about terminology. This

case involves custody imposed as a consequence of the revo-

cation of defendant’s probation. As this court has observed,

sometimes such custody is referred to as a “sanction” and

sometimes it is referred to as a “sentence.” Lane, 357 Or at

628-32. There are many laws that relate to custody, includ-

ing constitutional provisions, statutes, and administrative

rules. Those laws can relate to custody imposed immedi-

ately upon conviction, custody imposed following revoca-

tion of probation, or both. The laws are not always precise

about the type or types of custody they relate to. Many of the

laws were created at different times, for different purposes,

118 State v. Logston

and by different entities. Consequently, when determining

whether, for example, the term “sentence” in a particular

law was intended to encompass custody imposed upon the

revocation of a defendant’s probation, we must ascertain the

intent of the entity that created the particular law, be it the

voters, the legislature, or an administrative agency. See,

e.g., Lane, 357 Or at 624-39 (applying approach). In doing so,

we must focus on the text of the particular law, in context,

and the law’s history. Id. We cannot assume that all refer-

ences to a “sentence” encompass custody imposed upon the

revocation of a defendant’s probation.

In this opinion, to be clear about the type of cus-

tody I am referring to, I use the term “probation revocation

sanction” to refer to custody imposed upon the revocation

of a defendant’s probation. I use the term “initial sentence”

to refer to custody imposed immediately following a defen-

dant’s conviction.

Because this case involves a probation revocation

sanction for a crime that is subject to the felony sentencing

guidelines, it is important to understand how statutes that

govern sentences interact with the guidelines. The guide-

lines were first approved by the legislature in 1989 and

apply to felonies committed on or after November 1, 1989.

Or Laws 1989, ch 790, § 6(1), codified as ORS 137.010(1)

(1989) (stating applicability of guidelines). The guidelines

do not apply to felonies committed before that date or to

misdemeanors. Consequently, even with the adoption of

the guidelines, there was a need to retain preguidelines

sentencing statutes. As discussed below, the guidelines

drafters were aware of those statutes, and, when they

wanted to incorporate them into the guidelines, they did

so.

As mentioned, Justice Bushong’s concurrence would

hold that ORS 137.123 applies directly to probation revoca-

tion sanctions for guidelines crimes. 374 Or at 127, 140-42

(Bushong, J., concurring). ORS 137.123 is a preguidelines

statute; it was adopted by initiative in 1986, three years

before the sentencing guidelines. See State v. Soto, 372 Or

561, 584, 551 P3d 893 (2024) (discussing history of ORS

137.123). Under ORS 137.123, concurrent sentences are the

Cite as 374 Or 101 (2025) 119

default. ORS 137.123(1) (“The court may provide for consec-

utive sentences only in accordance with the provisions of

this section. A sentence shall be deemed to be a concurrent

term unless the judgment expressly provides for consecu-

tive sentences.”). A court can impose a consecutive sentence

only in certain circumstances. ORS 137.123(2) - (4) (identi-

fying circumstances). One of the circumstances in which a

court can impose consecutive sentences is if the defendant’s

crimes of conviction “do not arise from the same continuous

or uninterrupted course of conduct.” ORS 137.123(2). But, if

the defendant’s crimes of conviction do arise from the same

continuous and uninterrupted course of conduct, then the

defendant’s sentences “shall be concurrent,” unless the court

makes certain findings. ORS 137.123(4), (5).

When ORS 137.123 was enacted, probation itself

was not a “sentence.” State v. Stevens, 253 Or 563, 565, 456

P2d 494 (1969). Instead, a court that placed defendant on

probation either (1) suspended the imposition of the defen-

dant’s sentence or (2) imposed a sentence but suspended its

execution. Id. If the defendant’s probation was later revoked,

the defendant would begin serving their “sentence.” Id.

In 1989, the legislature approved the sentencing

guidelines, through the enactment of House Bill (HB) 2250.

Or Laws 1989, ch 790. The sentencing guidelines were the

product of a multiyear process and resulted in a “signifi-

cant change in Oregon’s criminal justice system.” Oregon

Sentencing Guidelines Implementation Manual 1 (1989)

(Implementation Manual). As mentioned, the guidelines

apply only to felonies committed on or after November 1,

1989. For those crimes, the guidelines establish presumptive

sentences, including presumptive probation sentences and

presumptive prison sentences. The guidelines changed the

nature of probation; they made probation itself a sentence.

As the Implementation Manual explains, “[u]nder the guide-

lines system, a sentence of probation is the sentence imposed

by the sentencing judge.” Implementation Manual at 93.

The guidelines rules include rules governing proba-

tion sentences, violations, sanctions, and revocations. Some

of those rules limit the length of probationary terms and

the amount of custody units that can be imposed initially

120 State v. Logston

and for violations. See, e.g., OAR 213-005-0007 (presump-

tive probation sentences); OAR 213-005-0008 (duration of

probation); OAR 213-010-0001 (revocation); OAR 213-010-

0002 (sanctions). Another governs when probation revoca-

tion sanctions must be concurrent and when they can be

consecutive. OAR 213-012-0040.

The guidelines drafters were aware of existing sen-

tencing statutes. Indeed, the bill that resulted in the adop-

tion of the guidelines also amended existing statutes. Among

other things, that bill amended the statute that is now

codified as ORS 137.545(5)(b) to provide that, “[f]or defen-

dants sentenced for crimes committed on or after November

1, 1989, the court that imposed the probationary sentence

shall revoke probation supervision and impose a sanction

as provided by rules of the State Sentencing Guidelines

Board.” Or Laws 1989, ch 790, § 17(4)(b) (amending former

ORS 137.550 (1987), renumbered as ORS 137.545 (1999)).1

When the guidelines drafters wanted existing stat-

utes to apply instead of the guidelines, they stated so in the

guidelines themselves. See, e.g., OAR 213-004-0003(1) (stat-

ing that the guidelines do not include a crime seriousness

ranking for aggravated murder because the sentence for

that crime is “set by statute * * * (ORS 163.095-163.105)”).

Similarly, when they wanted existing statutes to apply in

addition to the guidelines, they either stated so in the guide-

lines or amended the existing statutes to integrate them

into the guidelines system. See, e.g., OAR 213-009-0003 (“In

addition to the presumptive or departure sentence, the sen-

tencing judge may impose any restitution, fine, fee or other

monetary payment authorized or required by law.”); see also

Implementation Manual at 151-52 (explaining that, “[t]o

ensure that [the dangerous offender] statute is not used in

a manner inconsistent with the general purposes and prin-

ciples of the guidelines system, the legislature amended the

dangerous offender statutes to integrate it into the guide-

lines system”).

1

As explained below, ORS 137.545(5)(b) was later amended to read as it does

today. 374 Or at 122 (Duncan, J., concurring). Specifically, “shall” was changed

to “may” to make it clear that, if a trial court found that a defendant had violated

a condition of probation, the trial court was not required to revoke the probation.

See id.

Cite as 374 Or 101 (2025) 121

After the guidelines were created, a question arose

regarding whether ORS 137.123—which, as mentioned, pre-

dates the guidelines—applies to probation revocation sanc-

tions for guidelines crimes. This court addressed that ques-

tion in Rusen and held that ORS 137.123 does not apply to

such sanctions.

In Rusen, the defendant pleaded no contest to four

counts of second-degree sexual abuse involving the same

victim. 369 Or at 680. The plea agreement specified that the

four counts “were committed on four different dates—i.e.,

not ‘the same continuous and uninterrupted course of con-

duct,’ ORS 137.123(2).” Rusen, 369 Or at 680. The crimes

were subject to the guidelines, and the trial court imposed

four probationary sentences. Id. at 680-81. During the defen-

dant’s probation term, the state alleged that the defendant

had violated a condition of his probation. Id. at 681. The

defendant admitted to a single violation. Id. The state asked

the trial court to impose consecutive revocation sanctions.

Id. The defendant argued against consecutive sanctions,

relying on OAR 213-012-0040(2)(a), which provides that, “[i]f

more than one term of probationary supervision is revoked

for a single supervision violation, the sentencing judge shall

impose the incarceration sanctions concurrently.” Rusen,

369 Or at 681. The trial court revoked all four of the defen-

dant’s probations and imposed four consecutive revocation

sanctions. Id. at 682.

The defendant appealed, and the Court of Appeals

reversed, holding that the trial court had erred in imposing

consecutive probation revocation sanctions for a single pro-

bation violation. State v. Rusen, 307 Or App 759, 760, 479

P3d 318 (2020). In doing so, the Court of Appeals “rejected

the state’s argument that the trial court had authority to

impose consecutive sanctions under ORS 137.123(2),” which,

as noted, allows for consecutive sentences for crimes that

“do not arise from the same continuous or uninterrupted

course of conduct.” Rusen, 369 Or at 682 (describing Court of

Appeals decision). On the state’s petition, we allowed review.

Id.

On review, the state argued that ORS 137.123

applies directly to probation revocation sanctions for

122 State v. Logston

guidelines crimes. Id. at 698-99. We rejected that argument

based on ORS 137.545(5)(b). Id. at 699-701. Again, that pro-

vision—which was enacted as part of the bill that created

the sentencing guidelines—states that, for defendants sen-

tenced for guidelines crimes, “the court that imposed the

probationary sentence may revoke probation supervision

and impose a sanction as provided by rules of the Oregon

Criminal Justice Commission [‘guidelines rules’].” ORS

137.545(5)(b). The state argued that ORS 137.545(5)(b)

should be read “to provide that, upon finding a proba-

tion violation, the trial court may or may not revoke pro-

bation, 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.” Rusen, 369 Or at 699.

But, based on the text, context, and legislative history of

ORS 137.545(5)(b), we rejected the state’s reading. Id. at

699-701. We explained that, as originally enacted in 1989,

the provision stated that a court “shall” revoke probation

and impose a sanction as provided by the guidelines, but the

term “shall” was changed to “may” in 1991 “to ensure that

judges retained their presentencing guidelines discretion

regarding whether to revoke probation, reflecting a recog-

nition that not all probation violations warrant revocation.”

Id. at 700. We further explained that that change was not

intended to alter the requirement that trial courts impose

probation revocation sanctions as provided by the guide-

lines. Id. That is, it was not 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.” Id. Consequently, we concluded that

ORS 137.545(5)(b) requires trial courts to impose probation

revocation sanctions under the guidelines rules only. Id. at

700-01. We summarized:

“[U]nder ORS 137.545(5)(b), upon finding a probation vio-

lation, a trial court may decide to revoke probation and

impose a sanction as provided by the sentencing guidelines

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

and not impose a sanction as provided by the sentencing

guidelines rules. But the provision does not authorize a trial

court to revoke probation and impose a sanction other than

those provided by the sentencing guidelines rules.”

Cite as 374 Or 101 (2025) 123

Id. (emphasis added); see also id. at 697 (stating that, for

guidelines crimes, “a trial court imposing probation revo-

cation sanctions is directed to the guidelines rules by ORS

137.545(5)(b)”); id. at 698 n 8 (rejecting the state’s argument

that ORS 137.123(2) directly applies to probation revocation

sanctions, stating, “as we just explained, the imposition of

probation revocation sanctions is governed by the sentenc-

ing rules[;] [s]o, to the extent that ORS 137.123(2) applies at

all, it would apply only through OAR 213-012-0010,” which

expressly incorporates ORS 137.123).

Thus, in Rusen, this court clearly held that ORS

137.545(5)(b) requires trial courts to impose sanctions under

the guidelines. 369 Or at 700-01. Because of that holding,

we proceeded to determine whether any guidelines rule

authorized the trial court to impose consecutive probation

revocation sanctions as it had. Id. at 701-04.2

2

It is worth noting that this court’s conclusion in Rusen that ORS 137.123

does not apply directly to probation revocation sanctions for guidelines crimes

is consistent with an argument that the state made, and the Court of Appeals

accepted, in State v. Newell, 238 Or App 385, 242 P3d 709 (2010). In Newell, the

defendant pleaded guilty to four counts of encouraging child sexual abuse in the

second degree, based on his possession of child pornography. Id. at 387. The trial

court imposed four probationary sentences. Id. While on probation, the defen-

dant admitted to having committed multiple probation violations. Id. The trial

court revoked all four of the defendant’s probations and imposed consecutive pro-

bation revocation sanctions over the defendant’s objection that the court could

not impose consecutive sanctions without making the findings required by ORS

137.123(5), which applies to consecutive sentences for crimes arising out of a con-

tinuous and uninterrupted course of conduct. Id. at 387-88.

The defendant appealed, renewing his argument that ORS 137.123 applies

to probation revocation sanctions for guidelines crimes. Id. The state disagreed,

arguing that ORS 137.123 “applies only to the imposition of sentences and not

to the imposition of probation revocation sanctions.” Id. at 392. The Court of

Appeals agreed with the state. Id. at 389 (concluding that ORS 137.123 “has no

application in the context of probation violation proceedings”).

In conducting its legal analysis, the Court of Appeals examined statutes and

guidelines rules. Id. at 389-94. It noted that ORS 137.545(5)(b) states that a court

that revokes probation may impose a sanction “as provided by” the sentencing

guidelines. Id. at 392. It then observed that the guidelines include rules that

relate to probation revocation sanctions, specifically, OAR 213-010-0002, which

concerns the length of sanctions, and OAR 213-012-0040(2), which concerns con-

current and consecutive probation revocation sanctions. Id. at 393-94. Based on

those rules, the court concluded that the sentencing guidelines maintain a dis-

tinction between consecutive sentences imposed upon conviction and consecutive

probation revocation sanctions. Id.

Continuing its analysis, the Court of Appeals looked to the legislative history

of the sentencing guidelines. Id. at 394-95. The court noted that the commentar-

ies to the guidelines rules relating to probation revocation sanctions show that

124 State v. Logston

As mentioned, the defendant in Rusen argued

that, because the trial court had revoked his probation

based on a single violation, OAR 213-012-0040(2) required

the trial court to impose concurrent sanctions. Id. at 698.

For its part, the state argued that another rule, OAR 213-

012-0010, authorized the trial court to impose consecutive

sanctions because that rule expressly incorporates ORS

137.123, which authorizes consecutive sentences for crimes

of conviction that do not arise from the same continuous and

uninterrupted course of conduct. Id. To determine which

rule applies, we looked to the text, context, and legislative

history of both rules. Id. at 703-04. We observed that OAR

213-012-0040(2) expressly refers to probation revocation

proceedings, but OAR 213-012-0010 does not. Id. at 703. We

further observed that “that failure [of OAR 213-012-0010] to

refer to probation revocation proceedings is particularly sig-

nificant 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.” Id. In light of the text of the rules and the

circumstances of their adoption and approval, we concluded

probation sanctions relate directly to the violations for which they are imposed, as

opposed to the underlying crimes of conviction. Id. The court quoted the commen-

tary to OAR 213-010-0002, which states that “ ‘[t]he sanctions described by this

rule are penalties for supervision violation and do not directly relate to the crime

of conviction.’ ” Newell, 238 Or App at 395 (quoting Implementation Manual at 170

(emphasis in Newell)). It also quoted the commentary to OAR 213-012-0040(2),

which states that the “ ‘prison term associated with the revocation sanction will

be served concurrently or consecutively depending on the nature of the supervision

violation.’ ” 238 Or App at 394 (quoting Implementation Manual at 118 (emphasis

in Newell)). In keeping with that understanding of probation sanctions, the court

rejected the defendant’s argument that ORS 137.123, which requires findings

about a defendant’s crimes of convictions, applies to probation sanctions. 238 Or

App at 395. The court summarized:

“None of the rules or statutes cited above, and none of our case law, supports

defendant’s suggestion that the facts of the underlying crimes would need to

be relitigated (which would necessarily need to occur were ORS 137.123 to

apply in this circumstance) in order to determine the appropriate sanctions

to impose for probation violations.

“Accordingly, we conclude that the trial court was correct in determin-

ing that the sole criterion for whether it could impose multiple incarceration

sanctions was whether there had been multiple probation violations. OAR

213-012-0040(2).”

Id. at 395. Thus, since 2010, it has been established Court of Appeals law that

ORS 137.123, which requires fact finding before the imposition of certain consec-

utive sentences, does not apply directly to probation revocation sanctions.

Cite as 374 Or 101 (2025) 125

that the rules “should be understood as addressing different

stages of sentencing.” Id. Specifically, OAR 213-012-0010

“applies to initial sentencing immediately following the con-

victions,” while OAR 213-012-0040(2) applies to “probation

revocation proceedings.” Id. at 703-04. In doing so, we noted

that that conclusion is the same as the one that “has been

applied by the Court of Appeals for decades.” Id. at 704 (cit-

ing State v. Stokes, 133 Or App 355, 358, 891 P2d 13 (1995),

as “interpreting OAR 213-012-0010 as governing initial sen-

tencing and interpreting OAR 213-012-0040 as governing

probation revocation”).3

In sum, in Rusen, this court made two important

holdings regarding probation revocation sanctions. The first

is that, given ORS 137.545(5)(b), probation revocation sanc-

tions are governed by the sentencing guidelines and, there-

fore, ORS 137.123 does not apply directly to them. The sec-

ond is that OAR 213-012-0010 applies to initial sentencing,

whereas OAR 213-012-0040(2) applies to probation revoca-

tion proceedings. Although OAR 213-012-0010 incorporates

ORS 137.123, OAR 213-012-0040(2) does not. Consequently,

ORS 137.123 does not apply to probation revocation proceed-

ings indirectly.

In his concurrence, Justice Bushong states that he

would overrule the first Rusen holding. 374 Or at 127, 140-42

(Bushong, J., concurring). He would hold that ORS 137.123

applies directly to probation revocation proceedings. Id. . As

I understand it, he would do so based on the text, context,

and legislative history of ORS 137.123. 374 Or at 140-42

3

The conclusion that OAR 213-012-0010 applies to initial sentencing is also

consistent with the commentary to the rule, which states that the rule “confirms

that existing statutory law controls the sentencing judge’s threshold choice of

consecutive or concurrent sentences for multiple convictions.” Implementation

Manual at 112 (commentary to former OAR 253-012-010 (Sept 1, 1989), renum-

bered as OAR 213-012-0010 (Mar 8, 1996)). Attached as it is to OAR 213-012-0010,

that comment makes sense because OAR 213-012-0010 expressly incorporates

sentencing statutes, including ORS 137.123. And the comment itself indicates

that the rule applies to a judge’s “threshold” choice of consecutive or concurrent

sentences, which suggests that it applies at a defendant’s initial sentencing.

Notably, the comment is not attached to OAR 213-012-0040(2), which applies

to probation revocation sanctions. It would not make sense if it were, because

the adoption of OAR 213-012-0040(2) changed trial courts’ authority to impose

consecutive probation revocation sanctions by precluding consecutive probation

revocation sanctions for a single probation violation.

126 State v. Logston

(Bushong, J., concurring). But, as explained above, ORS

137.123 is a preguidelines statute and, when the legislature

enacted the law that adopted the guidelines and amended

existing statutes, it created ORS 137.545(5)(b), under which

the guidelines control probation revocation sanctions.

Justice Bushong suggests that Rusen’s holding

that ORS 137.123 does not apply directly to probation revo-

cation sanctions was not fully considered. 374 Or at 141

(Bushong, J., concurring). But that view is contradicted

by the Rusen opinion. As described above, in Rusen, the

state specifically argued that ORS 137.123 applied directly

to probation revocation sanctions, and this court engaged

with that argument. Rusen, 369 Or at 697, 698 n 8, 699-701,

703-04. In doing so, this court looked to ORS 137.545(5)

(b), which weighed against the state’s argument. Id. It con-

sidered the text, context, and legislative history of ORS

137.545(5)(b) and concluded that the provision bars a trial

court from imposing a probation revocation sanction “other

than those provided by the sentencing guidelines rules.”

Id. at 699-701.4

As noted at the outset, no party in this case has

asked us to overrule that holding, much less undertaken to

prove that it should be overruled. For the reasons explained

4

This court’s conclusion in Rusen that ORS 137.123 does not apply directly

to probation revocation sanctions was a holding of the case. It was central to the

court’s reasoning; without it, the court would not have had to look to the guide-

lines rules. Moreover, if ORS 137.123 applied directly to probation revocation

proceedings as the state argued in Rusen, the outcome of the case would have

been different. Instead of agreeing with the defendant that OAR 213-012-0040(2)

precluded consecutive sanctions based on a single violation, we would have had to

hold that ORS 137.123 authorized consecutive sanctions because the underlying

offenses had not been part of “the same continuous and uninterrupted course

of conduct.” ORS 137.123(2). That is because, if both the rule and the statute

applied, the statute would trump the rule. See Newell, 238 Or App at 391-92

(“[Although legislative approval of administrative rules] ‘may be expressed in the

form of a statute, * * * that does not transform the [rules] themselves into stat-

utes. It stands to reason, therefore, that, merely because the legislature in 1989

declared its approval of the sentencing guidelines by statute, it did not thereby

transform the guidelines themselves into statutes. They were promulgated as

administrative rules, and administrative rules they remained[.]’ ” (Quoting State

v. Norris, 188 Or App 318, 343, 72 P3d 103, rev den, 336 Or 126 (2003).)); see also

State v. Carlton, 361 Or 29, 39 n 7, 388 P3d 1093 (2017) (sentencing guidelines

are administrative rules); Implementation Manual at 149 (“While the guidelines

have been approved by the legislature, they retain their status as administrative

rules. When those rules conflict with statutes, the statutory provisions control.”).

Cite as 374 Or 101 (2025) 127

above, I conclude that the holding is sound, as it is based

on an analysis of the legislature’s intent in enacting ORS

137.545(5)(b), as evidenced by the text, context, and legis-

lative history of that statute. Therefore, I disagree with the

position expressed in Justice Bushong’s concurrence that

this court should overrule the holding.5

BUSHONG, J., concurring.

The majority opinion holds that Article I, section

44(1)(b), of the Oregon Constitution authorized the trial

court in Lake County, after revoking defendant’s probation,

to impose a term of incarceration that is consecutive to the

prison sentence that another court had imposed in a dif-

ferent criminal case in Jefferson County. I agree with the

majority’s holding. I write separately because, in my view,

this case can and should be resolved on statutory grounds.

Doing so would require us to overrule State v. Rusen, 369

Or 677, 509 P3d 628 (2022), in part. Although no party has

asked us to do that, we should do so in this or a future case

because, in my view, Rusen misinterpreted ORS 137.123.

See State v. McCarthy, 369 Or 129, 144, 501 P3d 478 (2021)

(“this court is willing to reconsider an earlier decision when

it appears that the decision was incorrect, especially if,

in making the decision, the court did not apply its usual

interpretative methodology or was not presented with an

important argument.”). That statute, where applicable,

directly authorizes consecutive sentences upon revocation

of probation.

Under our traditional approach, “if statutory sources

of law provide a complete answer to [a] legal question that

5

According to Justice Bushong’s concurrence, this court addressed the

state’s argument that ORS 137.123 applies directly to probation revocation sanc-

tions only in a footnote. 374 Or at 140 (Bushong, J., concurring). A necessary

premise of the state’s argument was that ORS 137.123 could apply directly to

probation revocation sanctions, despite ORS 137.545(5)(b). Throughout the body

of the Rusen opinion, this court addressed that premise, ultimately rejecting it

on the ground that ORS 137.545(5)(b) requires trial courts to apply the guide-

lines (which is why this court then had to determine whether any guidelines rule

authorized the consecutive sentences at issue). Rusen, 369 Or at 697 (“a trial

court imposing probation revocation sanctions is directed to the guidelines rules

by ORS 137.545(5)(b)”); id. at 701 (ORS 137.545(5)(b) “does not authorize a trial

court to revoke probation and impose a sanction other than those provided by the

sentencing guidelines rules”); id. at 701-704 (analyzing OAR 213-012-0010 and

OAR 213-012-0040(2)).

128 State v. Logston

a case presents, we ordinarily decide the case on that basis,

rather than turning to constitutional provisions.” Rico-

Villalobos v. Giusto, 339 Or 197, 205, 118 P3d 246 (2005); see

also Planned Parenthood Ass’n v. Dep’t of Human Res., 297

Or 562, 564, 687 P2d 785 (1984) (stating that “constitutional

issues should not be decided when there is an adequate

statutory basis for a decision”). We will ordinarily attempt

to resolve a case on statutory grounds even if the parties

attempt to frame the issue in purely constitutional terms.

State ex rel Keisling v. Norblad, 317 Or 615, 624, 860 P2d

241 (1993); Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773

(1990).

I would adhere to that approach and decide this

case on statutory grounds. I begin by explaining the statu-

tory basis for deciding this case before turning to our prior

decision in Rusen.

I. STATUTORY RESOLUTION—ORS 137.123

As noted in the majority opinion, the state contends

that consecutive sentences were authorized by ORS 137.123.

Deciding that issue would require the court to interpret the

statute, applying our traditional methodology, focusing on

text, context, and legislative history. State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009). I begin with the text and

context.

A. Text and Context of ORS 137.123

ORS 137.123 provides, in pertinent part, as follows:

“(1) A sentence imposed by the court may be made con-

current or consecutive to any other sentence which has been

previously imposed or is simultaneously imposed upon the

same defendant. The court may provide for consecutive sen-

tences only in accordance with the provisions of this section.

A sentence shall be deemed to be a concurrent term unless

the judgment expressly provides for consecutive sentences.

“(2) If a defendant is simultaneously sentenced for

criminal offenses that do not arise from the same contin-

uous and uninterrupted course of conduct, or if the defen-

dant previously was sentenced by any other court within the

United States to a sentence which the defendant has not yet

Cite as 374 Or 101 (2025) 129

completed, the court may impose a sentence concurrent with

or consecutive to the other sentence or sentences.”

(Emphases added.) The state relies on the emphasized por-

tions of ORS 137.123 as the statutory authority for the trial

court’s decision, upon revoking defendant’s probation, to

impose a term of incarceration that was consecutive to the

sentences that had been previously imposed by the Jefferson

County Circuit Court that defendant was serving at the

time of revocation.

Defendant does not dispute that the text of ORS

137.123 would authorize a consecutive sentence if the term

of incarceration imposed after revoking defendant’s pro-

bation was a “sentence” within the meaning of that stat-

ute. Defendant contends, however, that the only sentence

imposed by the Lake County Circuit Court was the sentence

of probation that the court originally imposed. According to

defendant, incarceration following revocation of probation is

a sanction for violating probation and not a sentence within

the meaning of ORS 137.123, because Oregon’s sentencing

scheme established two distinct pathways for imposing a

term of incarceration: the original sentence and a probation

revocation sanction. I disagree.

The plain meaning of the word “revocation” supports

the conclusion that a court imposes a new “sentence” after

revoking a defendant’s probation. The dictionary defines

“revocation” as “an act of revoking : the act by which one hav-

ing the right annuls something previously done * * * : repeal,

reversal, withdrawal. Webster’s Third New Int’l Dictionary

1944 (unabridged ed 2002). Thus, the act of “revoking” defen-

dant’s original sentence of probation effectively “annulled” or

“withdrew” the original sentence and resulted in the impo-

sition of a new sentence. That new sentence is appealable

under ORS 138.035(3) (stating that a defendant “may appeal

a judgment or order * * * imposing * * * a sentence upon revo-

cation of probation” (emphasis added)).1

1

By contrast, the term “sanction” makes sense when probation is continued,

not revoked, and the probationer is sanctioned for violating the terms of proba-

tion. See ORS 137.593(2)(c) (noting that, upon finding a violation, a court has

discretion “to revoke probation or impose such other or additional sanctions” as

authorized by law); ORS 137.595 (describing system of “structured, intermediate

probation violation sanctions”).

130 State v. Logston

Other related statutes that apply to sentencing and

the consequences of probation revocation do not describe two

distinct pathways to incarceration.2 Some statutes describe

the penalties for a probation violation as a “sanction.” See, e.g.,

ORS 137.545(5)(b) (authorizing courts that imposed a proba-

tionary sentence for felonies committed on or after November

1, 1989, to “revoke probation supervision and impose a sanc-

tion as provided by rules of the Oregon Criminal Justice

Commission”); ORS 137.593(1) (the relevant corrections

agency “shall impose structured, intermediate sanctions”

if the defendant violated the conditions of probation); ORS

137.593(2)(b), (c) (authorizing a court to impose “sanctions”

for violating the conditions of probation); ORS 137.593(2)(d)

(authorizing the court to impose a period of incarceration “as a

sanction for revocation of probation”); ORS 137.595(1) (direct-

ing the Department of Corrections to establish “a system of

structured, intermediate probation violation sanctions”).

Other statutes, however, refer to the imposition of

a term of incarceration upon revocation of probation as a

“sentence.” See, e.g., ORS 137.010(7) (stating that, “when a

suspended sentence or sentence of probation is revoked, the

court shall impose the following sentence”); ORS 137.712(5)

(stating that, if a person subject to a mandatory minimum

sentence is placed on probation under that statute and then

violates probation by committing a new crime, the court

“shall revoke the probation and impose the presumptive

sentence of imprisonment” under the rules of the Oregon

Criminal Justice Commission); ORS 161.585(2)(c) (stating

that certain crimes will be treated as felonies unless, upon

revocation of probation, “the court imposes a sentence of

imprisonment other than to the legal and physical custody

of the Department of Corrections”). In addition, imposing a

term of incarceration after revoking probation is appealable

under ORS 138.035, because “sentence” is defined in ORS

138.005(5)(b) to include “imposition or execution of a sen-

tence upon revocation of probation[.]” (Emphasis added.)

Similarly, the sentencing guidelines rules also use

both terms in describing the consequences of a probation

2

Context includes other provisions of the same statute and other related stat-

utes. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

Cite as 374 Or 101 (2025) 131

revocation. For example, OAR 213-012-0040(2) repeatedly

refers to “the sentencing judge” but also uses the term “sanc-

tions” to refer to the consequences of a probation violation.3

OAR 213-010-0002 repeatedly refers to incarceration upon

revocation of probation as a “sentence.”4

Because the statutes and the sentencing guidelines

rules use the terms “sanction” and “sentence” interchange-

ably to describe the consequences of revoking probation,

those statutes and rules do not clearly define two distinct

pathways to imprisonment.

We said as much in State v. Lane, 357 Or 619, 355

P3d 914 (2015). There, we examined the historical context of

Article I, section 44, of the Oregon Constitution. That exam-

ination included the statutes and regulations that existed in

1999, when Article I, section 44, was adopted by the voters

after a legislative referral. Id. at 627. The defendant argued

that those statutes and regulations revealed an unambigu-

ous distinction between imposing a sentence for a crime and

imposing a sanction upon probation revocation. But we did

not “find such a clear distinction in the relevant statutes and

3

OAR 213-012-0040(2) provides:

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

vision, 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 supervision is revoked for a

single supervision violation, the sentencing judge shall impose the incarcera-

tion sanctions concurrently.

“(b) If more than one term of probationary supervision is revoked for sep-

arate supervision violations, the sentencing judge may impose the incarcera-

tion sanctions concurrently or consecutively.”

(Emphases added.)

4

OAR 213-010-0002 provides, in part:

“(1) For those offenders whose presumptive sentence was probation, the

sentence upon revocation shall be to the supervisory authority for a term up

to a maximum of six months.

“(2) For those offenders whose probationary sentence was either a depar-

ture from a presumptive prison sentence or a sentence imposed pursuant to

OAR 213-005-0006, the sentence upon revocation shall be a prison term up to

the maximum presumptive prison term which could have been imposed ini-

tially, if the presumptive prison term exceeds 12 months. For those presump-

tive prison terms 12 months or less, the sentence upon revocation shall be to

the supervisory authority, up to the maximum presumptive prison term.”

(Emphases added.)

132 State v. Logston

regulations[.]” Id. at 628. Instead, we noted that “a number

of statutes describe the penalties for a probation violation

as a ‘sanction[,]’ ” id., but “other statutes and rules * * * refer

to the imposition of a sanction for probation violations as

‘sentencing[,]’ ” id. at 629. Thus, we thought that the vot-

ers who adopted Article I, section 44(1)(b), would not have

understood that there was “a well-established and ‘unam-

biguous’ distinction between imposing probation revocation

sanctions and sentencing.” Id. at 631.

Additional context supports the conclusion that

ORS 137.123 applies to a sentence of imprisonment imposed

upon revocation of probation. ORS 137.123 was enacted by

initiative in 1986 as part of Ballot Measure 10 (1986), known

as the “Crime Victims’ Bill of Rights.” Or Laws 1987, ch 2,

§ 1; see State v. Soto, 372 Or 561, 584-85, 551 P3d 893 (2024)

(describing enactment history). That was three years before

the Oregon legislature “substantially changed the way

courts sentenced felony offenders.” State ex rel Engweiler v.

Cook, 340 Or 373, 380, 133 P3d 904 (2006) (citing Or Laws

1989, ch 790). The 1989 legislation “abolished Oregon’s inde-

terminate sentencing system” and replaced it with the cur-

rent sentencing guidelines scheme. Engweiler v. Board of

Parole, 343 Or 536, 540, 175 P3d 408 (2007).

Under the indeterminate sentencing system that

existed when ORS 137.123 was enacted, there was no such

thing as a “sentence” of probation. At that time, a trial court

had two options if it wanted to place a convicted felon on

probation: (1) It could sentence the defendant to a term

of imprisonment and suspend execution of that sentence

during the term of probation; or (2) it could “suspend the

imposition of a sentence and sentence [the defendant] at a

later date if probation [was] violated.” State v. Stevens, 253

Or 563, 565, 456 P2d 494 (1969); see also State v. Carmickle,

307 Or 1, 7-10, 762 P2d 290 (1988) (describing the history of

probation in Oregon); State v. McClure, 295 Or 732, 736, 670

P2d 1009 (1983) (stating that probation was “an alternative

to the imposition of a sentence”); State v. Ludwig, 218 Or

483, 486-87, 344 P2d 764 (1959) (stating that “[p]robation

is a release by the court before sentence has commenced”).

Cite as 374 Or 101 (2025) 133

Thus, the term of imprisonment imposed upon revocation of

probation was the sentence.

In 1985—one year before the voters enacted ORS

137.123—the legislature enacted former ORS 137.122

(1985).5 Or Laws 1985, ch 722, § 2. That law provided that,

if the defendant had been previously sentenced to a term

of imprisonment by another court, “the court may impose

a term of imprisonment concurrent with or consecutive to”

the previous term of imprisonment. Former ORS 137.122(2)

(1985). Because that statute applied when a court imposed

“a term of imprisonment”—not a “sentence”—it authorized

a court to impose a term of imprisonment upon revocation of

probation that was consecutive to a previously imposed term

of imprisonment.6

Thus, in 1986, when the voters expressly authorized

consecutive “sentences” by adopting ORS 137.123, courts

were already authorized under former ORS 137.122(2) (1985)

to impose upon revocation of probation a term of imprison-

ment that was consecutive to a term of imprisonment that

had been previously imposed by another court. It would

seem to follow that the voters in 1986 likely intended “sen-

tence” as used in Measure 10 to include a term of impris-

onment imposed upon revocation of probation. Granted, we

stated in Soto that, “even assuming that voters in 1986 may

have been generally aware that the legislature had recently

enacted a consecutive sentence statute, former ORS 137.122

(1985), we cannot infer that the voters intended [Measure

10] to have the same meaning” as that statute. 372 Or at

586-87. Accordingly, former ORS 137.122 (1985) provides

5

The legislature repealed ORS 137.122—which was mostly duplicative of

ORS 137.123—in 1991. Or Laws 1991, ch 67, § 28.

6

Before 1961, a statute made consecutive sentences mandatory when

a defendant was serving a prison sentence at the time of sentencing on a new

crime. See former ORS 137.160 (1959) (“If the defendant is in imprisonment upon

a previous judgment on a conviction for a crime, the judgment shall be that the

imprisonment shall commence at the expiration of the term limited by the pre-

vious judgment”). That statute was repealed in 1961. Or Laws 1961, ch 520, § 1.

From 1961 until 1985, no statute gave courts the authority to impose a sentence

that was consecutive to a previously imposed sentence, but this court had indi-

cated that “permissive legislation was not necessary” because “[i]t is an inherent

power of the court to impose sentences, including the choice of concurrent or con-

secutive terms when the occasion demands it.” State v. Jones, 250 Or 59, 61, 440

P2d 371 (1968).

134 State v. Logston

relevant context, but it does not necessarily indicate that

the voters intended Measure 10 to have the same meaning.

Defendant reads more into the legislature’s replace-

ment of indeterminate sentencing with the current sen-

tencing guidelines scheme. He contends that, even if ORS

137.123 may have authorized trial courts to impose a consec-

utive “sentence” upon revocation of probation when the vot-

ers enacted that statute in 1986, the legislature’s enactment

of our current sentencing system in 1989 eliminated that

authority. The 1989 legislation included the provision that is

now codified in ORS 137.545(5)(b), which provides that “the

court that imposed [a] probationary sentence may revoke

probation supervision and impose a sanction as provided by

rules of the Oregon Criminal Justice Commission.”7 (Emphasis

added.) Those rules have been approved by the legislature.

See State v. Carlton, 361 Or 29, 39 n 7, 388 P3d 1093 (2017)

(noting that the sentencing guidelines “are administra-

tive rules, of which the legislature has expressed approval,

although without formally adopting them as statutes”).

According to defendant, under our current system,

probation revocation sanctions are now governed exclusively

by the sentencing guidelines rules, and those rules do not

authorize a trial court to impose upon revocation of proba-

tion a term of incarceration that is consecutive to a sentence

that had been imposed in another case. That argument

fails in both respects. The sentencing guidelines rules are

not exclusive; they incorporate existing statutory authority

governing consecutive sentences.8 And, contrary to Justice

7

We discussed the enactment history of ORS 137.545 in Rusen. There, we

explained that, as originally enacted, the statute required trial courts to revoke

probation upon finding a violation of the conditions of probation, but the legislature

amended the law in 1991 to make revocation discretionary. Rusen, 369 Or at 700.

8

Justice Duncan suggests that a court’s authority under ORS 137.545(5)

(b) to impose a sanction “as provided by” the sentencing guidelines rules means

that ORS 137.123 cannot directly apply. 374 Or at 125 (Duncan, J., concurring).

ORS 137.545(5)(b) was enacted in 1989, three years after the voters enacted ORS

137.123, and it did not expressly amend or repeal ORS 137.123. We generally do

not treat a statute as implicitly repealing authority previously granted by an

existing statute. See State ex rel Huddleston v. Sawyer, 324 Or 597, 605, 932 P2d

1145, cert den, 522 US 994 (1997) (holding that Measure 11 did not repeal the

sentencing guidelines by implication because they “can be harmonized to give

effect to both”); State ex rel. Med. Pear Co. v. Fowler, 207 Or 182, 195, 295 P2d

167 (1956) (“It is well settled that amendments or repeals by implication are not

favored by the courts.”).

Cite as 374 Or 101 (2025) 135

Duncan’s concurrence and as explained next, those rules

authorize a trial court to impose upon revocation of proba-

tion a term of incarceration that is consecutive to a prior

sentence when the original sentence of probation was a

departure from a presumptive prison sentence.

OAR 213-010-0002(2) provides that, if the original

probationary sentence was a departure from a presumptive

prison sentence, “the sentence upon revocation shall be a

prison term up to the maximum presumptive prison term

which could have been imposed initially[.]” The Oregon

Sentencing Guidelines Implementation Manual (Guidelines

Manual) contains the official commentary to the sentenc-

ing guidelines.9 Oregon Criminal Justice Council, Oregon

Sentencing Guidelines Implementation Manual (1989).

The Guidelines Manual explains the purpose of OAR

213-010-0002(2):

“This section reflects a policy judgment by the

Guidelines Board that an offender granted probation in lieu

of presumptive imprisonment should remain subject to the

imprisonment that the court could have imposed as a pre-

sumptive sentence under these guidelines. This sanction pol-

icy should encourage probationary sentences in appropriate

cases because the sentencing judge retains the authority to

impose the more substantial prison term. The policy should

also encourage compliance with the conditions of probation

because the offender will be aware of the more severe revo-

cation penalty.”

Oregon Sentencing Guidelines Implementation Manual 170

(1989) (emphasis added). Thus, determining the sentence

that could be imposed upon revocation of a probation that

was initially imposed as a departure from a presumptive

prison sentence requires the court to determine what sen-

tence the court could have imposed, had it not departed to

probation.

Whether that sentence could be imposed consecu-

tively to a sentence that the defendant was serving at the

9

As noted, the Guidelines Manual contains the State Sentencing Guidelines

Board’s “official commentary to each of the rules comprising the guidelines.”

State v. Davis, 315 Or 484, 493 n 14, 847 P2d 834 (1993). We have also explained

that the Guidelines Manual is a “training tool” and “reference manual” that

“describes for criminal justice professionals the proper application of the guide-

lines.” Id. (internal quotation marks omitted).

136 State v. Logston

time is addressed in the sentencing guidelines rule that gov-

erns the imposition of consecutive or concurrent sentences.

That rule incorporates existing statutory authority, includ-

ing ORS 137.123, for the imposition of consecutive sentences.

OAR 213-012-0010 provides:

“When 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.”10

Thus, if consecutive sentences are authorized directly by

ORS 137.123, they should also be authorized indirectly

through the sentencing guidelines rule that incorporates

that statute. And nothing in the sentencing guidelines rules

precludes a court from imposing a consecutive term of incar-

ceration in situations that are covered by ORS 137.123.

The Guidelines Manual confirms that the sentenc-

ing guidelines rules were never intended “to limit the court’s

discretion to impose concurrent or consecutive sentences”

in situations covered by the statute. Oregon Sentencing

Guidelines Implementation Manual 112 (1989). Instead, the

Guidelines Manual recognizes that the court’s discretion

to impose concurrent or consecutive sentences “is granted

to the judiciary by statute.” Id. (citing former ORS 137.122

(1985) and ORS 137.123).

Rather than limiting that discretion, “the sentenc-

ing guidelines prescribe the manner in which multiple sen-

tences are to be computed.” Id. In describing the intent of

former OAR 253-12-010 (1989) (now OAR 213-012-0010)11—

10

ORS 137.370(5) provides:

“Unless the court expressly orders otherwise, a term of imprisonment

shall be concurrent with that portion of any sentence previously imposed that

remains unexpired at the time the court imposes sentence.”

Under that provision, the term of imprisonment imposed by the Lake County

court upon revocation of defendant’s probation in this case “shall be concurrent”

with the remaining unexpired term of the Jefferson County sentence, “unless the

court expressly orders otherwise.” It is undisputed that the Lake County court

here “expressly order[ed] otherwise” by imposing a sentence that was consecutive

to the remaining term of the Jefferson County sentence.

11

As originally promulgated, former OAR 253-12-010 (1989) provided:

“When multiple convictions have been entered against a single defen-

dant, the sentencing judge may impose consecutive or concurrent sentences

as provided by ORS 137.122, 137.123 and 137.370.”

Cite as 374 Or 101 (2025) 137

the sentencing guidelines rule that addresses concurrent

and consecutive sentences—the commentary states that

the rule “confirms that existing statutory law controls the

sentencing judge’s threshold choice of consecutive or concur-

rent sentences for multiple convictions.” Id. The commen-

tary then addresses the situation presented in this case: “If

the sentencing judge imposes the sentence in the current

case consecutively to a remaining sentence from a prior pro-

ceeding, [former] OAR 253-12-030 [(1989) (now OAR 213-

012-0030)] must be consulted for the proper execution of the

consecutive sentences.” Id.

The rule that “must be consulted”—former OAR

253-12-030 (1989) (which is now numbered as OAR 213-012-

0030)—describes how the length of consecutive sentences is

to be computed:

“When a sentence is imposed consecutively to a sentence

imposed in a prior proceeding, the incarceration term of

the new sentence is added to the remaining incarceration

term of the prior sentence.”

OAR 213-012-0030(1).12 Again, that rule is premised on

the understanding that the court—exercising authority

conferred by statute—makes the discretionary decision of

whether to impose a sentence that will be consecutive to a

previously imposed sentence. And, as noted above, the com-

mentary to the rules on concurrent and consecutive sentenc-

ing states that “[n]othing in the rules of the State Sentencing

Guidelines Board should be read to limit the court’s discre-

tion to impose concurrent or consecutive sentences.” Oregon

Sentencing Guidelines Implementation Manual 112 (1989).

Thus, contrary to Justice Duncan’s suggestion, 374 Or at 120

(Duncan, J., concurring), the sentencing guidelines rules do

not need to explicitly refer to existing statutory authority for

that authority to apply.

That rule was renumbered, and the current rule, OAR 213-012-0010, is identical,

except that the reference to the repealed statute, former ORS 137.122 (1985), has

been deleted.

12

As applied in this case, OAR 213-012-0030(1) means that the consecutive

sentence imposed by the Lake County court would be added to the end of the term

of incarceration that had been imposed by the Jefferson County court. The rule

itself does not authorize the Lake County court to impose a consecutive sentence;

it presumes that the court could do so, exercising its statutory authority.

138 State v. Logston

In summary, the text of ORS 137.123, read in con-

text, suggests that the statute applies to a court’s sentencing

decision upon revocation of probation, and as applied here,

authorized the Lake County court to impose a term of impris-

onment that was consecutive to the Jefferson County sen-

tence that defendant was serving at the time. As discussed

next, the history of that statute does not suggest otherwise.

B. History of ORS 137.123

As noted above, ORS 137.123 was adopted by ini-

tiative in 1986 as part of Measure 10, known as the “Crime

Victims’ Bill of Rights.” Or Laws 1987, ch 2, § 1. In deter-

mining the intended scope of a law adopted through the ini-

tiative, our goal is “to discern the intent of the voters who

adopted it.” Burke v. Dep’t of Land Conservation & Dev., 352

Or 428, 433, 290 P3d 790 (2012). The ballot title described

the measure as “revis[ing] many criminal laws concerning

victims’ rights, evidence, sentencing, [and] parole.” Official

Voters’ Pamphlet, General Election, Nov 4, 1986, 49. The

issue of consecutive sentencing “received little attention in

the voters’ pamphlet.” Soto, 372 Or at 584. As we noted in

Soto, the ballot title explanation stated that the measure

“ ‘[s]ets consecutive sentence rules,’ ” and the explanation

section of the voters’ pamphlet stated, without further elab-

oration, that Measure 10 would “ ‘slightly expand circum-

stances under which a person * * * may be given consecutive

sentences.’ ” Id. (quoting Voters’ Pamphlet at 49, 52).

The ballot title, voters’ pamphlet statements, and

media coverage for Measure 10 generally focused on victims’

rights.13 The few statements that mention sentencing indi-

13

For example, an endorsement from then-Governor Victor Atiyeh stated,

“This is your measure if you are among a majority of Oregonians who believe it

is time to restore equal rights to crime victims.” Voters’ Pamphlet at 53. Another

supporter, The Committee Against Unfair Trials, stated that Measure 10 was

for voters who “believe that the rights of innocent victims should be equal to

the rights of persons accused of crimes.” Id. Opponents primarily focused on the

increased costs to the courts and prison system. For example, Oregon Taxpayers

for Justice asserted that the measure would require an increase in the number

of prison beds, suggesting that at least some of the public understood that the

measure would impact sentencing and prison terms. Id. at 55.

Media coverage reflected the same attention to victims’ rights with little dis-

cussion of sentencing. An endorsement from the editorial board of The Oregonian

stated that the measure was “a sensible proposal that moves toward correcting a

perceived imbalance in the [criminal justice] system[.]” Time to help victims, 136

Cite as 374 Or 101 (2025) 139

cated that the measure expanded courts’ authority to impose

consecutive sentences without specifically addressing sen-

tences imposed upon revocation of probation. Because courts

already had authority under former ORS 137.122 (1985) to

impose a term of imprisonment upon revocation of proba-

tion that was consecutive to another sentence as explained

above, it seems unlikely that Measure 10—which was

intended to expand courts’ existing authority—would have

restricted courts’ authority to impose consecutive sentences

by eliminating the authority they had at that time under

former ORS 137.122 (1985).

In summary, nothing in the history of ORS 137.123

suggests that it was intended to restrict a court’s authority

to impose a consecutive term of imprisonment upon revoca-

tion of probation. However, this court concluded in Rusen,

369 Or 677, that ORS 137.123 does not directly authorize

consecutive sentences upon revocation of probation. As I

will explain next, that conclusion is wrong and should be

overruled.

II. OVERRULING RUSEN IN PART

The issue in Rusen was whether a court, upon revok-

ing multiple terms of probation based upon a single violation,

could impose terms of imprisonment that were consecutive

to each other. The defendant contended that consecutive sen-

tences were precluded by a sentencing guidelines rule, OAR

213-012-0040(2), that required concurrent sentences in that

situation. The state argued in response that that rule conflicted

with a different rule—OAR 213-012-0010—that expressly

incorporated ORS 137.123, and thus, authorized consecutive

sentences. On review, this court first addressed a “threshold

issue”: whether ORS 138.105(9) precluded appellate review of

the consecutive incarceration terms that the trial court had

imposed. 369 Or at 695. Much of our opinion on review was

devoted to that issue, and we concluded that ORS 138.105(9)

“precludes review of a sentencing challenge only when” cer-

tain conditions are met. Id. Because those conditions were not

Oregonian A1, C6 (Sept 12, 1986). The editorial board highlighted victim-cen-

tered provisions in the measure, including “giv[ing] crime victims more of a for-

mal role in court procedures, protecting them from pretrial contact by defen-

dants, allowing them to watch trials even if called as witnesses, [and] letting

them comment at sentencing and parole hearings[.]” Id.

140 State v. Logston

present in Rusen, we concluded that ORS 138.105(9) did not

bar appellate review in that case. 369 Or at 695-96.

Turning to the merits, we attempted to “harmo-

nize” the two conflicting rules, concluding that OAR 213-

012-0010 (with its incorporation of ORS 137.123) and OAR

213-012-0040(2) “should be understood as addressing dif-

ferent stages of sentencing: the former rule applies to initial

sentencing immediately following the convictions, while the

latter rule refers to probation revocation proceedings.” 369

Or at 703.14 Accordingly, we rejected the state’s argument

that the trial court’s imposition of consecutive probation

revocation sanctions was authorized by OAR 213-012-0010

(with its incorporation of ORS 137.123). 369 Or at 704.

In attempting to harmonize the two conflicting

rules, this court also rejected—in a footnote—the state’s

argument that “sentences” as used in ORS 137.123(2) should

be interpreted to include probation revocation sanctions, as

we had interpreted the term “sentences” in Article I, sec-

tion 44(1)(b), in Lane, and that, if interpreted that way, then

ORS 137.123(2) itself would directly authorize the trial court

to impose consecutive sentences upon revocation of proba-

tion. Rusen, 369 Or at 698 n 8. We concluded in that footnote

that, “to the extent that ORS 137.123(2) applies at all, it

would apply only through OAR 213-012-0010.” Id.

The conclusion that ORS 137.123 does not directly

apply upon revocation of probation is wrong and should be

overruled. As discussed above, the text, context, and history

of ORS 137.123 all demonstrate that that statute directly

authorizes trial courts to impose consecutive sentences upon

revocation of probation in some circumstances, and thus, that

statute does not apply “only through OAR 213-012-0010.” Id.

(Emphasis added.) The contrary conclusion in Rusen is wrong.

14

In my view, a better way to “harmonize” the two conflicting rules in Rusen

would have been to recognize that the rule cited by the state—OAR 213-012-

0010—is a general rule that applies to all sentences, while the rule cited by the

defendant—OAR 213-012-0040(2)—is a more specific rule that squarely applied

to the sentencing issue presented in that case. Those rules could be harmonized

by applying the principle that the specific rule controls over the general one. See

ORS 174.020(2) (“When a general provision and a particular provision are incon-

sistent, the latter is paramount to the former so that a particular intent controls

a general intent that is inconsistent with the particular intent.”); Kambury v.

DaimlerChrysler Corp., 334 Or 367, 374, 50 P3d 1163 (2002) (applying principle).

Cite as 374 Or 101 (2025) 141

Rusen’s misinterpretation is understandable.

Because the court was presented with arguments about

how to harmonize two conflicting sentencing guidelines

rules, Rusen did not analyze the text, context, or history

of ORS 137.123.15 Nor did it mention the statements in the

Guidelines Manual confirming that a court’s discretion to

impose concurrent or consecutive sentences “is granted

to the judiciary by statute.” Oregon Sentencing Guidelines

Implementation Manual 112 (1989) (citing former ORS

137.122 (1985) and ORS 137.123); see also id. (stating that

OAR 213-012-0010 “confirms that existing statutory law con-

trols the sentencing judge’s threshold choice of consecutive

or concurrent sentences for multiple convictions” (emphasis

added)). Thus, Rusen’s conclusion that ORS 137.123 does

not directly apply upon revocation of probation was more of

an offhand rejection of an alternative argument offered by

the state than a full-blown analysis of the intended scope of

ORS 137.123.

As explained above, analyzing the text, context,

and history of ORS 137.123 reveals that that statute directly

authorizes a court to impose, upon revocation of probation, a

sentence of imprisonment that is consecutive to a sentence

that the defendant is serving at the time of revocation.

Although a sentencing guidelines rule precluded consecu-

tive sentences in Rusen, that rule could not deprive the court

of authority granted by statute. Id. (“While the guidelines

have been approved by the legislature, they retain their sta-

tus as administrative rules. When those rules conflict with

statutes, the statutory provisions control”); Fisher Broad.,

Inc. v. Dep’t of Rev., 321 Or 341, 355, 898 P2d 1333 (1995)

(legislative choice under statute cannot be overruled by

department regulation); Univ. of Or. Coop. Store v. Dep’t of

Rev., 273 Or 539, 550, 542 P2d 900 (1975) (“[A]n administra-

tive agency may not, by its rules, amend, alter, enlarge or

limit the terms of a legislative enactment.”). Accordingly, the

15

Justice Duncan suggests that Rusen’s holding that ORS 137.123 does

not apply upon revocation of probation was “fully considered” because the court

considered the text, context, and legislative history of a different statute, ORS

137.545(5)(b). 374 Or at 126 (Duncan, J., concurring). But the court’s analysis of

text, context, and legislative history of one statute is not also a full consideration

of the text, context, and history of a different statute enacted three years earlier.

142 State v. Logston

second holding in Rusen—that consecutive sentences were

not authorized in that case by statute—should be overruled.

In conclusion, I would decide this case on statutory

grounds and hold that, upon revoking defendant’s probation,

the Lake County court had authority under ORS 137.123 to

impose a term of imprisonment that was consecutive to the

Jefferson County prison sentence that defendant was serv-

ing at the time. In so doing, I would overrule the conclu-

sion in Rusen, 369 Or at 698 n 8, that ORS 137.123 does not

directly authorize consecutive sentences upon revocation of

probation.

Because I fully agree with the majority opinion’s

disposition of this case and its analysis of Article I, section

44, I respectfully concur.

James, J., and Masih, J., join in this concurring

opinion.