State v. Stark

No. 34 August 15, 2013 1

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

NILE TERRENCE STARK,

Petitioner on Review.

(CC 08040789; CA A144974; SC S060384)

On review from the Court of Appeals.*

Argued and submitted March 12, 2013.

Andrew D. Robinson, Deputy Public Defender, Salem,

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

With him on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, Salem,

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

With him on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Linder,

Landau, and Baldwin, Justices.**

WALTERS, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

**  Appeal from Linn County Circuit Court, John A. McCormick, Judge. 248

Or App 573 (2012).

**  Brewer, J., did not participate in the consideration or decision of this case.

2 State v. Stark

Defendant challenged his conviction for the crime of felon in possession of

a firearm, arguing that, when he possessed the firearm in question, he was not

a “person who has been convicted of a felony” within the meaning of the felon-

in-possession statute, ORS 166.270. Defendant acknowledged a prior felony

conviction, but he argued that, because the trial court that entered the judgment

of conviction had later issued an order, and then a judgment, stating that that

conviction was for a misdemeanor, his case fell under subsection (3)(a) of ORS

166.270, which states that an apparent felony conviction “shall not be deemed a

conviction of a felony if * * * the court declared the conviction to be a misdemeanor

at the time of judgment.” The trial court rejected that argument and defendant

was convicted. The Court of Appeals affirmed the conviction, holding that

subsection (3)(a) of ORS 166.270 refers only to declarations made by courts at the

time of the original judgment of conviction, and that, once a judgment is entered

convicting a person of a felony, a later order or judgment reducing that conviction

to a misdemeanor cannot alter the person’s status as a felony for purposes of

the statute. Held: Although ORS 166.270(3)(a) may apply to declarations of

misdemeanor status in judgments of conviction entered subsequent to the

original judgment, no such subsequent judgment was in effect at the time the

accused was found in possession of a firearm.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

Cite as 354 Or 1 (2013) 3

WALTERS, J.

Defendant challenges his conviction for the crime of

felon in possession of a firearm, arguing that, when he pos-

sessed the firearm in question, he was not a “person who has

been convicted of a felony” within the meaning of the felon-

in-possession statute, ORS 166.270. Paragraph (3)(a) of

that statute provides that a conviction shall not be deemed

a felony conviction if, “at the time of judgment,” the court

declared the conviction to be a misdemeanor. We interpret

that paragraph to refer not only to the original judgment of

conviction, but also to subsequent judgments of conviction

entered prior to an accused’s firearm possession. In this case,

we conclude that the court had not declared defendant’s

conviction to be a misdemeanor in the original or a subse-

quent judgment of conviction by the time that defendant pos-

sessed the firearm in question. Accordingly, we reject defen-

dant’s claim of error and affirm his conviction on the felon-

in-possession charge.

The following undisputed facts appear in the record.

In 2004, defendant was convicted in Marion County Circuit

Court of felony possession of a controlled substance and was

sentenced to 18 months of supervised probation. The judgment

of conviction included a handwritten notation: “If defendant

successfully completes probation with no violations, [he]

may apply to [the] court for misdemeanor treatment.”

When defendant completed his probation early in

2006, he moved the Marion County Circuit Court for “an

order reducing the charge in the present case from a felony

to a misdemeanor.” In an affidavit attached to the motion,

defendant explained that he was seeking reduction to a

misdemeanor because he thought that would give him a

better chance of obtaining employment. The state informed

the court that it did not object, and the court, “having

reviewed the files and records herein and good cause appear-

ing,” issued an order on March 29, 2006, reducing defendant’s

felony conviction to a misdemeanor.

4 State v. Stark

Some years later, in 2008, police discovered a hand-

gun in defendant’s possession.1 Defendant subsequently was

charged, this time in Linn County Circuit Court, with being

a felon in possession of a firearm, ORS 166.270. Before the

matter came to trial, defendant moved in Marion County

Circuit Court for a judgment “memorializing” that his 2004

drug conviction had been for a misdemeanor. That court

issued a judgment stating that “defendant [was] guilty of

a misdemeanor *  * and has been since *  * 2004.” Later,

*  *

the court vacated that judgment and entered a different

judgment that was worded in terms of granting defendant’s

motion to reduce his felony conviction to a misdemeanor.

The latter judgment, dated January 5, 2009, purported to

be “nunc pro tunc” to March 29, 2006, the date of the order

reducing the 2004 felony conviction to a misdemeanor.

At trial, defendant moved for a judgment of acquit-

tal on the felon-in-possession charge, arguing that, in light

of the January 5, 2009, judgment that purported to retro-

actively reduce his conviction to a misdemeanor, the state

could not establish that, at the time that he possessed the

firearm in question, he was a “person who has been convicted

of a felony.” ORS 166.270(1). Relying on the statutory defi-

nition of that phrase at ORS 166.270(3), which excludes

circumstances in which “the court declared the conviction

to be a misdemeanor at the time of judgment,” defendant

argued that he was not a “person who has been convicted of

a felony” at the time that he was alleged to have possessed

the firearm. The trial court disagreed with defendant’s

interpretation of ORS 166.270(3) and denied his motion for

a judgment of acquittal. The felon-in-possession charge went

to the jury, which found defendant guilty.

Defendant appealed, arguing, among other things,

that the trial court had erred in denying his motion for a

judgment of acquittal. The Court of Appeals affirmed. The

court concluded that, when ORS 166.270(3)(a) provides that

a “conviction shall not be deemed a conviction of a felony if

*  * the court declared the conviction to be a misdemeanor

*

1

The gun was discovered in the course of a search of defendant’s car, which

occurred when defendant was stopped by police while driving in Linn County. The

validity of the search is not an issue before this court.

Cite as 354 Or 1 (2013) 5

at the time of judgment,” it refers only to declarations made

at the time of the original judgment of conviction. Thus, the

court reasoned, once a judgment is entered convicting a

person of a felony, a later order or judgment reducing that

conviction to a misdemeanor cannot alter the person’s status

as a felon for purposes of the felon-in-possession statute.

State v. Stark, 248 Or App 573, 580, 273 P3d 941 (2012).

Before this court, defendant argues that that inter-

pretation of ORS 166.270(3)(a) is incorrect. He contends that

the phrase “at the time of judgment” refers to the judgment

in effect at the time that the person charged with the crime

possessed the firearm. Employing that construction, defen-

dant contends that his 2004 conviction was adjudged to be a

misdemeanor conviction on March 29, 2006, before the felon-

in-possession issue arose. In that regard, defendant contends

that the order issued by the Marion County Circuit Court on

that date in fact was an erroneously labeled judgment, which

error the same court corrected, retroactively, in its January 5,

2009, “nunc pro tunc” judgment. Thus, this case presents two

questions, one pertaining to the proper construction of ORS

166.270(3)(a), and one pertaining to the timing and effect

of the March 29, 2006, order and the January 5, 2009, judg-

ment issued by the Marion County Circuit Court. For obvious

reasons, the latter question is relevant only if defendant’s

construction of ORS 166.270(3)(a) is correct.

We approach the first (statutory construction) issue

in our usual way, attempting to discern the legislature’s

intent from statute’s text and context and any helpful legis-

lative history. State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009). Our starting point is the text of ORS 166.270,

which provides, in part:

“(1)  Any person who has been convicted of a felony under

the law of this state or any other state, or who has been

convicted of a felony under the laws of the Government of the

United States, who owns or has in the person’s possession or

under the person’s custody or control any firearm commits

the crime of felon in possession of a firearm.

“* * * * *

“(3)  For purposes of this section, a person ‘has been con-

victed of a felony’ if, at the time of conviction for an offense,

6 State v. Stark

that offense was a felony under the law of the jurisdiction

in which it was committed. Such conviction shall not be

deemed a conviction of a felony if:

“(a)  The court declared the conviction to be a misde-

meanor at the time of judgment[.]”

(Emphasis added.) The parties’ disagreement focuses on the

emphasized wording, with the state reading the phrase “the

time of judgment” to mean the time of the original judgment

of conviction, and defendant reading it to mean the time of

the judgment of conviction in effect when the person is found

in possession of a firearm, including a judgment issued after

the original judgment.

Generally speaking, a “judgment” is “the court’s final

determination of the rights and obligations of the parties

in the case.” Black’s Law Dictionary 918 (9th ed 2009).

ORS 18.005(8) defines “judgment,” as used in ORS chapter

18, as “the concluding decision of a court on one or more

requests for relief in one or more actions, as reflected in a

judgment document.”2 (Emphasis added.) Although each

“judgment” that a court issues is, by definition, the “final” or

“concluding” determination of the matter decided, the fact

is that a court may issue a subsequent “judgment” that

supersedes the former—for example, a judgment to correct

a prior judgment, ORS 138.083(1), to comply with an appel-

late court’s remand, or to reduce a felony conviction to a mis-

demeanor conviction after a convicted defendant’s successful

completion of probation, ORS 161.705(d). Thus, when ORS

166.270(3)(a) refers to “the time of judgment,” the question

may arise: “Which judgment?”

Defendant argues that, as used in ORS 166.270(3)(a),

the term “judgment” denotes the last and, thus, final, judg-

ment that a court has entered at the time of the act that

constitutes the other necessary element of the crime of felon-

in-possession—possessing a firearm. Defendant contends

that, if the legislature had intended to refer to something

2

Although the definition of “judgment” in ORS 18.005(8) by its terms applies

to ORS chapter 18, a judgment document in a criminal action must comply with

ORS 18.038 and meet other statutory requirements. ORS 137.071(2).

Cite as 354 Or 1 (2013) 7

other than the judgment in effect at the time of possession,

it would have identified the intended time more specifically.

The state counters that, in this statutory context,

the word “judgment” in ORS 166.270(3)(a) necessarily refers

to the original judgment entered at the time of conviction.

The state derives that conclusion from the repeated use of

the definite article “the” in the phrase “the court declared

the conviction to be a misdemeanor at the time of judgment.”

(Emphases added.) In the state’s view, that phrasing shows

that the legislature had in mind a declaration by a particular

court at a particular time, and not any judgment that a court

might later enter. The state further argues that, because

the introductory wording that precedes ORS 166.270(3)(a)

refers to “the time of conviction for an offense,” it is reason-

able to assume that the legislature had that same time in

mind when it referred in paragraph (3)(a) to “the time of

judgment.”

The state is correct that ORS 166.320(3) includes the

phrase “at the time of conviction”: It provides that a person

“has been convicted of a felony if, at the time of conviction

for an offense, that offense was a felony under the law of the

jurisdiction in which it was committed.” (Emphasis added.)

Paragraph (3)(a) then provides that a conviction shall not be

deemed a felony conviction if the court declared the person’s

conviction to be a misdemeanor “at the time of judgment.”

As we see it, the “time of conviction” phrase in subsection (3)

only relates to the condition necessary to make a conviction

a felony conviction (the offense must be a felony under the

law of the jurisdiction in which it was committed at the time

it was committed) and not to the exemption in paragraph

(3)(a) for a felony conviction that a court has declared to

be a misdemeanor. In fact, the legislature’s use of entirely

different time references in those provisions may indicate

that the legislature did not equate “the time of conviction”

with “the time of judgment.”

Thus, although we agree with the state that the

phrasing of ORS 166.270(3)(a) suggests an intent to refer to a

8 State v. Stark

particular time, we do not think that the legislature intended

to require that a court’s declaration occur only “at the time

of conviction.” So understood, the legislature’s phrasing is

not contrary to defendant’s proposed interpretation. Under

defendant’s interpretation, a court may make the necessary

declaration not only when the court first enters a judgment

of conviction, but also when the court enters a subsequent

judgment categorizing the conviction as a misdemeanor. In

either circumstance, the court declares the conviction to be a

misdemeanor at the time of judgment.

Defendant’s interpretation becomes even more com-

pelling, and the state’s less so, when considered in the con-

text of other statutes that were in effect at the time that

ORS 166.270(3)(a) was enacted.3 Two of those statutes are

particularly relevant—ORS 161.585 (1987) 4 and ORS 161.705

3

ORS 166.270(3)(a) was enacted, in its present form, in 1989. Or Laws 1989,

ch 839, § 4.

4

ORS 161.585 (1987) provided:

“(1)  When a crime punishable as a felony is also punishable by imprison-

ment for a maximum term of one year or by a fine, the crime shall be classed

as a misdemeanor if the court imposes a punishment other than imprisonment

under ORS 137.124(1).

“(2)  Notwithstanding the provisions of ORS 161.525, upon conviction of

a crime punishable as described in subsection (1) of this section, the crime is

a felony for all purposes until one of the following events occurs, after which

occurrence the crime is a misdemeanor for all purposes:

“(a)  Without granting probation, the court imposes a sentence of impris-

onment other than to the legal and physical custody of the Department of

Corrections.

“(b)  Without granting probation, the court imposes a fine.

“(c)  Upon revocation of probation, the court imposes a sentence of impris-

onment other than to the legal and physical custody of the Department of

Corrections.

“(d)  Upon revocation of probation, the court imposes a fine.

“(e)  The Court declares the offense to be a misdemeanor, either at the time

of granting probation, upon suspension of imposition of sentence, or on appli-

cation of defendant or the probation officer of the defendant thereafter.

“(f)  The court grants probation to the defendant without imposition of sen-

tence upon conviction and defendant is thereafter discharged without sentence.

“(g)  Without granting probation and without imposing sentence, the court

declares the offense to be a misdemeanor and discharges the defendant.”

ORS 161.585 (1987) was amended by the same legislature that enacted the present

wording of ORS 166.270(3)(a), to make it applicable “only to persons convicted of a

felony committed prior to November 1, 1989.” Or Laws 1989, ch 790, § 52. Subse-

quent legislatures made minor changes that are not relevant to the present issue.

Or Laws 1993, ch 14, § 18; Or Laws 2005, ch 264, § 15.

Cite as 354 Or 1 (2013) 9

(1987).5 Under both of those statutes, certain crimes that other-

wise would be classified as felonies could, under described

circumstances, be classified as misdemeanors. ORS 161.585

(1987) generally addressed the effect of certain sentencing

decisions on the conviction’s classification. Paragraphs (2)(a)

to (d) and (f) of that statute provided that a felony conviction

could be reduced to a misdemeanor conviction at the time of,

and by virtue of, sentencing decisions and subsequent events

that effectively precluded imprisonment in a Department

of Corrections facility. Those paragraphs did not require a

particular decision by the court that the offense should be

treated as a misdemeanor; rather, the reduction occurred

by operation of law. In contrast, ORS 161.585(2)(e) and (g)

(1987) provided that a court could decide to reduce a felony

conviction to a misdemeanor conviction by imposing no

sentence or a sentence other than imprisonment and then

expressly “declar[ing]” the conviction to be a misdemeanor.

At least one of those provisions—paragraph (2)(e)—con-

templated that the court could make such a declaration after

the original judgment of conviction and sentence.

ORS 161.705 (1987) also gave (and continues to

give) a trial court authority to reduce a felony conviction to a

misdemeanor conviction, but did so by authorizing the court

5

ORS 161.705 (1987) provided:

“(1) Notwithstanding ORS 161.525, the court may enter judgment of

conviction for a Class A misdemeanor and make disposition accordingly when:

“(a)  A person is convicted of any Class C felony; or

“(b)  A person is convicted of a Class B felony pursuant to ORS 475.992(2)(a);

or

“(c)  A person is convicted of the Class B felony of possession of marijuana

pursuant to ORS 475.992(2)(4)(a); or

“(d)  A person convicted of any of the felonies described in paragraph (a)

to (c) of this subsection, or of a Class A felony pursuant to ORS 166.720, has

successfully completed a sentence of probation; and

“(e)  The court, considering the nature and circumstances of the crime and

the history and character of the defendant, believes that it would be unduly

harsh to sentence the defendant for a felony.

“(f)  This section does not apply, however, in cases subject to ORS 475.995.”

ORS 161.705 has since been amended (1) to remove the exception set out

in paragraph (f) above, Or Laws 2005, ch 708, § 48; and (2) to clarify that the

additional requirement set out at paragraph (e), that is, the requirement that the

court believe that it would be unduly harsh to sentence the defendant for a felony,

applies to each of the four preceding paragraphs, Or Laws 2009, ch 610, § 2.

10 State v. Stark

to “enter a judgment” altering the classification of a defen-

dant’s offense: Such reduction could occur only if the trial

court, considering the circumstances, thought “that it would

be unduly harsh to sentence the defendant for a felony.” ORS

161.705(1)(e) (1987).

Those statutes demonstrate that, before 1989 when

the current version of ORS 166.270(3)(a) was enacted, a

judgment convicting a defendant of a felony and imposing

a sentence of probation could be superseded, in certain

circumstances, by a later declaration or judgment entered

after the sentence of probation was completed, changing the

conviction to a misdemeanor. The 1989 legislative assembly

that enacted the present version of ORS 166.270(3) presum-

ably was aware of those statutes and the possibility that a

subsequent judgment could reduce what originally had been

adjudged a felony conviction to a misdemeanor conviction.

See State v. Reams, 292 Or 1, 8, 636 P2d 913 (1981) (court

assumes that the legislature, at time of adoption of new

criminal code, was aware of existing law in Oregon on sub-

ject); State v. Waterhouse, 209 Or 424, 436, 307 P2d 327

(1957) (“Knowledge on the part of the legislature of *  * *

earlier enactments is presumed”). Cf. State v. Clevenger, 297

Or 234, 244, 683 P2d 1360 (1984) (legislature is presumed

to be aware of the Supreme Court’s decisions). Insofar as the

unmodified term “judgment” can pertain to both original

and subsequent judgments, it would seem that, if the 1989

legislative assembly had intended to make only the original

felony judgment, and not the subsequent misdemeanor judg-

ment, relevant to a determination of a person’s status as

a felon for purposes of that statute, it would have signaled

that intent instead of using the more general term “judg-

ment.”6 The legislature’s omission of any such signal, in

that statutory context, suggests that the legislature did not

intend that the term “judgment” mean only the original

judgment.7

6

We note, in that regard, that when courts refer to judgments other than the

most recent and, thus, most final judgment, they tend to use more specific terms,

such as “original judgment.” See, e.g., State v. Ainsworth, 346 Or 524, 526, 213 P3d

1225 (2009) (referring to “original judgment”); State v. Estey, 247 Or App 25, 27,

268 P3d 772 (2011) (same).

7

The 1989 legislative assembly that enacted the current wording of ORS

166.270(3)(a) also presumably would have been aware that any judgment of

Cite as 354 Or 1 (2013) 11

The state identifies another statute, ORS 166.274,

as relevant context for interpreting the phrase “the time of

judgment” in ORS 177.270(3)(a). That statute provides that

a person who is barred from possessing a firearm under

ORS 166.270 may file a petition for relief from the bar in

the circuit court for the person’s county of residence, ORS

166.274(1), (2), and may be granted such relief if he or she

demonstrates, “by clear and convincing evidence, that the

petitioner does not pose a threat to the safety of the public or

the petitioner,” ORS 166.274(7). The state argues that that

provision demonstrates that the legislature intended that

convicted felons follow that prescribed procedure to have

their gun-possession rights restored and that defendant’s

expansive reading of ORS 166.270(3)(a) would frustrate

that legislative intent by allowing felons to obtain relief

simply by requesting misdemeanor treatment.

The state’s argument has the tail wagging the dog:

It seeks to treat a clearly secondary statute, pertaining to

relief from the prohibition on felons possessing firearms, as

dictating the meaning of the prohibition itself (and the crime

that results from its violation). There is no reason to think

that the legislature’s intent that “any person who has been

convicted of a felony” be required to follow the procedure at

ORS 166.274 to have their gun-possession rights restored

conviction of a felony could be overturned or set aside by a higher court, and that

such a court might even enter a judgment reducing the conviction to a misdemeanor.

But if the state’s interpretation of the wording is taken to its natural conclusion,

a subsequent appellate judgment would not be relevant in determining whether a

person “has been convicted of a felony” for purposes of ORS 166.270. The state sug-

gests that that would not be so because, if set aside, a felony conviction is treated

as void ab initio. But this court rejected a similar argument in Bailey v. Lampert,

342 Or 321, 153 P3d 95 (2007), when the defendant in that case sought to set aside

his felon-in-possession conviction on the ground that, subsequent to the felon-

in-possession conviction, the underlying felony conviction had been reversed.

The defendant argued that, because the underlying felony conviction was void

ab initio, he had never been a “person who ha[d] been convicted of a felony” within

the meaning of ORS 166.270. This court concluded that, in ORS 166.270, “the

legislature intended to, and did, focus on a person’s status at the time that he or

she possessed a firearm,” even if that status might later change because the prior

felony conviction is reversed or set aside. Id. at 327. Although Bailey does not

address the particular subsection of the statute that is at issue in the present case,

it demonstrates that, if the state were correct that the statute refers to only the

time of the original judgment, a person whose conviction was later overturned by

a court nevertheless would be a person who “has been convicted of a felony:” The

person could not claim that the original conviction was void ab initio.

12 State v. Stark

had any bearing on its thinking about who would qualify as

a “person who has been convicted of a felony.” The legislature

could have decided that a trial court’s reduction of a felony

conviction to a misdemeanor should remove that person

from the prohibition on firearm possession at ORS 166.270

altogether, and at the same time reasonably could have

provided a path for persons who remain felons for purposes

of the statute to restore their prior right to possess firearms.

Although, at this point, the textual and contextual

clues point to the interpretation of ORS 166.270(3)(a) for

which defendant contends, we still have not addressed the

legislative history that the state has brought to our attention.

Gaines, 346 Or 171-72. We turn to that legislative history

now.

As we briefly noted above, 354 Or at 8 n 3, ORS

166.270(3)(a) was enacted in its current form in 1989. Before

then, subsections (1) and (2) of ORS 166.270 were similar to

their current versions, but subsection (3) provided:

“For the purposes of this section, a person ‘has been

convicted of a felony’ if, at the time of conviction for an

offense, that offense was a felony under the law of the

jurisdiction in which it was committed. Provided, however,

that such conviction shall not be deemed a conviction of a

felony if:

“(a)  At the time of conviction, and pursuant to the law

of the jurisdiction in which the offense occurred, the offense

was made a misdemeanor by the type or manner of sentence

actually imposed.”

(Emphasis added.) The original 1989 bill to amend ORS

166.270, HB 3470, would simply have removed all the

italicized wording, abolishing the then-existing exception

for reductions from felony to misdemeanor status made “by

the type or manner of sentence actually imposed.” One of the

proponents of that change, Sheriff Burks of Lane County,

explained to the House Judicial Committee that the change

was proposed because members of the law enforcement com-

munity were

“concerned about the definition of a felon *  * [because]

*

there apparently are certain circumstances when people are

Cite as 354 Or 1 (2013) 13

convicted [as] felons but sentenced as * * * misdemeanant[s],

and we wanted to eliminate that possibility. If they’re

convicted of a felony, then they are a felon, that’s what we

wanted.”

Tape Recording, House Judiciary Committee, Natural

Resources Subcommittee, HB 3470, May 10, 1989, Tape 23,

Side A (statement of Sheriff Burks).

However, as the bill went through the Senate

Judiciary Committee, it was modified to provide a new and

different exception to the broader definition of a “person

[who] has been convicted of a felony”—the one that now

appears in paragraph (3)(a) and that is the subject of this

review:

“(3)  *  * Such conviction shall not be deemed a con-

*

viction of a felony if:

“(a)  The court declared the conviction to be a misde-

meanor at the time of judgment[.]”

When the modified wording was introduced to the Senate

Judiciary Committee, the committee’s legislative counsel,

Morris, explained at length that a felony conviction could

become a misdemeanor either through the type of sentence

imposed or by the trial court declaring the misdemeanor

to be a felony, and that, under the then-existing felon-in-

possession statute, if a felony conviction became a misde-

meanor under either method, then the felon-in-possession

statute did not apply. Tape Recording, Senate Judiciary

Committee, HB 3470, June 30, 1989, Tape 259, Side A

(statement of Counsel Morris). Morris went on to explain

how the original bill (which entirely removed the exception

he had described) and the amended bill would operate if

enacted:

“What the bill as it came to us did would abolish

things becoming misdemeanors by operation of law, and,

arguably—it’s unclear—abolish the *  * effect on the fire-

*

arms law when the judge declares it a misdemeanor.

“What we’ve done with the changes from yesterday

and today, we’ve made it so if a [conviction] becomes a

misdemeanor by operation of law, you’re still in trouble for

the gun laws. But we’ve made it clear, and you’ll see the

14 State v. Stark

new language on lines 15 and 26, that if the court feels

that special circumstances exist that justify declaring it a

misdemeanor, you’re in good shape for the gun law.”

Id. Finally, in response to a question about why the amended

bill drew that distinction, Morris stated:

“We felt that when a felony becomes a misdemeanor by

operation of law, that it does not justify getting the person

back in good shape for the gun law. But if a judge thinks that

circumstances are such that it should be a misdemeanor

from jump street, then you should be okay for gun laws.

So we basically took the middle ground with the changes

that we’ve made, as opposed to bringing everybody into the

[felon] in possession statute as the bill did.”

Id.

Defendant observes that a persistent theme runs

through all the discussions of the existing statute and the

proposed changes quoted above: The idea that a felony con-

viction may become a misdemeanor conviction either by

operation of law or by an act of judicial discretion. Defendant

contends that it is clear from the quoted history that, when

the legislature finally settled on the wording that became the

present statute, it intended to draw a line between the two

methods, excepting from the prohibition in the statute only

those persons whose felony convictions had been reduced to

misdemeanors through an act of judicial discretion.

The state argues, however, that one of Morris’s

last statements to the Senate Judiciary Committee—that

a defendant “should be ok for gun laws” if a judge “thinks

that circumstances are such that [a felony] should be a

misdemeanor from jump street”8 —shows that the exception

to the felon-in-possession law that the legislature intended

to enact was more narrow: It intended to except only persons

whose felony convictions were specifically declared by the

court to be misdemeanors at the outset. Thus, according to the

state, the phrase “the time of judgment” in ORS 166.270(3)(a)

must refer to the time of the judgment that was issued when

defendant first was convicted and sentenced.

8

According to Richard A. Spears, Dictionary of American Slang and Colloquial

Expressions (4th ed 2007), “jump street” means “the beginning; the start (of some-

thing) * * * : Way back at jump street, I spotted you as a troublemaker.”

Cite as 354 Or 1 (2013) 15

We agree with defendant, however, that the fleeting

“jump street” reference in Morris’s statement is inadequate

support for the state’s interpretation of the phrase in ORS

166.270(3)(a). First, there is some possibility that Morris was

simply attempting to provide an example of a circumstance

in which a judge’s decision to reduce a defendant’s conviction

to a misdemeanor could remove the defendant from the

reach of ORS 166.270. In that regard, we note that, although

Morris explained that, “if a judge thinks that circumstances

are such that it should be a misdemeanor from jump street,

then [a person] should be okay for gun law,” he did not state

that a similar determination made in other circumstances

should not be treated similarly. Furthermore, in the context

of Morris’s overall comments, the “jump street” reference is

an anomaly. Morris had explained the bill and its antece-

dents entirely in terms of the distinction between the two

ways in which a felony conviction might become a misde-

meanor conviction (by operation of law and by judicial declar-

ation), and had never suggested that an additional distinc-

tion—based on the timing of a judicial declaration reducing

a conviction to misdemeanor status—was relevant.9 It fol-

lows that Morris’s comments about the effect of the pro-

posed amendments to ORS 166.270(3), although useful for

determining what the legislature intended with respect to

Morris’s primary point (the distinction between reductions

to misdemeanor status occurring by operation of law and

by considered judicial declaration), do not reflect the legis-

lature’s thinking with respect to the timing of any judicial

declaration reducing a felony conviction to a misdemeanor

conviction.

9

It is true that, earlier in his comments, Morris had also stated that the

“judicial declaration” method of reducing a felony conviction to a misdemeanor

conviction occurred “at the time of sentencing.” However, the statutes in effect at

the time in fact clearly contemplated that a felony conviction could be reduced to a

misdemeanor by judicial declaration at the time of sentencing or at a later time. See

ORS 161.585(2)(e) (1987) (court could declare an offense to be a misdemeanor at

time court grants probation “or thereafter”); ORS 161.705(1)(d) (1987) (court may

enter judgment for misdemeanor when person convicted has successfully com-

pleted sentence of probation, if court believes felony conviction is unduly harsh).

We assume that the legislature had a correct understanding of the existing law,

and the legislative history does not establish that the legislature relied on Morris’s

misstatement.

16 State v. Stark

The state argues that Morris’s comments are signif-

icant for another reason: They show that the legislature con-

sidered the wording of the amended bill (which was enacted)

to be a “middle ground” between the then-existing exception

and the proposal in the original bill to entirely eliminate that

exception. The state contends that post-sentencing reduc-

tions from felony to misdemeanor status were not an option

under the then-existing statutory exception and that, in light

of that fact, “neither Morris—nor the legislature—would

have understood that option to be part of the compromise.”

There are at least two problems with the state’s argu-

ment. First, it assumes a point that is far from established—

that post-conviction reductions were not an option under the

law that existed prior to the 1989 amendments. Although

the state plausibly interprets the words of the pre-1989 ver-

sion of ORS 166.270(3) as excepting only reductions to mis-

demeanor status occurring at the time of an original judg-

ment (because the reduction had to occur “at the time of

conviction” through the “sentence actually imposed”), that is

not the only reasonable interpretation of that statute, at

least when the statute is read in the context of other statutes

that were in existence at the time.10

Second, although Morris spoke of the amended ver-

sion of HB 3470 as a “middle ground,” he never specifically

identified the pre-1989 version of ORS 166.270 as one of

the baselines for that assessment. It is conceivable that he

was referring to a “middle ground” between Sheriff Burks’

position that, “if they are convicted of a felony, then they are

a felon” and cannot possess a firearm, and the position that,

if a felony conviction is reduced to a misdemeanor—whether

by a judge or by operation of law—the person is no longer

deemed to be a felon and is permitted to possess a firearm.

10

As we already have noted, 354 Or at 8-10, two statutes then in existence

authorized post-sentencing reduction of a felony conviction to misdemeanor status.

In the absence of any clear decision to the contrary, it was at least arguable that, in

1989, ORS 166.270(3) (1987) spoke to only reductions that occurred by operation of

law as a result of the “sentence actually imposed” and did not pertain to or affect

a trial court’s separate authority to declare a reduction to misdemeanor status

under those statutes. Morris might have been speaking to that possibility when he

testified that, if the legislature adopted the amendment as originally proposed, it

would only “arguably—it’s unclear, abolish the * * * effect on the firearms law when

the judge declares it a misdemeanor.”

Cite as 354 Or 1 (2013) 17

The position that the legislature adopted—that only a person

whose felony conviction was reduced to a misdemeanor by

a judge may possess a firearm—clearly would fall into the

middle ground between those two positions.

In summary, Morris’s “jump street” and “middle

ground” comments do not convince us that the state’s inter-

pretation of ORS 166.270(3)(a) is the correct one. The only

conclusion that we legitimately can draw from Morris’s

testimony is that, in enacting the amended version of HB

3470, the legislature recognized that a felony conviction

could be reduced to a misdemeanor by operation of law or by a

considered judicial declaration, and the legislature intended

to except from the operation of the felon-in-possession statute

only convictions reduced by the latter method. Thus, the

legislative history that the parties have offered is consistent

with the conclusion that we have tentatively drawn from

the text and context of ORS 166.270(3)(a). The legislature

used the general term “judgment” and not a qualified term

such as “original judgment.” Particularly because the legis-

lature was aware that the law permitted courts to enter

subsequent judgments declaring a prior felony conviction to

be a misdemeanor, we would have expected the legislature

to explicitly exclude such judgments from the exception to

the felon-in-possession statute if that is what it intended.

For all those reasons, we conclude that the phrase “at the

time of judgment” in ORS 166.270(3)(a) refers to the time of

the judgment of conviction that was in effect at the time of

the alleged firearm possession.

Having settled that interpretive issue, we must

determine whether defendant was a person who “has been

convicted of a felony” at the time that he possessed the

firearm in question. Because ORS 166.270(3)(a) provides

that a conviction shall not be deemed a felony conviction if,

“at the time of judgment,” the court declared the conviction

to be a misdemeanor, it is clear that the court’s declaration

must be incorporated into or concurrent with a judgment

to fall within the scope of the exception. And, because ORS

166.270 is concerned with a person’s status as a felon at the

time that he or she possessed the firearm, it requires that

18 State v. Stark

the judgment incorporating or concurrent with the declar-

ation be in effect when the person possesses the firearm.

See Bailey v. Lampert, 342 Or 321, 327, 153 P3d 95 (2007)

(judgment setting aside a felony conviction issued after time

of possession of firearm did not negate defendant’s status as

a felon at the time he possessed the firearm).

When police found a gun in defendant’s car in 2008,

the only judgment in the record in the 2004 Marion County

case was the original judgment, finding defendant guilty of

felony possession of a controlled substance and sentencing

defendant to a term of probation. The record also contained

an order, issued on March 29, 2006, that granted defendant’s

motion for an order reducing his felony conviction to a misde-

meanor. However, at the time that the order was entered, it

was not incorporated in or concurrent with a judgment.11 It

was not until after the gun was discovered and defendant

was charged under ORS 166.270 that the Marion County

Circuit Court issued, on defendant’s motion, a judgment

reducing the felony conviction to a misdemeanor. The judg-

ment specified that the reduction was nunc pro tunc to the

date of the March 29, 2006, order.

Without the nunc pro tunc provision, the latter judg-

ment clearly could not advance defendant’s effort to place

himself within the exception at ORS 166.270(3)(a): ORS

166.270 is concerned with a person’s status as a felon at the

time he or she possesses a firearm, even if that status might

change at some later point. Bailey, 342 Or at 327-28. Defen-

dant argues, however, that the nunc pro tunc wording

made all the difference: It meant that a judgment declaring

defendant’s 2004 felony conviction to be a misdemeanor was

in effect in 2008 before he possessed a firearm.

11

Defendant may have thought that the order was sufficient to nullify his felony

conviction for purposes of the felon-in-possession statute. But the fact remains

that the exception set out in ORS 166.270(3)(a) requires that the declaration

reducing a felony conviction to a misdemeanor be made “at the time of judgment.”

Although it may seem unfair, defendant’s belief that he was a misdemeanant, not

a felon, is irrelevant under ORS 166.270: As this court recently stated in State

v. Rainoldi, 351 Or 486, 506, 268 P3d 568 (2011), that statute “exhibits a clear

legislative intent to dispense with the culpable mental state requirement as to the

element that a defendant ‘has been convicted of a felony.’ ”

Cite as 354 Or 1 (2013) 19

In that regard, defendant observes that, in its

original judgment, the Multnomah County Circuit Court

expressly invited defendant to apply for misdemeanant

status upon completion of probation and followed through on

its offer to reduce the conviction to a misdemeanor in its

March 29, 2006, “order.” Defendant argues that, given that

sequence of events, the court’s “order” in fact was a “judg-

ment”—the court’s final decision on defendant’s status as

a felon. Defendant also suggests that ORS 161.70512 requires

trial courts to issue any decision reducing a felony conviction

to a misdemeanor conviction as a superseding judgment.

From that standpoint, defendant argues that, regardless of

the facts that he, himself, moved for “an order reducing the

charge in the present case from a felony to a misdemeanor”

and that the trial court captioned its decision on that

motion as an “order,” the decision in fact was a “judgment,”

and the caption that appeared on the document memo-

rializing that judgment was a mistake. Finally, defendant

contends that the circuit court’s 2009 entry of a properly

captioned judgment reducing defendant’s conviction from a

felony to a misdemeanor “nunc pro tunc March 29, 2006,” was

a proper exercise of the court’s inherent power to “correct

clerical errors at a later time so that the record reflects what

actually occurred at an earlier time.” State ex rel Juv. Dept.

v. Dreyer, 328 Or 332, 339, 976 P2d 1123 (1999). In other

words, defendant argues, the 2009 nunc pro tunc judgment

establishes that the March 29, 2006, “order” in fact was a

judgment declaring defendant’s felony conviction to be a

misdemeanor.

We have stated that

“[t]he function of a nunc pro tunc entry is to make a record

of what was previously done, but not then entered; not to

make an order now for then, but to enter now for then an

order previously made. * * * Such an order is effective only

when it records a previously omitted truth—it does not

create, but only speaks what has been done.”

12

Defendant adverts to the current version of ORS 161.705, which in all rele-

vant respects is identical to the 1987 version of that statute, set out above, 354 Or

at 9 n 5.

20 State v. Stark

Gillespie v. Kononen, 310 Or 272, 276 n 7, 797 P2d 361 (1990).

Although defendant pays lip service to that rule by describ-

ing the 2009 nunc pro tunc judgment as correcting a mere

labeling error, neither the facts, nor defendant’s explanation,

supports that description.

Certainly, there is no basis for arguing that the

2006 order comported with the formal requirements of a

judgment in a criminal action. ORS 137.071(2) requires a

judgment document in a criminal action to comply with

ORS 18.038 and to provide additional specific information

about various aspects of the proceedings and the court’s

decisions, including a clear specification of the court’s dis-

position for each charge. To comply with ORS 18.038, the

judgment document must “be plainly titled as a judgment.”

ORS 18.038(1). The 2006 order is not so titled. It is titled

an “order” and is expressed entirely in terms of granting a

motion: “It is hereby ordered that Defendant[’s] motion to

reduce [his] felony conviction to a misdemeanor is granted.”

The order also contains none of the additional information

required of judgment documents by ORS 137.071(2).

Defendant suggests that such formalities are irrele-

vant—that the proper focus is on the trial court’s decision

and not the document that memorializes it. He contends

that the trial court’s decision on March 29, 2006, was, in

every respect, a judgment that finally disposed of his 2004

conviction, and that the 2009 “nunc pro tunc” judgment

merely recognizes that “truth” by correcting the original,

erroneous documentation of that decision. But defendant

does not point to any evidence in the record showing that

the court’s decision (as opposed to the documentation of

the decision) in fact was a judgment.13 Defendant does not

assert, for instance, that he had sought a “judgment” in

2006 or that, due to a clerical error, the word “order” was

mistakenly used even though the trial court indicated that

13

We understand the distinction that defendant is attempting to make, but

we are not persuaded that it can have any real world significance in this context.

By definition, a court’s “judgment” is reflected in a “judgment document.” See ORS

18.005(8) (“ judgment’ means the concluding decision of a court on one or more

‘

requests for relief in one or more actions, as reflected in a judgment document”);

ORS 137.071(2) (requiring that judgment document in criminal action comply with

ORS 18.038). Those statutes would seem to make it difficult, if not impossible, to

show that a decision that is not memorialized in a judgment in fact is a judgment.

Cite as 354 Or 1 (2013) 21

a “judgment” should be entered. Instead, defendant asserts

that the decision should have been issued as a judgment,

because (1) ORS 161.705 provides that, to reduce a conviction

to a misdemeanor under paragraph (1)(d) after a defendant

successfully completes probation, the court is “required” to

enter a superseding judgment; and (2) the decision was the

court’s final determination resolving the issue of the proper

classification of defendant’s conviction. But even if those

assertions were based on correct statements of the law,14 they

would not assist defendant. That is so because they speak to

what defendant should have requested and what the court

should have done, rather than what defendant did in fact

request and what the court did in fact do. They do not estab-

lish that the 2009 judgment “record[ed] a previously omit-

ted truth,” as a nunc pro tunc entry must. Gillespie, 310 Or

at 276 n 7.

We conclude that the nunc pro tunc wording in the

circuit court’s 2009 judgment did not, and could not, trans-

form its prior 2006 order into a judgment. It follows that,

when police found a gun in defendant’s possession in 2008,

the only judgment in effect was the original judgment con-

victing defendant of a felony. The trial court did not err

in denying defendant’s motion for a judgment of acquittal,

which was based on the theory that defendant was not a

felon within the meaning of ORS 166.270(3) at the relevant

time.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

14

As we understand them, defendant’s assertions are not based on correct

statements of the law. Insofar as ORS 161.705 provides that a court “may enter

judgment of conviction for a Class A misdemeanor” in the described circumstances,

it clearly does not “require” entry of a judgment. And, whether or not the trial

court’s decision had the effect of finally disposing of an issue in the criminal action

against defendant depends, at least in part, on whether it in fact was a judgment.