Opinion
10-84-06170; 10-84-10009; 10-84-06957; CA A35376 (Control); A35377; A35378
Argued and submitted September 30, 1985.
Affirmed January 29, 1986. Reconsideration denied March 7, 1986. Petition for review denied April 15, 1986 ( 300 Or. 722).
Appeal from Circuit Court, Lane County, Edwin E. Allen, Judge.
John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
VAN HOOMISSEN, J.
Affirmed.
In these three consolidated cases, defendant appeals the sentences imposed by the trial court. The issue is whether the court had the authority to impose terms of imprisonment in the county jail as conditions of continued probation, to be served after a prison term defendant was sentenced to serve because of his conviction for other felonies. We affirm.
On December 10, 1984, defendant was convicted of burglary in case No. 10-84-06170. He was placed on five years probation. Also on December 10, defendant was convicted of felony theft in case No. 10-84-06957. Again, he was placed on five years probation. On December 19, 1984, he committed two new felonies. He pled guilty to those in case No. 10-84-10009 on January 14, 1985.
On March 5, 1985, the circuit court merged defendant's convictions in case No. 10-84-10009 and sentenced him to a maximum term of five years with a two and one-half year minimum term. The court continued him on probation in the two earlier cases but imposed as additional conditions that, in case No. 10-84-06170, he serve one year in the county jail consecutive to the prison term imposed in case No. 10-84-10009 and that, in case No. 10-84-06957, he serve an additional year in the county jail consecutive to the sentence imposed in case No. 10-84-06170, including the county jail time.
Defendant contends that the circuit court erred in ordering consecutive probationary terms to be served consecutive to his prison sentence. ORS 137.540(6) provides: "The court may at any time modify the conditions of probation." The trial court had authority to impose new conditions of probation. State v. Cole, 66 Or. App. 203, 208, 673 P.2d 587 (1983), rev den 296 Or. 486 (1984). Further, the court had authority to revoke defendant's probation on the basis of his conviction of new crimes and to impose a sentence running consecutively to the sentence imposed for the new crime committed during probation. State v. Monahan, 29 Or. App. 791, 564 P.2d 1374 (1977).
Defendant's reliance on State v. Mastrilli, 62 Or. App. 464, 661 P.2d 124 (1983), State v. Ward, 59 Or. App. 42, 650 P.2d 163 (1982) and State v. DeChenne, 39 Or. App. 901, 594 P.2d 831 (1979) is misplaced. Those cases involved attempts to impose sentences consecutive to other sentences that had not yet been imposed.
Defendant contends that any jail time imposed as a condition of probation must be ordered served at the beginning of a probationary period. He argues that placing a jail term at the end of a probationary period violates Oregon Constitution, Article I, sections 15 and 16. We disagree. Those sections do not require that probation conditions imposing a jail term must be served "up front," and, in practice, routinely they are not. Ordering that a jail term be served later is permissible as being within the statutory and inherent sentencing powers of the court. See State v. Jones, 250 Or. 59, 440 P.2d 371 (1968); State v. Haywood, 73 Or. App. 6, 697 P.2d 977 (1985); State v. Holmes, 62 Or. App. 652, 661 P.2d 556, rev den 295 Or. 297 (1983). Similarly, the court had authority to order that the jail terms be served consecutively to each other.
Oregon Constitution, Article I, section 15, provides:
"Laws for the punishment of crime shall be founded on the principles of reformation, and not vindictive justice."
Oregon Constitution, Article I, section 16, provides in part:
"Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense."
For example, trial judges often order jail terms to be served on weekends as a condition of probation.
Defendant contends that placing consecutive jail terms at the end of his prison sentence also violates Oregon Constitution, Article I, sections 15 and 16. Again, we disagree. The trial court stated, inter alia, that the sentences were imposed for the protection of society. That certainly is a legitimate goal of sentencing. See Norris v. Cupp, 67 Or. App. 393, 678 P.2d 756, rev den 297 Or. 824 (1984); State v. Lippert, 53 Or. App. 358, 632 P.2d 28, rev den 291 Or. 893 (1981). We find no merit in defendant's cruel and unusual punishment argument. See State v. Dinkel, 34 Or. App. 375, 579 P.2d 245 (1978), rev den 285 Or. 195 (1979).
Defendant contends that the additional conditions of probation imposing jail time were not rationally related to the needs of effective probation. We conclude that the additional conditions were permissible, given that defendant committed two felonies within ten days after having been granted probation.
Defendant contends that, if he serves more than three years in prison in No. 10-84-10009, the length of his probation in the other cases could exceed five years. He relies on State v. Mock, 67 Or. App. 532, 679 P.2d 330 (1984). Defendant's probation may not exceed five years, but that is not in issue in this appeal. ORS 137.010.
Affirmed.