State v. Thomas , 99 Or. App. 32 ( 1989 )

EDMONDS, J.

Defendant appeals from a judgment finding her guilty of theft in the third degree, a violation. ORS 164.043. Before defendant pled not guilty to the charge, the trial court, pursuant to ORS 161.565(2),¹ amended the complaint to convert the charge from a misdemeanor to a violation. In a trial to the court, she was found guilty.² Defendant argues that she was denied her constitutional rights under Article I, section 11, of the Oregon Constitution and the Fourteenth Amendment as a defendant in a criminal proceeding. We reverse.³

ORS 161.565(2) empowered the court to reduce a misdemeanor to a violation on a case-by-case basis by following a specified procedure. The legislature is not prohibited from decriminalizing a criminal offense. However, the legislature cannot avoid the constitutional guarantees that attach to a criminal prosecution by decriminalizing conduct while retaining the consequences that result from prosecution and conviction for a crime. Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977). The issue, therefore, is whether a prosecution for theft III may be tried as a violation without the constitutional safeguards guaranteed in criminal prosecutions. If theft III, as a violation, retains traits that characterize a criminal prosecution, then defendant’s rights to a jury trial and to have her guilt proven beyond a reasonable doubt cannot be abrogated by the legislature.

In Brown, the court established five factors that must be balanced in deciding this issue. No single element is conclusive. 280 Or at 102. The factors are:

(1) The type of the offense;

(2) The nature of the penalty;

(3) The collateral consequences associated with a conviction;

(4) The punitive significance of the conviction to the community;

(5) The criminal type pre-trial practices such as arrest, physical restraint, search, booking and pre-trial detention.

The prohibition against theft is a cultural value that predates our constitutions and the common law. The prohibition has been carried into statutory enactments to the extent that, in Oregon today, ORS chapter 164 contains at least nine statutory offenses that include the word “theft” in their definition.⁴ At common law and by statute, a prosecution for theft has always required proof of “mens rea, ’’proof of guilt beyond a reasonable doubt and the right to a jury trial. Those factors weigh in favor of the argument that theft III, as a violation, retains its criminal characteristics.

The maximum penalty for theft III, as a violation, is a fine of $250. At the time of the adoption of the Oregon Constitution, petty offenses where the penalties were light did not have criminal connotations. See Behnke v. Jordan, 275 Or 199, 202, 550 P2d 736 (1976). As to collateral consequences, ORS 161.565(3) provides that a “conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime.” Both of those factors weigh in favor of the argument that the criminal characteristics of theft III as a misdemeanor are not retained when the charge is converted to a violation. See City of Portland v. Tuttle, 295 Or 524, 668 P2d 1197 (1983).

The fourth factor focuses on the stigma or condemnation that accompanies a conviction. “What distinguishes a criminal from a civil sanction * * * is the judgment of community condemnation which accompanies and justifies its imposition.” Hart, “The Aims of the Criminal Law,” 23 Law & Contemp Probs 401, 404 (1958). Non-penal sanctions do not inevitably dictate the community’s perception of the conviction. See Kennedy v. Mendoza-Martinez, 372 US 144, 168, 83 S Ct 554, 9 L Ed 2d 644 (1963). Rather, that perception is typically based more on societal values. This factor weighs in favor of defendant.

The final factor requires examination of the pre-trial practices associated with the application of ORS 161.565(2) to theft III. Because the arrest is initially for a misdemeanor, all of the procedures that accompany being arrested for a crime attach. It is only after the defendant is brought to court for arraignment and after the court modifies the charge that noncriminal processes come into play.

Having weighed each factor, without any one factor being dispositive, we conclude that, when ORS 161.565(2) is applied to ORS 164.043, a prosecution for theft III as a violation does not lose the traits that characterize a criminal prosecution. We are particularly persuaded by the factors pertaining to the type of offense and its social significance in the community. Our culture has always viewed theft as a crime and continues to do so. Because of that heritage, we believe it would be difficult for our society to discriminate between the significance of a conviction for theft III, a misdemeanor, with its attendant criminal connotations, and a conviction for decriminalized theft III, a violation. Accordingly, defendant was entitled to a jury trial and to have her guiltproven beyond a reasonable doubt.

Reversed and remanded for a new trial.

1 ORS 161.565(2) provided at the relevant time:

“Upon appearance of the defendant upon any misdemeanor charge other than a misdemeanor created under the Oregon Vehicle Code, and before asking under ORS 135.020 how the defendant pleads to the charge, the court may declare on the record its intention, absent objection by the district attorney, to treat the offense in the case as a violation. If the district attorney does not object to such treatment, the accusatory instrument shall be amended to denominate as a violation the offense in the case, and the offense, for purposes of the case, shall thereafter be treated as a violation, subject to a fine as provided in ORS 161.635 for violations. If the district attorney does object, the offense in such case shall thereafter continue to be treated as a crime. If the offense is denominated a violation pursuant to this subsection, the court shall, when it enters judgment in the case, clearly denominate the offense as a violation in the judgment order.”

It was amended by the 1989 legislature to delete the provision allowing the court to decide to treat the offense as a violation. The amended statute now requires the District Attorney to declare on the record whether or not he intends to treat the offense as a violation. A case proceeds as a violation unless the District Attorney affirmatively states that the case shall proceed as a misdemeanor. Or Laws 1989, ch 1053, § 17.

2 The trial court made this finding:

“I make a specific finding that I would find her guilty by a preponderance of the evidence, but if it were beyond a reasonable doubt I would enter a finding of not guilty.”

3 Because we hold that the prosecution of defendant continued to be criminal in nature, we do not consider her other arguments concerning the constitutionality of ORS 161.565(2) or reach her other assignments of error.

4 ORS 164.043-164.095; ORS 164.125.