Set Aside a Record That Was Punishable as a Felony or Misdemeanor in Oregon

State v. Johnson
Court of Appeals of Oregon
September 13, 2006

Holding: A petitioner may set aside his record of conviction or arrest when his crime is punishable as either a felony or a misdemeanor.

Why This Case is Important: Oregon Revised statutes section 137.225 establishes the requirements for setting aside a conviction or record of arrest. Subdivision five of section 137.225 states the applicable crimes that may be set aside, and the exceptions to those crimes. Among the crimes capable of being set aside are those that are punishable as either a felony or a misdemeanor.

These crimes are set forth in Oregon Revised statutes section 161.705. Section 161.705 states which crimes can be reduced from a felony to a misdemeanor. This case is important for explaining this particular law.

Section 161.705 has two subdivisions. The first subdivision establishes which crimes can be reduced. These crimes are a class C felony, a class B felony pursuant to ORS § 475.860 (the unlawful delivery of marijuana), or a class A felony pursuant to ORS § 166.720 (Racketeering activity unlawful). A person must fit in either of the above categories to be eligible for reduction of their crime.

The second subdivision of section 161.705 is preceded by an “and,” making the second subdivision a requirement for reduction. In other words, a person must fit into one of the categories in subdivision one, and meet the requirements of subdivision two of section 161.705. Subdivision two states the court has the discretion to reduce a felony to a class A misdemeanor when it considers the nature of the crime and the history of the defendant, and finds that the sentence of a felony would be unduly harsh.

If both of these requirements are not met, then a person’s crime cannot be reduced to a misdemeanor. As such, a crime that does not meet the requirements of section 161.705 is not a crime punishable as a felony or misdemeanor. Such a crime therefore is not eligible to be set aside.

Facts of This Case: In 1990, the defendant in this case pleaded guilty to the crime of delivery of a controlled substance, cocaine, a class B felony. In 2004, the defendant attempted to set aside his conviction pursuant to ORS § 137.225. The trial court ordered the defendant’s conviction be set aside in the interests of justice. The state appealed the trial court’s decision, arguing that the defendant’s conviction was not statutorily eligible for expungement.

The court of appeals of Oregon reversed the trial court’s decision. The court of appeals disagreed with the defendant’s arguments. The defendant attempted to set aside his conviction by arguing that it was a crime punishable as a misdemeanor or felony. The defendant specifically pointed out ORS § 161.705, subdivision (1)(b) and subdivision (2). The defendant argued that pursuant to section 161.705(1)(b), a defendant with a class B felony could have his crime reduced to a misdemeanor. In the alternative, the defendant argued that pursuant to section 161.705(2), the court could reduce the crime after considering the nature and circumstances of the crime and the character of the defendant.

The court of appeals stated that section 161.705(1)(b) specifically applied to class B felonies pursuant to ORS 475.992(2)(a), which pertained to the delivery of marijuana. Thus, the court of appeals held that section 161.705(1)(b) did not apply.

The court of appeals also held that section 161.705(2) was not a stand-alone provision. The court of appeals determined that subdivision two was a conjunctive, linking subdivision two and subdivision one. The court of appeals concluded that the defendant must have fit into one of the categories of subdivision one, and met the requirements of subdivision two.

Because the defendant did not have a crime under subdivision one, the court of appeals held that his crime was not punishable as a felony or misdemeanor. The court of appeals therefore reversed the trial court’s decision and ordered the denial of defendant’s set aside request.

Key Language: A court could reduce a felony to a class A misdemeanor only if (1) the defendant’s crime fell within one of the subsections, (1)(a) to (1)(c), and (2) the court determined that, in the totality of the circumstances, it would be unduly harsh to sentence the defendant for a felony.

Expert Advise: “This case demonstrates how to determine whether a crime is punishable as a felony or misdemeanor. A crime punishable as a felony or misdemeanor is just one of the many instances individuals may set aside their conviction or felony arrest records. Once eligible, a person that sets aside their conviction will be able to move forward with their life and gain professional and personal growth.” -Attorney Mathew Higbee.

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