STATE v. McCOLLISTER (2006)

 Defendant appeals from a judgment in which the sentencing court imposed a cluster of special conditions of probation commonly referred to as a “sex offender package.”   Defendant contends that, in imposing those special conditions, the court erred in making a factual determination that had to be submitted to a jury under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   We affirm.

Defendant was charged with two counts of sexual abuse in the first degree, ORS 163.427, and one count of harassment, ORS 166.065(4), for “touching [the victim's] upper inner thigh, a sexual or intimate part of [the victim].”   He pleaded guilty to the harassment charge, a Class A misdemeanor, and the state dismissed the other charges.   At sentencing, the court suspended the imposition of an incarcerative sentence and placed defendant on 24 months' probation.   In addition, the court determined that defendant had acted with a sexual purpose in committing the offense and imposed the sex offender package as special conditions of probation.

 Defendant appeals, arguing that the sentencing court violated his Sixth Amendment right to a jury trial when it imposed the sex offender package.   Defendant's argument has two premises.   First, he asserts that, because he was not convicted of a sex crime, the sentencing court could not impose the sex offender package without finding as fact that defendant acted with a “sexual purpose” in committing the offense.   Second, he argues that, under Blakely and Apprendi, the factual finding that he acted with a sexual purpose had to be made by a jury and proved beyond a reasonable doubt.   It follows, defendant contends, that the sentencing court erred in making that factual determination itself.   Because defendant's major premise is flawed, his argument fails.

 Here, defendant was not convicted of a sex offense, nor did he have any previous convictions for a sex offense.   Therefore, the sentencing court could impose the sex offender package only as a special condition of probation-that is, only  if the condition was “reasonably related” to defendant's conviction for harassment or “the needs of the probationer for the protection of the public or reformation of the probationer.”  ORS 137.540(2).¹  To facilitate meaningful appellate review, a sentencing court must establish a factual record to support its imposition of a special condition of probation under that statute.  State v. Saxon, 131 Or.App. 662, 664, 886 P.2d 505 (1994).   That record may be established by the evidence at trial.  State v. Martin, 282 Or. 583, 589, 580 P.2d 536 (1978).   It also can be established at the sentencing hearing.  State v. Estey, 121 Or.App. 251, 253, 855 P.2d 186 (1993).

At the outset, we note that defendant's major premise is a narrow one.   He does not assert that the criterion that ORS 137.540(2) expressly establishes-that is, that any special condition of probation be reasonably related to his crime of conviction or his particular needs for public protection or reformation-must be determined by a jury.   Nor does he assert that the record in this case was insufficient to satisfy that criterion.   Instead, he argues that our holding in State v. Mack, 156 Or.App. 423, 967 P.2d 516 (1998), requires a sentencing court to find, as a predicate for imposing a sex offender package as a special condition of probation, that, in committing the offense, the defendant acted with a sexual purpose.   Defendant is mistaken.

At issue in Mack was whether the evidentiary record was sufficient to support the imposition of a sex offender probation package where the defendant was not convicted of a sex offense.   We held that, although the court had discretion to impose special conditions of probation, the record must support the imposition of any such conditions.  Id. at 427-28, 967 P.2d 516.   We further held that, because the defendant was not convicted of a sex offense, “there must be some evidence from which a reasonable inference arises that [the defendant] acted with a sexual purpose.”  Id. at 429, 967 P.2d 516.   We also stated:

 “Thus, the trial court had to find that defendant acted with a sexual purpose before it could impose a sex offender package as a condition of probation in this case.   Otherwise, the imposition of the sex offender package as a condition of probation would not be reasonably related to the crimes of conviction.”

Id.² Because the record in that case did not establish that the defendant had acted with a sexual purpose, we remanded the case for resentencing.  Id. at 429, 967 P.2d 516.

Contrary to defendant's understanding, Mack does not require, as a foundation for imposing a sex offender probation package as a special condition of probation, a particularized finding of fact that the defendant acted with a sexual purpose.   To be sure, where the state asserts that the sex offender package is reasonably related to the defendant's crime or conviction, “there must be some evidence in the trial record from which one could reasonably infer that the defendant acted with a sexual purpose.”  State v. Phillips, 206 Or.App. 90, 98, 135 P.3d 461, rev. den., 341 Or. 548, 145 P.3d 1109 (2006) (emphasis added).   However, our statement in Mack that the sentencing court “had to find that defendant acted with a sexual purpose,” must be read with an eye toward the text of ORS 137.540(2) and other decisions construing it.  156 Or.App. at 429, 967 P.2d 516 (emphasis added).   By its terms, the statute requires a defendant's offense or his or her needs for reformation or protection of the public to be “reasonably related” to any special probationary conditions that the sentencing court imposes.   The statutory text does not refer, either expressly or by implication, to a findings requirement.

This court and the Supreme Court have interpreted the statute in a straightforward way.   We have said that, in making the statutory determination, it is “not necessary * * * for the court to list the reasons why it found the special condition appropriate.”  Estey, 121 Or.App. at 253, 855 P.2d 186 (emphasis added).   That is so because the evidentiary record permits an  “appellate court [to] test the [special condition of probation] for compliance with ORS 137.540(2).”  Id. In Martin, the court explained:

“An appellate court can test conditions of probation for compliance with [the legislative] standard only if the sentencing court makes a record.   Such a record need not be exhaustive, and often the facts brought out in the criminal trial will themselves be an adequate record to show that the conditions of probation are appropriate.”

282 Or. at 589, 580 P.2d 536.³

Thus, when properly understood, our statement and, indeed, our holding in Mack, refer to the need for evidence of a reasonable relationship between a sex offender probation package and the purpose underlying the defendant's offense.  Mack does not undercut the longstanding holdings of Estey and Martin that the evidentiary record, not particular findings of fact, must support the imposition of special conditions of probation.   In short, there is nothing in the text of ORS 137.540(2) or the case law construing it that requires particularized factual findings to justify the imposition of any special condition of probation, including a sex offender package for a defendant convicted of a nonsex offense.

It follows that Apprendi and Blakely do not assist defendant in this case.   The principles enunciated in those cases apply only to circumstances in which the sentencing court's authority to order a particular sentence “depends on finding [additional facts not decided by the jury].”  Blakely, 542 U.S. at 305, 124 S.Ct. 2531;  see also State v. Dilts, 337 Or. 645, 652, 103 P.3d 95 (2004) (“The trial court had authority to impose the upward departure only because it made additional findings of fact.   That is precisely the procedure that the Court in Blakely found did not comply with the Sixth Amendment's jury trial guarantee.”  (Emphasis in original.)).   Here, the sentencing court's authority to impose the challenged special conditions did not depend on its making the particularized finding that defendant argues had to be made by a jury.⁴  Therefore, in  imposing the challenged special conditions of probation, the sentencing court did not infringe on defendant's Sixth Amendment right to a jury trial.

Affirmed.

FOOTNOTES

1.   ORS 137.540(2) provides, in part, that, “[i]n addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both * * *.”

2.   See also State v. Bourrie, 190 Or.App. 572, 573, 80 P.3d 505 (2003) (vacating special probation conditions requiring sex offender evaluation and treatment because “no evidence was presented that defendant acted with a sexual purpose”);  State v. Flicker, 185 Or.App. 666, 668, 60 P.3d 1155 (2003) (accepting the state's concession that the trial court erred in imposing a sex offender package where the defendant's offense did not involve a sexual purpose).

3.   In Mack, we cited both Estey and Martin with approval, albeit with respect to different points of law.  Mack, 156 Or.App. at 428, 967 P.2d 516.

4.   The fact that the sentencing court actually made such a finding does not alter our analysis.

BREWER, C.J.