Presentence Jail Credit for Unrelated Conduct and While Serving Another Sentence: Oregon Supreme Court Clarifies ORS 137.370(4)

Case: State ex rel Torres-Lopez v. Fahrion, Supreme Court of Oregon, en banc

Citation: Cite as 373 Or 816 (2025) (opinion filed July 10, 2025)

Author: Bushong, J.

Disposition: Court of Appeals reversed; circuit court judgment (granting mandamus) affirmed.

Introduction

This decision resolves two recurring sentence-calculation problems in Oregon criminal practice: When may a trial court award presentence jail credit toward a sentence imposed in one case for time that a person spent in custody on unrelated matters? And does “presentence incarceration credit … for the time served in jail” under ORS 137.370(4) encompass time a person spends in a county jail awaiting resolution of a probation violation while the person is, at the same time, in the legal custody of the Department of Corrections (DOC) on an unrelated prison sentence?

Relator Abraham Torres-Lopez sought a writ of mandamus compelling DOC’s Offender Information and Sentence Computation (OISC) unit to honor the sentencing court’s explicit order to credit 125 days of jail time toward his Marion County prison terms imposed upon probation revocation. DOC refused, invoking ORS 137.370(2) and administrative rules to deny credit on the Marion County sentences for (1) an 82‑day period of pretrial custody on unrelated Clackamas County charges and (2) a 43‑day period spent in the Marion County Jail awaiting probation violation disposition after sentencing in the Clackamas case. The trial court granted mandamus; the Court of Appeals reversed. The Supreme Court allowed review to construe ORS 137.370(4).

The Court holds that ORS 137.370(4) authorizes trial courts to “expressly order” presentence jail credit in both scenarios. The opinion clarifies that “sentence” in subsection (4) modifies “crime,” not “conduct,” and that “time served in jail” includes time in a county jail awaiting resolution of a probation violation notwithstanding simultaneous legal custody by DOC on another sentence. The decision brings needed coherence to sentence-credit calculations and harmonizes statutory text, context, and legislative history.

Summary of the Opinion

• Two questions presented under ORS 137.370(4):
  • Whether a court may award presentence jail credit for time an individual spent in custody for unrelated conduct before conviction/sentencing on that conduct; and
  • Whether time in a county jail awaiting a probation violation decision qualifies as “time served in jail” for presentence credit when the person is simultaneously serving an unrelated DOC sentence.
• Holdings:
  • Yes—“conduct” in ORS 137.370(4) is not limited by the word “sentence”; the statute permits trial courts to award credit for jail time served because of unrelated conduct even before any conviction or sentence for that conduct.
  • Yes—time physically spent in a county jail awaiting probation violation resolution is “time served in jail” for purposes of presentence credit under subsection (4), even if the person is concurrently in the legal custody of DOC serving an unrelated sentence.
• Result: DOC must honor the sentencing court’s order granting 125 days’ presentence jail credit toward the Marion County sentences. The Court of Appeals erred in concluding otherwise.

Case Background

In 2016, Torres-Lopez pleaded guilty in three Marion County cases, receiving local jail time and supervised probation; two cases included a stipulated 60‑month prison term upon probation revocation. After a 2018 probation-violation warrant issued in Marion County, he was indicted in Clackamas County on new charges. Arrested on both warrants on December 21, 2019, he remained in the Clackamas County Jail. On March 11, 2020, he pleaded guilty in the Clackamas case and received concurrent 13‑month and 6‑month prison terms. Because he was also held on the Marion County probation warrant, he was transported to the Marion County Jail. On April 24, 2020, the Marion County court revoked probation and imposed concurrent 60‑month sentences, expressly ordering “credit for time served since December 21, 2019, including time credited to [the] Clackamas County case.”

DOC credited only the 82 days of presentence time to the 13‑month Clackamas sentence and refused to apply the 125 days to the Marion County sentences. The trial court granted mandamus compelling DOC to follow the Marion County judgments; the Court of Appeals reversed. The Supreme Court now reverses the Court of Appeals and affirms the trial court.

Analysis

1) Statutory Framework and the Court’s Method

The Court employs Oregon’s familiar text-in-context approach, consulting legislative history where useful. ORS 137.370 governs sentence computation and credits and is applied through ORS 137.320, which tasks DOC with computing sentences “in accordance with the provisions of ORS 137.370.”

• ORS 137.370(2)—Applies to credit for the crime of conviction (including lesser/greater included offenses or crimes in the same criminal episode). Its prefatory clause—“Except as provided in subsections (3) and (4)”—signals that subsections (3) and (4) govern outside that narrow “same episode” lane.
• ORS 137.370(4)—The focal provision. Default rule: No presentence jail credit for time served when the person is confined due to:
  • a sentence for a crime not directly related to the crime being sentenced, or
  • conduct not directly related to the crime being sentenced, or
  • violation of probation, parole, or post-prison supervision.
  But the court may override this default “unless the court expressly orders otherwise.”

2) The 82‑Day Period: Jail on Unrelated Conduct Pre‑Conviction

DOC argued that subsection (4) does not apply because during this period the relator was not confined “as the result of a sentence” for either a crime or conduct. The Court rejects that grammatical reading, explaining that “sentence” modifies “crime,” not “conduct,” and that “conduct” covers preconviction custody for unrelated charges.

Key points:

• Text and grammar: The phrase “a sentence for a crime or conduct” is properly parsed as two distinct confinement bases—“a sentence for a crime” and “conduct”—each qualified by the “not directly related” clause. Thus, confinement for “conduct” can be presentence custody.
• Surplusage canon: Reading “sentence” to modify “conduct” would largely render “conduct” redundant with the specific clause addressing probation/parole/PPS violations. To give “conduct” distinct work, it must include preconviction custody for unrelated matters.
• Legislative history (1995):
  • HB 2492 added subsection (4). It was aimed at avoiding confusion and “double credit” for unrelated matters.
  • At OCDLA’s urging, the phrase “of a sentence” was inserted to ensure that only when a person is actually serving a sentence for an unrelated crime would credit be limited; staff’s draft split subsection (4) into subparagraphs showing “sentence” applied only to “crime,” not “conduct.”
• Legislative history (2015): HB 2310 added the judicial override—“unless the court expressly orders otherwise.” Testimony and summaries framed the amendment as restoring judicial ability to prevent the loss of jail credit when a person is in custody on two matters simultaneously (e.g., probation hold plus new case).

Conclusion: The sentencing court could “expressly order” presentence jail credit toward the Marion County sentences for the 82 days the relator spent in the Clackamas County Jail on unrelated conduct prior to conviction in that case.

3) The 43‑Day Period: In County Jail Awaiting Probation Revocation While Serving Another DOC Sentence

DOC asserted that after the Clackamas sentencing, the relator was in DOC custody and not in “jail,” making subsection (4)’s “time served in jail” condition unsatisfied. The Court disagrees, drawing a statutory distinction between physical and legal custody and observing the relator was physically housed in the Marion County Jail, awaiting probation-violation resolution in that county.

• Physical vs. legal custody: ORS 137.320 contemplates that a person sentenced to DOC can be delivered to another “legal authority” to resolve pending matters, creating periods where DOC has legal custody while a county sheriff has physical custody in a jail. See also State v. DeCamp (recognizing this duality).
• Textual fit: “Time served in jail” refers to the location and status of confinement. Here, the relator was in a county jail, and with respect to the Marion County probation matter he was in presentence status until revocation and sentencing on April 24, 2020.
• Legislative history: 1995 testimony (ODAA and committee counsel) discussed precisely this fact pattern—people “doing state time” who also have pending matters—and set the default rule against double credit unless a court orders otherwise. The 2015 amendment reintroduced judicial discretion to avoid unjust results.

Conclusion: The sentencing court had authority to grant presentence jail credit for the 43‑day period the relator spent in the Marion County Jail awaiting probation violation disposition, even though he was simultaneously serving the Clackamas DOC sentence.

4) Why DOC’s Contrary Arguments Failed

• Nissel v. Pearce (1988) and “double credit”: Nissel predated both the creation of subsection (4) (1995) and its 2015 “expressly orders otherwise” clause. The statutory landscape has changed, and Nissel’s general bar on double credit does not control where the legislature has now vested discretion in sentencing courts. Additionally, the sentences here were concurrent, making the credit practically necessary to avoid an illusory benefit.
• ORS 137.370(2) vs. (4): Subsection (2) covers same-episode crimes; when unrelated crimes or supervision violations are at issue, subsection (4) governs, and its judicial override is available.
• DOC regulations cannot trump statute: To the extent DOC’s OAR 291-100-0080 would withhold credit that ORS 137.370(4) allows a court to grant, the statute prevails. Agencies may not “amend, alter, enlarge or limit” legislative enactments through rulemaking.

Precedents and Authorities Cited and Their Roles

• State v. Wallace, 373 Or 122 (2024); State v. Gaines, 346 Or 160 (2009); PGE v. BOLI, 317 Or 606 (1993)—Set out Oregon’s text-context-history interpretive framework.
• SAIF v. Walker, 330 Or 102 (2000); State v. Turnidge, 359 Or 364 (2016); Doyle v. City of Medford, 347 Or 564 (2010)—Context includes prior versions and the bill’s path through the legislature; used here to parse subsection (4)’s drafting trajectory.
• State v. Clemente-Perez, 357 Or 745 (2015); Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016); SAIF Corp. v. Ward, 369 Or 384 (2022)—Canons against surplusage and redundancy; applied to confirm that “conduct” must do independent work beyond “crime.”
• Nissel v. Pearce, 307 Or 102 (1988)—General rule against double credit under prior statutory regime; distinguished because ORS 137.370(4), as amended, now authorizes judicial override.
• State v. DeCamp, 158 Or App 238 (1999)—Recognizes practical separation of legal and physical custody under ORS 137.320; supports treating jail custody as “jail time” even when DOC has legal custody.
• State v. Lane, 357 Or 619 (2015)—Treats incarceration upon probation revocation as “sentencing” in certain contexts; supports viewing revocation incarceration as a sentencing event to which credit principles may apply.
• Fisher Broadcasting, Inc. v. Dept. of Rev., 321 Or 341 (1995); U. of O. Co-Oper. v. Dept. of Rev., 273 Or 539 (1975)—Agencies cannot use rules to contradict statutes; applied to reject DOC’s reliance on OAR 291-100-0080 where inconsistent with ORS 137.370(4).

Legal Reasoning: How the Court Reached Its Decision

1. Textual parsing of ORS 137.370(4): The clause “a sentence for a crime or conduct” is properly read as: (1) “a sentence for a crime” and (2) “conduct,” each subject to the “not directly related” qualifier. This reading gives independent meaning to “conduct.”
2. Contextual integration: The “Except as provided in subsections (3) and (4)” lead-in to subsection (2) signals that subsection (4) governs credits for unrelated crimes and supervision matters—precisely the posture here.
3. Historical intent (1995): The legislature intended to avoid “double credit” by default, but confined “sentence” to “crime,” leaving “conduct” broader. Staff drafting and OCDLA’s intervention confirm the grammar.
4. Restored discretion (2015): The “unless the court expressly orders otherwise” clause was meant to give judges the tool to remedy credit loss when a person is simultaneously in custody on multiple matters—a ubiquitous practical problem.
5. Physical/legal custody distinction: ORS 137.320 allows a sentenced person to be housed in a county jail for other pending matters. The location of confinement—jail—satisfies subsection (4)’s “time served in jail” requirement, and the status of the pending matter—presentence—satisfies the “presentence incarceration” component for that matter.
6. Practical coherence with concurrency: Because the Clackamas and Marion sentences were concurrent, denying credit toward the longer Marion sentences would effectively erase the 125 days from the overall time served—a result the legislature did not intend once it armed courts with discretion to order otherwise.

Impact and Practice Implications

Doctrinal impacts:

• Clarified scope of “conduct”: “Conduct” in ORS 137.370(4) includes preconviction custody for unrelated charges. No separate “sentence” is required to bring such custody within subsection (4).
• Expanded utility of judicial override: Trial courts may now confidently use the “expressly orders otherwise” clause to prevent lost credit in overlapping-custody scenarios, including where the defendant is:
  • simultaneously held on unrelated charges and a probation detainer; or
  • in DOC legal custody on one case but physically in a county jail on another matter.
• “Jail” includes county jail during DOC legal custody: For presentence credit under subsection (4), what matters is the physical jail custody tied to the pending matter, not exclusive legal custody.
• Agency rules subordinate to statute: DOC must recalibrate OISC practices and any inconsistent OARs; sentencing courts’ express orders under subsection (4) control.

Practical guidance for stakeholders:

• Judges:
  • Include explicit subsection (4) findings and orders in the judgment when awarding credit for unrelated conduct or while the defendant is jail-housed pending probation violation.
  • Sample phrasing: “Pursuant to ORS 137.370(4), the court expressly orders presentence incarceration credit for all time served in jail since [date], including time credited to [other county/case number].”
  • When in doubt, memorialize the dates and custodial bases (arrest warrants, holds, county jail housing) to facilitate DOC compliance.
• Defense counsel:
  • Build a record documenting custody dates, locations, warrants, and the relationship (or lack thereof) between matters; request an express subsection (4) order.
  • Where sentences are concurrent, emphasize the risk of “illusory credit” unless applied to the longer sentence.
• Prosecutors:
  • Anticipate subsection (4) requests in overlapping-custody scenarios; weigh equitable and resource considerations, including concurrency and “truth-in-sentencing” predictability.
• DOC/OISC:
  • Update calculation protocols to recognize court-ordered subsection (4) credit in the two clarified circumstances.
  • Review and revise OAR 291-100-0080 and training materials to avoid conflicts with the statute and this decision.

Open questions and limits:

• Subsection (4) speaks to “time served in jail.” The Court did not decide whether time physically spent in a state prison could ever be credited as “jail” time under subsection (4). The holding rests on county jail custody.
• The default rule still denies credit absent an express judicial order. Silence in the judgment leaves DOC bound by the default.
• “Directly related” remains a statutory limiter; future litigation may refine its contours, especially in multi-county or cross-episode settings.

Complex Concepts Simplified

• Presentence incarceration credit: A reduction in a sentence to account for time already spent in custody before sentencing on the case at issue. It prevents serving “extra” time due to pretrial detention.
• Concurrent vs. consecutive sentences: Concurrent sentences run at the same time; consecutive sentences run one after another. Credits applied only to a short concurrent sentence can be practically meaningless if a longer concurrent sentence remains without credit.
• Legal vs. physical custody: An inmate can be in DOC’s legal custody (because a prison sentence has begun) but housed in a county jail (physical custody) for other pending proceedings. ORS 137.320 accounts for this.
• “Conduct” in ORS 137.370(4): Not limited to conduct for which a sentence has been imposed; includes custody for pending charges or supervision-violation allegations unrelated to the sentence being imposed.
• Mandamus: A court order compelling a public official to perform a legal duty. Here, used to require DOC to compute sentence credit as the statute and sentencing court order require.

Conclusion

State ex rel Torres-Lopez v. Fahrion squarely resolves two unsettled issues under ORS 137.370(4). First, “conduct” in subsection (4) is not cabined by the term “sentence”; trial courts may award presentence jail credit toward a sentence for time a person spent in custody on unrelated, preconviction matters when they expressly order it. Second, time a person spends in a county jail awaiting probation revocation is “time served in jail” for presentence credit purposes even if the person is simultaneously in DOC legal custody serving an unrelated sentence. The decision anchors these holdings in statutory text, context (including the “except as” structure of ORS 137.370(2)), and a robust legislative history from 1995 and 2015 that both limited default double credit and re-empowered courts to “order otherwise.”

Practically, the ruling prevents the evaporation of jail credit in concurrent-sentence scenarios and requires DOC to honor express judicial credit orders under subsection (4). It supplies a clear roadmap for sentencing courts to achieve “truth in sentencing” by explicitly directing how overlapping custody should be credited, ensuring that time served is accurately and fairly recognized.