State v. Adams
Decision Date | 11 February 1993 |
Citation | 847 P.2d 397,315 Or. 359 |
Parties | STATE of Oregon, Respondent on Review/Petitioner on Review, v. Timothy Scott ADAMS, Petitioner on Review/Respondent on Review. CC 90-1081; CA A66738; SC S39019, S39080. |
Court | Oregon Supreme Court |
Irene B. Taylor, Deputy Public Defender, Salem, argued the cause for petitioner on review/respondent on review Timothy Scott Adams. With her on the petition and the response was Sally L. Avera, Public Defender, Salem.
Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review/petitioner on review State of Oregon. With him on the petition were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., Salem.
The issue that we decide in this case relates to the scope of direct appellate review of a sentence imposed under the recently adopted sentencing guidelines: Does ORS 138.222 permit appellate review of a sentence imposed pursuant to an agreement between defendant and the state, where the sentencing court accepted defendant's stipulated sentencing guidelines grid block classification and approved the corresponding stipulated sentence on the record, and where defendant contends for the first time on appeal that the sentence was a "departure" sentence and that the sentencing court did not make the statutorily required findings on the record to support that sentence? We hold that ORS 138.222 precludes appellate review of defendant's sentence. Accordingly, we reverse the decision of the Court of Appeals, State v. Adams, 110 Or.App. 434, 823 P.2d 992 (1992), and affirm the judgment of the circuit court.
Defendant was charged with murder, ORS 163.115, for a shooting that occurred on or about May 1, 1990. He filed a pretrial notice of his intent to rely on the defense of extreme emotional disturbance. ORS 163.135.
Because defendant committed the crime after November 1, 1989, a felony conviction for that crime is subject to the sentencing guidelines. ORS 137.010(1), 137.120(2). Under those guidelines, a conviction for murder carries a mandatory life sentence with a 10-year minimum plus the possibility of a 25-year minimum. ORS 163.115(3). If, however, defendant had prevailed on his defense, he would have been convicted of first-degree manslaughter. ORS 163.118(1)(b). Given defendant's criminal history, his maximum sentence under the sentencing guidelines for that offense would have been 70 months. OAR 253-04-001 and Appendix 1.
Based on the facts of the case, each side was concerned that the other could prevail if the case went to trial. The parties therefore negotiated a compromise plea agreement. When the parties appeared before the court, 1 the following exchange took place:
The judgment stated:
"FINDINGS: The applicable grid block is 10 G
The stipulated grid block is 10 E
The stipulated sentence is 84 months
"ORDERED: The defendant shall be sentenced to the legal and physical custody of the Corrections Division for a term of eighty-four (84) months." 2
In summary, the trial court was advised by the prosecutor that, based on defendant's criminal history, his grid block classification on a conviction for murder would have been 11G. For the same reason, on a conviction for manslaughter, defendant's grid block classification would have been 10G. However, the parties agreed to a stipulated grid block classification of 10E, expressly because the sentence to which they had agreed was within the presumptive range for that grid block. See ORS 135.407(1) and OAR 253-07-002(1) ( ); ORS 135.407(2), ORS 135.407(3), and OAR 253-07-003 ( ); ORS 135.407(4) and OAR 253-07-004 ( ).
Defendant did not suggest to the trial court that the sentence was a departure sentence, that findings should be made, OAR 253-08-001, or that appropriate findings could not be made. On appeal, however, he assigned as error the trial court's actions in "imposing a departure sentence" and in failing to state "findings of facts * * * to support the imposition of a departure sentence."
The Court of Appeals held, first, that it could review defendant's claim under ORS 138.222(4)(a), quoted below. State v. Adams, supra, 110 Or.App. at 436-37, 823 P.2d 992. Second, on the merits, the Court of Appeals held that the sentence here did not meet the requirements of ORS 135.407. Id. at 440, 823 P.2d 992. We disagree with the first holding and, consequently, do not reach the second.
"The right to appeal is statutory and subject to any limitations imposed by the statute conferring the right." Logsdon v. State and Dell, 234 Or. 66, 70, 380 P.2d 111 (1963). Here, the right to appeal is governed by ORS 138.222 and is subject to any limitations therein. ORS 138.222 provides in part:
When construing a statute, we seek to ascertain the legislature's intent. ORS 174.020; State ex rel. Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991). We begin with the text and context of the statute. ORS 174.010; Porter v. Hill, 314 Or. 86, 91, 838 P.2d 45 (1992).
Defendant first argues that ORS 138.222(3) and (4) are exceptions to all of the limitations in ORS 138.222(2). We disagree. The exception is stated in paragraph (e) of subsection (2) and not in the introductory portion of subsection (2). The wording of the statute clearly demonstrates that ORS 138.222(3) and (4) are exceptions only to ORS 138.222(2)(e).
Alternatively, defendant argues that ORS 138.222(2)(a) through (d) are narrow prohibitions, precluding review only of...
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