State v. Brewer

• Decision Date: 23 January 2014
• Docket Number: A150602.,11CR0706
• Citation: 260 Or.App. 607,320 P.3d 620
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Renee Ann BREWER, Defendant–Appellant.

260 Or.App. 607

320 P.3d 620

STATE of Oregon, Plaintiff–Respondent,

v.Renee Ann BREWER, Defendant–Appellant.

11CR0706, A150602.

Court of Appeals of Oregon.

Argued and Submitted on Jan. 31, 2013.

Decided Jan. 23, 2014.

Bear Wilner–Nugent argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

SERCOMBE, J.

Defendant pleaded guilty to second-degree robbery, ORS 164.405, and was sentenced to a mandatory minimum sentence of 70 months' incarceration under ORS 137.700. She appeals the judgment imposing that sentence, contending that the sentencing court erred when it concluded that she did not qualify for a downward departure sentence under ORS 137.712. The state, in response, asserts first that, because defendant pleaded guilty, under ORS 138.050, her claim of error is not justiciable. In addition, the state asserts that, even if defendant's claim under ORS 137.712 is justiciable, the sentencing court correctly denied defendant's request for a downward departure sentence and, in any event, any error in the court's application of ORS 137.712 was harmless. As explained below, we conclude that we have jurisdiction to consider defendant's claim of error in this case. With respect to the merits, we conclude that the sentencing court erred in its application of ORS 137.712(2)(d)(B), but that the error was harmless. Accordingly, we affirm.

We begin by noting that a “party does not have an inherent right to appellate court review[.]” Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). Rather, the right to appeal is controlled by statute, and “an appellant must establish that the decision from which the appeal is taken is appealable under some statutory provision.” Id. Statutes control not only the right to appeal, but also the scope of review. State v. Cook, 108 Or.App. 576, 580, 816 P.2d 697 (1991), rev. den.,312 Or. 588, 824 P.2d 417 (1992). Although the terms are sometimes used interchangeably, “ [a]ppealability is not identical with reviewability.” State v. Montgomery, 294 Or. 417, 420, 657 P.2d 668 (1983) (emphasis in original). “ Appealability generally is concerned with whether an appeal can be taken at all.” Id. (emphasis in original). In contrast, “[r]eviewability” concerns which issues can be considered on appeal and “generally involves the consideration of a variety of rulings and orders made by the court, usually before judgment.” Id. (emphasis in original). In State v. Jackman, 155 Or.App. 358, 362, 963 P.2d 170,rev. den.,328 Or. 115, 977 P.2d 1171 (1998), we explained:

“It is axiomatic that an appellate court lacks jurisdiction over an appeal from an order that is not appealable. On the other hand, although an appellant who appeals from an appealable order but raises an issue that is not reviewable certainly will not prevail on appeal, the reason is that the court may not consider the issue raised, not that the court lacks jurisdiction over the case.”

(Emphasis in original.)

Thus, in resolving whether we may address a particular issue that is raised on appeal, we are confronted with two separate but often interrelated questions. The first question is whether a statute confers appellate jurisdiction—that is, whether a statute grants an appellant the right to appeal. The second question is whether a statute authorizes or limits appellate review of the particular issue raised in the appeal.

As noted, in this case, the state contends that defendant's claim of error is not justiciable in light of ORS 138.050. That statute provides, in relevant part:

“(1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.

“ * * * *

“(3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.” ¹

Under ORS 138.050, then, the issues that may be appealed and those that may be reviewed in the appeal are the same—whether the disposition exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. In the state's view, ORS 138.050 limits us to determining only two types of issues following a guilty plea: whether the disposition “[e]xceeds the maximum allowable by law” and whether it “[i]s unconstitutionally cruel and unusual.” Since neither consideration is presented by defendant's claim on appeal—that the disposition should be less than the maximum allowable by law—the state asks that the appeal be dismissed.

Defendant contends, however, that another statute, ORS 138.222, confers jurisdiction over her appeal. That statute provides, in relevant part:

“(1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided in this section.

“ * * * *

“(7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:

“(a) A sentence was entered subsequent to a plea of guilty or no contest[.]”

A separate part of that statute, ORS 138.222(4)(a), concerns reviewability and limits the colorable claims of error that may be evaluated in any such appeal to include whether the “sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence[.]” Defendant argues that we have jurisdiction to consider her appeal under ORS 138.222(7) because she is raising a “colorable claim of error” under ORS 138.222(4)(a)—that the sentencing court erred in not applying ORS 137.712—and her appeal arises from a proceeding in which a “sentence was entered subsequent to a plea of guilty[.]”

In support of its position, the state relies upon State v. Anderson, 197 Or.App. 193, 104 P.3d 1175 (2005). The facts in Anderson mirror those in this case. There, the defendant pleaded guilty to second-degree robbery and was given a 70–month minimum sentence under ORS 137.700. She assigned error to the trial court's ruling that she did not qualify for a downward departure sentenceunder ORS 137.712(2)(d). The defendant argued that jurisdiction to consider her claim of error existed under ORS 138.222(4)(a), again, which provides that we may review a claim “[i]n any appeal” that the “sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence[.]”

We concluded that “[m]eeting the criteria of ORS 138.050(1) * * * establishes appealability, which is another way of saying that it gives us jurisdiction over the case.” Anderson, 197 Or.App. at 197, 104 P.3d 1175. If jurisdiction exists, “we may be unable to review a particular issue raised on appeal unless a defendant meets the criteria in reviewability statutes such as ORS 138.050(3) and ORS 138.222.” Id. (emphasis in original). We determined that the “[e]xceeds the maximum allowable by law” standard in ORS 138.050(1)(a) pertains to an error that “might have caused a sentence that exceeds the maximum allowable by law.” Id. at 199, 104 P.3d 1175. Because the alleged sentencing error “deprived [the] defendant only of an opportunity to be considered for a subminimum sentence[,] it did not expose her to a sentence that exceeded the legal maximum.” Id. at 199–200, 104 P.3d 1175. We dismissed the appeal because “we lack[ed] jurisdiction to consider it.” Id. at 200, 104 P.3d 1175.

Anderson treated ORS 138.222 as merely a reviewability statute, relevant to establishing which issues may be considered in an appeal but not pertinent to establishing jurisdiction over an appeal. We echoed that conclusion in State v. Roy, 198 Or.App. 209, 215–16, 108 P.3d 88 (2005), stating that “ORS 138.222(7) does not itself confer jurisdiction for appeals; rather, it ‘defines the scope of our review in felony sentencing cases[.]’ ” (Citing State v. Lebeck, 171 Or.App. 581, 584, 17 P.3d 504 (2000).)

However, in other cases, we treated ORS 138.222(7) as an appealability statute. For example, in State v. Munro, 109 Or.App. 188, 190, 818 P.2d 971 (1991), rev. den.,312 Or. 588, 824 P.2d 417 (1992), the defendant challenged the sentence imposed after he pleaded guilty to a felony, and we concluded that “[w]e have jurisdiction of the appeal under ORS 138.222(7)” and that other parts of ORS 138.222 affected reviewability of the sentencing issue. Likewise, in Cook, 108 Or.App. at 581, 816 P.2d 697, where three of four defendants challenged the sentences imposed after they pleaded guilty or no contest to felonies, we concluded that ORS 138.222(7) conferred jurisdiction, and we did not dismiss the appeals. Finally, in State v. Arnold, 214 Or.App. 201, 164 P.3d 334 (2007), we considered an appeal involving the application of ORS 137.712 to a second-degree robbery sentence. That sentence, however, resulted from a verdict and not a plea. We concluded that “review is permitted” under ORS 138.222(4)(a). Id. at 207, 164 P.3d 334. In Arnold, we did not analyze appealability under the applicable provisions in ORS 138.040(1) that are analogous to the appeal limitations of ORS 138.050(1) (whether the disposition “[e]xceeds the maximum allowable by law”).

This seeming inconsistency in our case law is resolved by the Supreme Court's decision in State...