State v. Clevenger, s. 81-2006

• Decision Date: 05 June 1984
• Docket Number: 81-2389,Nos. 81-2006,s. 81-2006
• Parties: STATE of Oregon, Respondent on Review, v. Bruce Neil CLEVENGER, Petitioner on Review. ; CA A23835; A23836; SC 29937.
• Court: Oregon Supreme Court

Page 1360

683 P.2d 1360

297 Or. 234

STATE of Oregon, Respondent on Review, v. Bruce Neil CLEVENGER, Petitioner on Review.

Nos. 81-2006, 81-2389; CA A23835; A23836; SC 29937.

Supreme Court of Oregon In Banc.

Argued and Submitted Dec. 5, 1983.

Decided June 5, 1984.

Ronald K. Cox, Asst. Public Defender, North Bend, argued the cause and filed briefs for petitioner on review.

Kay Kiner James, Asst. Sol. Gen., argued the cause for respondent on review. With her on the response to the petition was Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen. On the brief in the Court of Appeals were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Daryl Dodson Wilson, Asst. Atty. Gen.

LENT, Justice.

The issue is whether on appeal from a judgment of conviction on a plea of no contest the Court of Appeals, 64 Or.App. 183, 667 P.2d 9, may "consider" a claim that the judgment was entered in violation of ORS 135.395, which provides:

"After accepting a plea of guilty or no contest the court shall not enter judgment without making such inquiry as may satisfy the court that there is a factual basis for the plea."

Both in the Court of Appeals and in this court defendant specifically proceeds under ORS 138.050, ¹ which provides:

"A defendant who has pleaded guilty or no contest may take an appeal from a judgment on conviction where it imposes a sentence that is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense. If the judgment of conviction is in the circuit court or the district court, the appeal shall be taken to the Court of Appeals; if it is in the justice of the peace court or municipal court or city recorder's court, the appeal shall be taken to the circuit court of the county in which such court is located. On such appeal, the appellate court shall only consider the question whether an excessive, cruel or unusual punishment has been imposed. If in the judgment of the appellate court the punishment imposed is excessive, unusual or cruel, it shall direct the court from which the appeal is taken to impose the punishment which should be administered."

We hold that the claim cannot be addressed on this appeal.

On November 8, 1981, the defendant injured another's ear and was thereafter charged with assault in the second degree. On December 10, 1981, defendant entered a negotiated plea of no contest to that charge. At that time both the prosecutor and defendant's counsel agreed that the victim had suffered serious physical injury. ² That degree of injury was a necessary element of the crime as charged. See ORS 161.015 and 163.175. ³ The trial court made an express finding that there was a factual basis for the plea, accepted the plea and set February 2, 1982, as the date for sentencing.

On December 18, 1981, prior to entry of judgment and sentencing, the victim was reexamined. ⁴ The hospital record on reexamination showed that the ear had healed.

On January 27, 1982, defendant moved to withdraw his plea of no contest and to enter a not guilty plea and to go to trial thereon. He argued that the information as to the degree of injury resulting from the December 18 reexamination demonstrated that there was not a "serious" physical injury and, consequently, there was no factual basis for a plea of no contest. He cited ORS 135.365, which provides:

"The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor."

The trial court considered the motion on February 2, 1982, prior to pronouncing sentence and stated:

"The no contest plea basically is saying that Mr. Clevenger agrees that the facts are as stated, and the facts stated to me at the time were that she had suffered a broken eardrum that might not heal. I think the facts could be well within the defendant's knowledge that eardrums, from research or whatever, can be repaired and that it may or may not be serious physical injury. By pleading no contest, he accepted the facts as stated. They were all known to him at the time he did that. In fact, as I recall, we went specifically over the facts. He was aware of those at the time, so I will deny that." ⁵

On appeal defendant assigned as error the denial of the motion. He argued that:

"The only judgment to be made is whether under the facts there was still a factual basis for the plea remaining at the time of sentencing."

The state argued that the trial court did not err in denying the motion and that the issue could not be considered on direct appeal. The state contended that the defendant's only remedy was under the Post-Conviction Hearing Act, ORS 138.510 to 138.680, and that the appeal must therefore be dismissed.

The Court of Appeals, per curiam, dismissed the appeal, holding:

"This court is not authorized to consider on direct appeal defendant's claim that the trial court abused its discretion by denying his motion to withdraw his pleas. ORS 138.050; State v. Lugo, 48 Or App 919, 618 P2d 986 (1980); State v. Slopak, 3 Or App 532, 475 P2d 421 (1970). Only matters relating to the sentence may be considered unless, as a matter of law, there has been no valid guilty plea under ORS 135.380(2) and, therefore, no conviction. State v. Reichert, 39 Or App 905, 593 [297 Or. 239] P2d 1298 (1979). If defendant has a remedy, it is under the Post Conviction Act." (Footnote omitted)

64 OR.APP. AT 183, 667 P.2D 9⁶.

We allowed the defendant's petition for review because it appears that there are conflicting decisions concerning whether rulings on motions of this kind may be addressed on direct appeal from a judgment on a plea of guilty or no contest. ⁷

The statute which is now ORS 138.050 was first enacted in 1945. Or.Laws 1945, ch. 62, § 1. ⁸ This court had earlier decided State v. Lewis, 113 Or. 359, 230 P. 543, 232 P. 1013 (1925). Defendant had appealed from a judgment on a conviction on a plea of guilty, assigning as error the denial of his motion after judgment to vacate the judgment and for a "new" trial. At the outset the state challenged the jurisdiction of this court to entertain the appeal. In construing the forerunner of present ORS 138.040, providing that an "appeal to the Supreme Court may be taken by the defendant from a judgment on a conviction in a Circuit Court," the opinion states that it is "obvious" that the statutory text included judgments entered on pleas of guilty. After pointing out that a plea of guilty admits every fact alleged in the indictment, is a confession of guilt and is the "highest kind of conviction," the court held that the statute was intended to give a defendant the right to have error of law corrected in such matters as trial court jurisdiction, sufficiency of the indictment and imposition of a sentence in excess of that provided for by statute. On this point the court concluded:

"The objection that the defendant cannot appeal because of his plea of guilty cannot be sustained."

The court disposed of the case by holding that the only issue was whether the trial court abused its discretion in denying the motion and that it did not.

State v. Bloor, 229 Or. 49, 365 P.2d 103, 365 P.2d 1075 (1961), and State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961), have been cited as post 1945 cases holding that errors of law may be reached on appeal from judgment on conviction on guilty pleas. In Bloor defendant pleaded guilty and was sentenced. Later he brought post-conviction proceedings resulting in a judgment that he must be resentenced. Before the sentencing trial court resentenced, defendant moved under former ORS 135.850 (now ORS 135.365) ⁹ to withdraw his plea of guilty and enter a not guilty plea. The trial court denied the motion and resentenced defendant, who then appealed, assigning as error the denial of the motion. This court affirmed, holding that the trial court could only be reversed for abuse of discretion and that abuse was not shown. Neither in the briefs nor in the opinion was there any discussion of the basis for entertaining an appeal on a judgment entered on a guilty plea or of the scope of appellate review.

In State v. Burnett, supra, defendant pleaded guilty and appealed, assigning error for denial of his timely motion to withdraw that plea under former ORS 135.850. This court stated that the only issue was whether the trial court abused its discretion under that statute. As was the case in Bloor, neither in the briefs nor in the opinion is there any discussion of appellate jurisdiction to review the claim of error that was made.

Three months after the decisions in Bloor and Burnett, this court considered State v. Jairl, 229 Or. 533, 368 P.2d 323 (1962). There the defendant pleaded guilty and after judgment appealed, assigning as error: (1) the trial court's failure to rule upon a motion to dismiss, (2) the trial court's proceeding without ascertaining that there was good cause for timely failure to return an indictment, and (3) the trial court's pronouncement of sentence in the absence of defendant's counsel. This court, on its own motion, raised the issue of appellate jurisdiction. The court pointed to the well settled rule of law that appellate jurisdiction is a creature of statute. The court stated that ORS 138.040 was the only statute under which these claims of error might be reached. The court noted the decision in State v. Lewis, supra, and the enactment of ORS 138.050 in 1945. The opinion then briefly reviewed three post-1945 cases that had equivocal language as to the scope of review arising under ORS 138.050. In holding that the alleged errors could not be addressed in an appeal from a judgment on conviction on a plea of guilty, the court in Jairl said:

"We believe that the legislature intended to prohibit appellate review of convictions based upon a plea of guilty except to the limited extent granted by ORS 138.050. The restrictive language of ORS 138.050...