State v. Cloutier

• Decision Date: 22 September 2011
• Docket Number: (CC D085162T; CA A143051; SC S059039).
• Citation: 351 Or. 68,261 P.3d 1234
• Parties: STATE of Oregon, Petitioner on Review,v.Adam Michael CLOUTIER, Respondent on Review.
• Court: Oregon Supreme Court

351 Or. 68

261 P.3d 1234

STATE of Oregon, Petitioner on Review,

v.Adam Michael CLOUTIER, Respondent on Review.

(CC D085162T; CA A143051; SC S059039).

Supreme Court of Oregon, En Banc.

Argued and Submitted May 5, 2011.Decided Sept. 22, 2011.

On review from the Court of Appeals.^*Jeremy C. Rice, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Erica Herb, Deputy Public Defender, Office of Public Defense Service, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender.

LANDAU, J.

The issue in this criminal case is one of appellate jurisdiction: May a defendant who has pleaded no contest to a misdemeanor offense appeal the judgment of conviction to challenge his sentence on the ground that it violates the Due Process Clause of the federal constitution? The Court of Appeals held that it had jurisdiction under ORS 138.050(1)(a), which provides that a defendant who has pleaded guilty may appeal after making a colorable showing that the sentence “[e]xceeds the maximum allowable by law.” The state sought review, arguing that, because defendant's sentence is well within the maximum allowable by applicable statutes, the case should be dismissed. Defendant responds that, because the process by which the court arrived at his sentence was unconstitutional, that sentence “exceeds the maximum allowable by law” in the sense that any sentence arrived at by that process is unlawful. We conclude that the state is correct that this appeal is not cognizable under ORS 138.050 and therefore reverse and remand for entry of an order dismissing the appeal for lack of jurisdiction.

I. BACKGROUND

A. Facts

Defendant was charged with driving under the influence of intoxicants (DUII). He pleaded no contest to one count of misdemeanor DUII and entered a DUII diversion program. When defendant failed to complete the program, the trial court terminated diversion, entered a judgment of conviction, and imposed a sentence, including a fine. ORS 813.255. The mandatory minimum fine for misdemeanor DUII is $1,000. ORS 813.010(6)(a). The maximum fine for a Class A misdemeanor, including misdemeanor DUII, is $6,250. ORS 161.635(1)(a). In this case, the trial court imposed a fine in the amount of $1,100. When defendant asked why the court had imposed more than the mandatory minimum fine, the court explained that the $100 “was for his no contest plea at the time of entering the diversion.”

Defendant appealed, challenging the lawfulness of the fine. He argued that, “[a]lthough the fine of $1,100 imposed in this case falls within [the] statutory range, the trial court abused its discretion because it imposed a fine greater than the statutory minimum simply because defendant exercised a statutory right” to plead no contest.

The state moved to dismiss defendant's appeal, asserting that the Court of Appeals lacks jurisdiction to review the case. The state argued that, under ORS 138.050, jurisdiction to review a sentence imposed after a defendant pleaded guilty is limited to cases in which the defendant has made a colorable showing that the sentence imposed either “exceeds the maximum allowable by law” or is unconstitutionally cruel and unusual. In this case, the state argued, defendant made no argument that the sentence was unconstitutionally cruel and unusual, and there can be no colorable claim that the sentence “exceeds the maximum allowable by law,” because it is well below the statutory maximum for the offense.

Defendant asserted that the matter was appealable under ORS 138.050(1)(a) because the trial court failed to impose the sentence consistently with statutory sentencing requirements, given that the court, in effect, punished him for exercising his statutory right to plead no contest. That error, he argued, caused the sentence to exceed the maximum allowable by law.

The Appellate Commissioner granted the state's motion, agreeing that the court lacked jurisdiction. The commissioner explained:

“[Defendant] does not assert that his sentence was unconstitutionally cruel and unusual, but he argues that the trial court abused its discretion when it imposed a fine greater than the statutory minimum and therefore the sentence was not ‘imposed consistently with the statutory requirements.’ State v. Stubbs, 193 Or.App. 595, 606–07, 91 P.3d 774 (2004). The fine imposed falls well within the statutory limit. If the trial court took into consideration that [defendant] pleaded no contest in establishing the amount of the fine, that may raise a constitutional issue, State v. Qualey, 138 Or.App. 74, 76–77, 906 P.2d 835 (1999) [ (1995) ] (under state and federal constitutional right to jury trial provisions, judge may not base sentence in part on defendant's exercise of that right). However, no statute bars the trial court from doing so. It follows that the court lacks jurisdiction to review the amount of the fine.”

Defendant then moved for reconsideration, arguing that, in fact, he did intend to assert that the trial court's imposition of the additional fine for exercising his right to plead no contest raised a constitutional issue. Specifically, he asserted that the trial court's imposition of the fine for exercising that right violated his right to due process guaranteed under the federal constitution. Because the trial court “exceeded the rules that govern its authority when it imposed the fine,” he argued, “the sentence in this case exceeded the maximum allowable by law, and this court has jurisdiction over the case.”

This time, the commissioner agreed with defendant. He concluded that, because defendant

“made a colorable showing that the trial court imposed a fine in excess of the minimum required by law solely because appellant pleaded no contest and that, by doing so, the trial court imposed a sentence that exceeds the maximum allowable by case law or under the state or United States constitutions.”

The state petitioned for reconsideration, asserting that, under ORS 138.050(1)(a), a sentence “exceeds the maximum allowable by law” only when it exceeds limits imposed by statute or administrative rule. In this case, the state noted, defendant cites no statute or administrative rule that the trial court violated in imposing the challenged fine. To the contrary, his sole contention appears to be that the fine violates the Due Process Clause of the federal constitution. The problem is, the state asserted, ORS 138.050(1)(b) limits the sort of constitutional challenges to sentences imposed after a guilty or no contest plea to claims that the sentences are “unconstitutionally cruel and unusual.”

The Chief Judge of the Court of Appeals denied the state's petition. The state then petitioned this court for review. We granted review to resolve whether the Court of Appeals has jurisdiction to review defendant's claim.

B. The Parties' Contentions

On review, the state reiterates its contention that, under ORS 138.050, a sentence imposed after a defendant pleads no contest may be appealed on only one of two narrow grounds. First, under ORS 138.050(1)(a), a defendant may appeal if there is a colorable showing that the sentence “exceeds the maximum allowable by law.” Second, under ORS 138.050(1)(b), a defendant may appeal if there is a similar showing that the sentence is “unconstitutionally cruel and unusual.” According to the state, because defendant does not assert that the fine at issue is unconstitutionally cruel and unusual, the only issue is whether it “exceeds the maximum allowable by law” within the meaning of ORS 138.050(1)(a).

The state argues that the plain meaning of the wording of that provision defeats defendant's assertion of jurisdiction in this case. The state reasons that, under the ordinary meaning of the statute's terms, a sentence “exceeds” a “maximum” only when it goes beyond a quantitative limit established by “law.” According to the state, defendant fails to identify any quantitative limit established by any law that the fine exceeds in this case. Aside from that, the state argues, the “law” to which ORS 138.050(1)(a) refers is a statute or administrative rule. The state acknowledges that, in the abstract, the term “law” can also embrace constitutions. It nevertheless contends that, in this context, if the word were given that broader definition, that would render the separate ground for appeal stated in ORS 138.050(1)(b) entirely superfluous.

The state argues that, even assuming that the bare wording of the statute were ambiguous, the legislative history of ORS 138.050(1)(a) makes clear that the legislature intended to permit an appeal of a sentence imposed following a guilty or no contest plea only on the narrow grounds that the sentence exceeds a quantitative limit established by statute or is unconstitutionally cruel and unusual. The state also contends that prior versions of ORS 138.050, along with judicial interpretations of it, consistently have emphasized that the statute was intended to authorize only limited appellate review of sentences. Moreover, the state observes, the legislature, in adopting more recent amendments to ORS 138.050, specifically considered and rejected a proposed amendment that would have permitted constitutional challenges to a sentence other than that it is cruel and unusual.

Defendant argues that the “plain text” of ORS 138.050(1)(a) makes clear that “the legislature intended to authorize appellate review of all constitutional challenges to dispositions following no contest and guilty pleas.” A sentence “exceeds the maximum allowable by law,” he contends, when the trial court goes beyond its statutory or constitutional authority in imposing it.

According to defendant, that ORS 138.050(1)(a) is not limited to nonconstitutional challenges is borne out by the fact that, in a number of cases arising under the parallel...