State v. Colgrove
| Citation | 370 Or. 474 |
| Decision Date | 01 December 2022 |
| Docket Number | SC S068372 |
| Parties | STATE OF OREGON, Respondent on Review, v. RHONDA COLGROVE, Petitioner on Review. |
| Court | Supreme Court of Oregon |
Argued and Submitted November 9, 2021
Resubmitted January 25, 2022
On review from the Court of Appeals. (CC 17CR57106) (CA A169952) [*]
Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G Lannet, Chief Defender.
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson Garrett, and DeHoog, Justices. [**]
This criminal case concerns the meaning of ORS 138.105(5), which provides, in part, that "[t]he appellate court has no authority to review the validity of * * * a conviction based on the defendant's plea of guilty or no contest[.]" Specifically, we must determine whether that statute precludes a defendant who has pleaded guilty or no contest from obtaining appellate review of legal challenges to the conviction in the judgment entered in the trial court. For the reasons that follow, we conclude that such challenges are not reviewable under ORS 138.105(5). Accordingly, we affirm the decision of the Court of Appeals on different grounds.
This case concerns a driving under the influence of intoxicants (DUII) conviction following the termination of a diversion agreement. We therefore begin by providing an overview of the statutes governing DUII diversion. See ORS 813.200 - 813.270 ().
Generally, a defendant charged with DUII who satisfies certain eligibility requirements may file a petition for diversion. ORS 813.215. The content of the petition is governed by ORS 813.200, and, among other things, it must include a guilty or no contest plea. If the trial court allows a diversion petition, the judge shall "[a]ccept the * * * plea" but "withhold entry of a judgment of conviction." ORS 813.230(1). The petition then becomes the agreement between the defendant and the court. ORS 813.230(2). As part of that agreement, the court "may require as a condition of a [DUII] diversion agreement that the defendant attend a victim impact treatment session" and "pay a reasonable fee to the victim impact program to offset the cost of the defendant's participation." ORS 813.235.
The diversion agreement "shall be for a period of one year after the date the court allows the petition." ORS 813.230(3) (emphasis added). However, if a defendant needs additional time beyond one year to complete the requirements of diversion, the defendant may request an extension "[w]ithin 30 days prior to the end of the diversion period." ORS 813.225(1). The trial court has discretion to grant an extension if it finds that "the defendant made a good faith effort to complete the conditions of the diversion agreement and that the defendant can complete the conditions of the diversion agreement" within the requested extension of the diversion period. ORS 813.225(4). Generally, the court is permitted to grant only one extension of the diversion period, which cannot exceed 180 days from the end date of the original one-year period.[1] ORS 813.225(5), (6). "During the diversion period[,] the court shall stay the [DUII] offense proceeding pending completion of the diversion agreement or its termination." ORS 813.230(3).
At any time before the court dismisses the DUII charge with prejudice, or on the court's own motion or the motion of a district or city attorney, the court may issue an order requiring the defendant to show cause why the court should not terminate the diversion agreement. ORS 813.255(1). The order to show cause must (1) state the reasons for the proposed termination; (2) set an appearance date; and (3) specify the amount of any fees owed and, if the fees owed are less than $500, inform the defendant that the court may dismiss the DUII charge with prejudice if the defendant "has complied with and performed all of the conditions of the diversion agreement and pays the remaining amount before or on the date of the hearing." Id. The order must be served on the defendant and on the defendant's attorney, if any. ORS 813.255(2). The court "shall terminate the diversion agreement and enter the guilty plea or no contest plea" if the defendant "fails to appear at the hearing on the order to show cause or if, at the hearing on the order to show cause, the court finds by a preponderance of the evidence" that the defendant no longer qualifies for diversion under ORS 813.215 or "[t]he defendant failed to fulfill all of the terms of the diversion agreement." ORS 813.255(3) (emphasis added).
However, if a defendant has fully complied with and performed the conditions of the diversion agreement, the defendant is entitled to dismissal of the DUII charge with prejudice. See ORS 813.250(1) (); see also City of Pendleton v. Standerfer, 297 Or. 725, 731, 688 P.2d 68 (1984), abrogated on other grounds by State v. Probst, 339 Or. 612, 124 P.3d 1237 (2005) (). Additionally, if a defendant appears at a show cause hearing, "the court shall dismiss with prejudice" the DUII charge if the defendant has complied with all diversion conditions except for the payment of $500 or less in fees, provided the remaining fees are paid by 5:00 p.m. on the day of the show cause hearing. ORS 813.255(5) (emphasis added).
With that understanding of the statutes, we set out the basic facts. Defendant pleaded guilty to misdemeanor DUII and filed a petition to enter diversion. Defendant's diversion petition stated, in part, that she had "read and understood] all of the information in the attached Explanation of Rights and DUII Diversion Agreement" and "agree[d]," among other things, to "[a]ttend a victim impact panel as ordered by the court." (Emphasis in original.) The accompanying Explanation of Rights and DUII Diversion Agreement form stated, in part, that, if defendant "fail[ed] to fulfill the terms of the agreement by the end of the diversion period, the court [would] sentence [her] without a trial." Defendant's guilty plea also included a statement that defendant understood that, if she "fail[ed] to comply with the diversion agreement within the diversion period, the court [would] enter a judgment of conviction on the charge and w[ould] sentence [her]." The trial court issued an order allowing defendant's diversion petition, ordering her to attend a victim impact panel, and establishing a one-year diversion period with specific beginning and ending dates. As required by ORS 813.230, the trial court also accepted defendant's guilty plea that had been filed as part of the petition, but it withheld entry of a judgment of conviction.
Defendant failed to pay $335 in fees and to attend a victim impact panel within the diversion period. The trial court thereafter terminated the diversion agreement and entered a judgment of conviction, and defendant appealed.[2]As pertinent here, defendant challenged her conviction on the ground that the trial court had erroneously terminated her diversion agreement either because the agreement had not set a deadline to attend the victim impact panel or because the trial court had discretion to waive the attendance requirement. The Court of Appeals assumed that defendant's challenge was reviewable under ORS 138.105(5), but concluded that it failed on the merits. State v. Colgrove, 308 Or.App. 441, 480 P.3d 1026 (2021). We allowed defendant's petition for review and now address the reviewability issue that the Court of Appeals did not-viz., whether ORS 138.105(5) precludes a defendant who pleads guilty or no contest from obtaining appellate review of legal challenges to the conviction in the judgment entered in the trial court.
Again, ORS 138.105(5)-set out in full below- provides, in part, that the appellate court has no authority "to review the validity of * * * a conviction based on the defendant's plea of guilty or no contest[.]" Defendant advocates a narrow reading of that statute. Specifically, she contends that the resolution of the reviewability issue reduces to the meaning of the term "conviction" as it is used in ORS 138.105(5). Noting that the term is not defined for purposes of that statute, defendant asserts that the term should be given its legal meaning. See Ogle v. Nooth, 355 Or. 570, 578, 330 P.3d 572 (2014) ("[W]hen words are used in the context of a legal proceeding * * * they may be used as legal terms of art, and, if so, we give precedence to their legal meanings."). According to defendant, in Vasquez v. Courtney, 272 Or. 477, 480, 537 P.2d 536 (1975), this court explained that the term "conviction" has two accepted meanings:
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