State v. Cook
| Decision Date | 25 March 1991 |
| Citation | 816 P.2d 697,108 Or.App. 576 |
| Parties | STATE of Oregon, Respondent, v. Jack Irvin COOK, Appellant. STATE of Oregon, Respondent, v. James Walther DAVID, Appellant. STATE of Oregon, Respondent, v. Shandley S. HAZELTON, Appellant. STATE of Oregon, Respondent, v. Stephen Venton HEATH, wtn is Stephen Vinton Heath, Appellant. C90-01-30078; CA A65874; C90-03-31894; CA A65667; CM 89-1052; CA A65186; 10-90-01938; CA A65058. . On Respondent's Motion To Dismiss in CA A65874 |
| Court | Oregon Court of Appeals |
Carol J. Fredrick, Asst. Atty. Gen., Salem, for motion in CA A65874. With her on the motion were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Sally L. Avera, Public Defender, Salem, contra.
Douglas F. Zier, Asst. Atty. Gen., Salem, for motion in CA A65667. With him on the motion were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
E. Ted Meece and Deich & Meece, Portland, contra.
Janet A. Klapstein, Asst. Atty. Gen., Salem, for motion in CA A65186 and CA A65058. With her on the motion were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Sally L. Avera, Public Defender, Salem, contra.
Before ROSSMAN, P.J., JOSEPH, C.J., and EDMONDS, J.
In these four appeals, which we have consolidated for decision, each defendant has appealed from a sentence that is conceded to be within the presumptive range of the sentencing guidelines. ORS 137.010; OAR 253-04-001. The state has moved to dismiss each appeal. It argues that, because each sentence is within the presumptive range, they are not subject to review.
As part of the sentencing guidelines, the legislature enacted ORS 138.222(7), which allows either the state or the defendant to appeal from "a judgment of conviction based on the sentence [imposed under the guidelines] * * * subject to the limitations of this 1989 Act." Those limitations are contained in ORS 138.222, which provides, in part:
The commentary explains the use of the "grid block":
Commentary, Criminal Justice Council's Implementation Manual 90 (1989).
Defendants' interpretation would effectively nullify in every case the prohibition against review in ORS 138.222(2)(a). We cannot act as if the legislature intended impliedly to repeal the prohibition by the same legislation that enacted it.
A sentence within the presumptive range is within the maximum and minimum allowable by law and complies with the "requirements of law." When a criminal conviction and criminal history place a defendant within a particular grid block subsection, ORS 138.222(2)(a) expressly prohibits review of any sentence within the range. What is permitted by the exception in ORS 138.222(4)(a) is review of a claim that the presumptive sentence rests on a legal error. In other words, reading ORS 138.222(2)(a) and ORS 138.222(4)(a) together, as we must, compels the conclusion that we have no authority under the guidelines statute and rules to review a presumptive sentence.
Even though that reading of the statute is the only reasonable one, our rejection of defendants' argument also comports with the record of the legislative history. In drafting the ORS 138.222(4)(a) exception, the Criminal Justice Council sought language that would allow an appeal if the sentencing court had acted without authority from the statutes or rules. See Minutes, Criminal Justice Council, February 17, 1989. Later, testimony before the Senate Judiciary Committee was to the effect that an appeal was to be available only for an "illegal" sentence. Minutes, Senate Judiciary Committee, June 2, 1989. On the Senate floor, Senator Springer stressed that the Judiciary Committee had worked to limit the circumstances in which an appeal could be taken and that the court could not review sentences within the presumptive sentence provided by the rules. Senate Session, June 15, 1989.
Under ORS 138.222(7), we have jurisdiction of the appeals and, therefore, cannot dismiss them. We deny the motions to dismiss. However, as discussed below, there is nothing in A65874, A65186 and A65058 that we can review and we affirm the judgments. 1
In A65874, defendant failed to preserve any claim of error. Enactment of ORS 138.222 did not alter the requirement that a defendant preserve a claim of error in the trial court. State v. Orsi/Gauthier, 108 Or.App. 176, 180, 813 P.2d 82 (1991). Defendant pled no contest 2 to kidnapping with a firearm and sodomy with a firearm. In his brief, he argues that the presumptive sentence is excessive and cruel and unusual punishment in the light of the facts and circumstances surrounding his case, which show that he is sorry for what he did and that he has a supportive family. He did not make the objection to the trial court that he now argues on appeal.
The error is not apparent on the face of the record. ORAP 5.45(2). If a sentencing court exceeds its statutory authority in imposing a specific sentence, that is an "error of law" that may be addressed without an objection to the sentencing court. State v. Braughton, 28 Or.App. 891, 893 n. 2, 561 P.2d 1040 (1977); see also State v. Montgomery, 106 Or.App. 150, 806 P.2d 183 (1991). The sentence here is within the statutory authority, and defendant does not challenge that authority; he challenges only the imposition of the sentence in his individual case. He does not argue that the guidelines themselves present cruel and unusual punishment questions, and it is not apparent on the face of the record why, in an individual case, a presumptive sentence is excessive, cruel or unusual. There is no error that we may review.
In A65058, defendant pled guilty to sodomy and stipulated to the grid block under which he was sentenced. His contention on appeal is that the sentencing court should have applied a discretionary...
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