State v. Davis-McCoy

• Decision Date: 30 October 2019
• Docket Number: A167424
• Citation: 454 P.3d 48,300 Or.App. 326
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christofer Mark DAVIS-MCCOY, Defendant-Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 326

454 P.3d 48

STATE of Oregon, Plaintiff-Respondent,

v.Christofer Mark DAVIS-MCCOY, Defendant-Appellant.

A167424

Court of Appeals of Oregon.

Submitted October 4, 2019.

October 30, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

LAGESEN, P. J.

Defendant appeals a judgment revoking his probation on two felony counts and imposing consecutive sanctions of 28 months’ incarceration and two years of post-prison supervision as to each count. The sentences of incarceration were the product of a plea agreement whereby defendant agreed that, if his probation were to be revoked, he would serve 28-month sentences. Despite that stipulated term of the plea agreement, he now argues that his terms of incarceration are unlawful because they exceed the maximum presumptive prison term that initially could have been imposed under the sentencing guidelines. The state responds that, because defendant stipulated to those terms of incarceration, his claim of error is not reviewable. We agree with the state and affirm.

The judgment on appeal was entered in March 2018 and is therefore governed by ORS 138.105.¹ That statute provides that, "[o]n appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section." ORS 138.105(1). One of those provisions imposes an express limitation on our ability to review stipulated sentences: "The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant." ORS 138.105(9).

Although we have not yet had an opportunity to construe that provision, we interpreted its predecessor, former ORS 138.222(2)(d) (2015), repealed by Or. Laws 2017, ch. 529, § 26, in State v. Silsby , 282 Or. App. 104, 108-09, 386 P.3d 172 (2016), rev den , 360 Or. 752, 388 P.3d 726 (2017). In Silsby , the defendant, as part of her plea agreement, stipulated to a sentence of 80 months’ incarceration upon revocation, and she later assigned error to that sentence on the ground that it was longer than the 25-26 month sentence authorized by the sentencing guidelines for a probation revocation sentence. Id. at 105, 386 P.3d 172. The state responded that her claim of error was not reviewable in light of former ORS 138.222(2)(d) (2015), which provided that an appellate court may not review "[a]ny sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record." Id.

The defendant in Silsby argued that her sentence did not fall within the meaning of former ORS 138.222(2)(d) (2015) because it was not a "stipulated sentence" as "illustrated in ORS 135.407." Id. at 111-12, 386 P.3d 172 (discussing State v. Kephart , 320 Or. 433, 447, 887 P.2d 774 (1994), which held that former ORS 138.222(2)(d) (1993) does not bar review of sentences "unless they [are] ‘stipulated sentences’ as illustrated in ORS 135.407"). In the defendant’s view, " ORS 135.407 does not explicitly permit a person to stipulate to a future sentence upon probation revocation" and, moreover, " ORS 135.407 requires a sentence to comport with the guidelines." Silsby , 282 Or. App. at 112, 386 P.3d 172. We rejected those arguments and instead held that the defendant’s stipulated sentence had the "hallmarks of a sentence ‘illustrated in’ ORS 135.407. It was imposed pursuant to agreement, it is a specific sentence, and the trial court imposed that agreed-upon specific sentence." Id. at 113, 386 P.3d 172. Thus, we concluded that "defendant’s stipulated sentence is one that is ‘illustrated in’ ORS 135.407" and " ORS 138.222(2)(d) bars our review of defendant’s claim that that agreed-upon sentence is unlawful." Id.

In 2017, the legislature repealed former ORS 138.222(2)(d) (2015) as part of an overhaul of statutes related to criminal appeals, and it enacted ORS 138.105(9) in its place. The two statutes use an identical phrase—"sentence resulting from a stipulated sentencing agreement"—and there is no indication in the context or history of the statute that the legislature intended to change existing law with regard to the reviewability of stipulated sentences. Rather, the legislative history of the 2017 legislation confirms that ORS 138.105(9) was "intended to restate the limits on reviewability currently set forth in ORS 138.222 (2)(d)." See Report of the Direct Criminal Appeals Work Group on SB 896 (2017) (Criminal Appeals Report), Oregon Law Commission, 21. Although the new statute differs from former ORS 138.222(2)(d) (2015) in minor ways, the legislative history emphasizes that the new provision was intended to preclude review of any portion of a sentence that is the product of the parties’ stipulation:

"Subsection (9) is intended to restate the limits on reviewability currently set forth in ORS 138.222(2)(d). It omits the phrase ‘which the sentencing court approved on the record,’ because the important factor is whether the parties stipulated to the sentence, not whether the trial judge approved the stipulation ‘on the record’ somewhere other than as reflected in the judgment of conviction and sentence itself. The addition of the phrase ‘any part of a’ before ‘sentence’ is not intended to change current law. Rather, the Work Group added the phrase to make explicit the conclusion in State v. Capri , 248 Or. App. 391, 395, 273 P.3d 290 (2012), and State v. Davis , 134 Or. App. 310, 314, 895 P.2d 1374 (1995), that any portion of a sentence not agreed to between the state and a defendant is

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