State v. Fults, (CC 04CR1586, 04CR1689; CA A127874 (Control), A127875; SC S054609).

• Court: Supreme Court of Oregon
• Writing for the Court: Gillette
• Citation: 343 Or. 515,173 P.3d 822
• Parties: STATE of Oregon, Petitioner on Review, v. David Lester FULTS, Respondent on Review.
• Docket Number: (CC 04CR1586, 04CR1689; CA A127874 (Control), A127875; SC S054609).
• Decision Date: 13 December 2007

173 P.3d 822

343 Or. 515

STATE of Oregon, Petitioner on Review, v. David Lester FULTS, Respondent on Review.

(CC 04CR1586, 04CR1689; CA A127874 (Control), A127875; SC S054609).

Supreme Court of Oregon, En Banc.

Argued and Submitted September 10, 2007.

Decided December 13, 2007.

On review from the Court of Appeals.^*

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review.

Ernest G. Lannet, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

GILLETTE, J.

In this criminal case, the state seeks review of a decision of the Court of Appeals that vacated a sentence and remanded the case for resentencing. The state contends that the claim of error that prompted the Court of Appeals decision was unpreserved and that the Court of Appeals' determination to consider that claim of error in any event under the doctrine of "plain error" was flawed. For the reasons that follow, we remand the case to the Court of Appeals for further consideration.

The Court of Appeals summarized the relevant facts in its brief opinion as follows:

"In Case Number [04CR1586], defendant was convicted of manufacture of a controlled substance (MCS), reckless driving, and driving under the influence of intoxicants. In Case Number [04CR1689], defendant was convicted of felon in possession of a firearm and criminal trespass with a firearm. On the MCS conviction, the trial court imposed a 36-month term of supervised probation. The trial court determined that defendant's grid block classification on the MCS conviction was 4-F. Although the presumptive sentence for that classification is 24 months' supervision, the trial court imposed a 36-month term * * * and defendant indicated that he had no objection to the sentence[.]"

State v. Fults, 210 Or.App. 150, 152, 149 P.3d 1248 (2006).

In fact, defendant's response to the trial judge's sentence was even more supportive of the judge's action than the foregoing summary reflects. As the following part of the transcript shows, the trial court imposed the 36-month period of probation on defendant's MCS conviction in order to match the guidelines sentence that would apply to one of defendant's other convictions, and defendant's lawyer affirmatively endorsed that choice:

"[THE COURT]: On 04CR1586, it will be the judgment of the Court that you be sentenced to probation for a period of 24 — it ended up 36 months, because I believe Felon in Possession is a 6, which is three years probation — 36 months probation. So * * * I'm going to make [the period of probation] the same for all of them * * *.

"[DEFENDANT'S COUNSEL]: We have no objection to that, whatsoever."

(Emphasis added.)

There is still more to the story. Defendant had a criminal record sufficient to make an extensive jail sentence a real possibility. At sentencing, in addition to the exchange already described, defendant's counsel urged the court to impose as little jail time as possible, in order to permit defendant to begin pursuing vocational rehabilitation. The trial judge, in announcing defendant's sentence, observed:

"[Y]ou have a lot of prior convictions. So, actually, I could have imposed a lot more jail time, and maybe even should have. But I'm not too sure that's going to get your attention any more than the 70 days I've imposed."¹

The foregoing notwithstanding, defendant subsequently appealed, arguing that the trial court erred in sentencing him to a term of probation on his MCS conviction that exceeded the presumptive sentence set out in the sentencing guidelines for that offense (24 months of probation)² without finding, on the record, "substantial and compelling reasons to impose a departure," as required by OAR 213-008-0001.³ Defendant acknowledged that the claimed error was unpreserved, but he invited the Court of Appeals to review it as an "error of law apparent on the face of the record." See ORAP 5.45(1) (describing appellate court authority to consider errors of that kind).

The Court of Appeals accepted defendant's invitation. First, it concluded that the error about which defendant complained qualified as "plain error" — viz., an indisputable error of law apparent on the face of the record. Fults, 210 Or.App. at 153, 149 P.3d 1248. Next, it rejected the state's contention that defendant had invited or waived the error. Id. at 153-54, 149 P.3d 1248. Finally, the Court of Appeals concluded that, because "[t]he state has no valid interest in requiring defendant to serve an unlawful sentence," it was appropriate for it to exercise its discretion to address the error by vacating it and remanding the case for resentencing. Id. at 154, 149 P.3d 1248.

The state now seeks review of that decision, arguing that defendant's express acceptance of the sentence precluded review, that the error was not one "apparent on the face of the record," and that the Court of Appeals' reason for exercising its discretion to consider the unpreserved error was an inappropriate one. Respecting those three arguments, the state urges this court to start with its last objection (that the Court of Appeals improperly exercised its discretion to address an unpreserved but "plain" error). We agree to do so here, because we believe that that decision by the Court of Appeals indicates that that court may misapprehend its role in cases in which it is asked to exercise its discretion under ORAP 5.45(1) to consider unpreserved error.

In its opinion, the Court of Appeals acknowledged that defendant had not preserved any objection to the allegedly illegal probation period imposed with respect to his MCS conviction. Fults, 210 Or.App. at 152, 149 P.3d 1248. The court then stated that, nonetheless,

"This court may, in its discretion, consider an unpreserved claim of error when the asserted error is, on the face of the record, `obvious' and `not reasonably in dispute.' Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991)."

Fults, 210 Or.App. at 153, 149 P.3d 1248. And, having so noted, the Court of Appeals then proceeded to consider defendant's assignment of error.

The balance of the Court of Appeals opinion consisted almost entirely of its analysis and rejection of the state's contention that defendant either had "waived" or "invited" the alleged error. As noted, the court ruled against the state as to both arguments. Id. at 153-54, 149 P.3d 1248. The court then made two statements that justify our attention.

In the first of those statements, the court observed, in the context of discussing whether defendant had invited the asserted error, that "there [is no] indication that defendant's failure to object [to the impermissible 36-month probation term] constituted a strategic choice for which defendant now seeks to shift the blame." Id. at 154, 149 P.3d 1248. Although we do not question the court's conclusion that defendant did not engage in conduct that constitutes invited error, we do think the record permits the conclusion that defendant's failure to object was a conscious choice: This defendant desired a sentence that would lead to his release on probation as soon as possible. The trial judge, although restive, was willing to give him that. Moreover, the court had already decided to impose an indisputably permissible 36-month probation term for one of defendant's other offenses. Under those circumstances, defense counsel easily could have feared that a technical objection to the extra 12 months of probation on the MCS conviction would "break the deal," and that the best tactic for his client was to remain silent. In other words, the Court of Appeals' statement to the contrary notwithstanding, there is a significant possibility that defendant's failure to object was in fact a strategic choice. See State v. Gornick, 340 Or. 160, 169-70, 130 P.3d 780 (2006) (discussing similar issue).

We think, however, that a Gornick-style inquiry into whether the fact that defendant may have had a strategic reason not to object means that there was no error at all would be less helpful in this case than simply proceeding directly to a review of the Court of Appeals' determination to consider what it believed to have been a "plain" trial court error. We elect, therefore, to assume, for purposes of this case, that the trial court committed plain error, and turn to a review of the Court of Appeals' decision to consider the alleged error.⁴ And, in that review, we shall explain why the Court of Appeals should take into consideration any strategic purpose that defendant may have had in not objecting to the trial court's course of action.

The second statement by the Court of Appeals that concerns us speaks directly to that court's explanation of its choice to exercise its discretion to consider defendant's assignment of error. The court stated:

"Having concluded that the court plainly erred in imposing the sentence and that defendant neither waived nor invited that error, there remains only the question whether it is appropriate for us to exercise our discretion to address the error. See Ailes, 312 Or. at 382, 823 P.2d 956. We conclude that it is appropriate. The state has no valid interest in requiring defendant to serve an unlawful sentence. See State v. Ramirez, 205 Or.App. 113, 125, 133 P.3d 343, adh'd to on recons, 207 Or.App. 1, 139 P.3d 981 (2006)."

Fults, 210 Or.App. at 154, 149 P.3d 1248 (emphasis added).

We draw from the emphasized passage of that statement the conclusion that the Court of Appeals' determination to exercise its discretion respecting defendant's unpreserved claim of error turned solely on its view that the state had "no valid interest" in requiring defendant to serve an illegal sentence. As we shall explain, there is a fundamental problem with that statement.

The jurisprudential practice of considering unpreserved error, as we have noted, is memorialized...