State v. Gutierrez

• Decision Date: 18 May 2005
• Citation: 112 P.3d 433,199 Or. App. 521
• Parties: STATE of Oregon, Respondent, v. Oscar Ignacio GUTIERREZ, Appellant.
• Court: Oregon Court of Appeals

112 P.3d 433

199 Or. App. 521

STATE of Oregon, Respondent, v. Oscar Ignacio GUTIERREZ, Appellant.

010735026; A119840.

Court of Appeals of Oregon.

Petition for reconsideration March 2, 2005.

Decided May 18, 2005.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Jennelle Meeks Barton, Deputy Defender, Office of Public Defense Services, for petition.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

On appellant's petition for reconsideration March 2, 2005.

BREWER, C.J.

Defendant petitions for reconsideration of our previous opinion in this case. State v. Gutierrez, 197 Or.App. 496, 106 P.3d 670 (2005). Specifically, he asks that we reconsider our rejection of his assignment of error asserting that the trial court imposed a departure sentence in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We allow reconsideration, modify our former opinion and adhere to it as modified.

Defendant was convicted of four offenses. At sentencing, the trial court imposed a five-year term of probation for Count 4, which defendant did not challenge on appeal. For Count 3, the presumptive sentence was 18 months' probation. The trial court imposed an upward departure sentence of 36 months' probation, which defendant challenged on the ground that the departure was based on facts not proved to the jury beyond a reasonable doubt. We declined to exercise our discretion to review the unpreserved assignment of error, concluding that, because defendant did not challenge the concurrent five-year probationary term, "remanding for resentencing on Count 3 would have no practical effect; either way, defendant is subject to a five-year probationary term." Gutierrez, 197 Or. App. at 506, 106 P.3d 670. We held that any error in imposing the sentence on Count 3 was harmless. Id. at 506-07, 106 P.3d 670.

In his petition for reconsideration, defendant points out that sanctions for probation violations are potentially more severe if the probationer is serving multiple probationary terms. In particular, a probation court may impose consecutive sanctions on revocation of separate probations if a probationer commits multiple violations of probation. OAR 213-012-0040(2)(b). Defendant also notes that, at the time of a probation revocation hearing, it would be too late for him to challenge the imposition of the departure sentence.¹ See ORS 138.071 (appeal must be taken within 30 days after the judgment appealed from was entered); State v. Martinez, 35 Or.App. 381, 384, 581 P.2d 955 (1978), rev. den., 285 Or. 73 (1979) (dismissing appeal of allegedly excessive sentence taken after probation violation proceeding rather than at the time of the original sentencing).

Although the points that defendant makes are accurate, we nevertheless conclude that, because of the speculative nature of the harm, and because defendant himself controls the risk that any harm will occur, the error that defendant asserts is not sufficiently grave to warrant exercising our discretion to disregard the ordinary preservation requirements. In order for defendant to be adversely affected, two uncertain events must occur. First, defendant must commit multiple probation violations between the nineteenth and thirty-sixth months of his probationary period. See OAR 213-012-0040(2)(a) ("If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently." (Emphasis added.)). Second, the...