State v. Johnson
Decision Date | 04 March 2015 |
Docket Number | A153270.,110651M |
Citation | 345 P.3d 490,269 Or.App. 497 |
Parties | STATE of Oregon, Plaintiff–Respondent, v. Gloria Sue JOHNSON, Defendant–Appellant. |
Court | Oregon Court of Appeals |
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney–in–Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
Defendant challenges the sentence imposed following her guilty plea and conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(4). She asks that we vacate her sentence and remand for resentencing. The state counters that we lack jurisdiction to hear defendant's appeal. For the reasons explained below, we agree with the state. We therefore dismiss defendant's appeal without reaching the merits of her argument as to the propriety of her sentence.
The relevant facts are procedural and are not in dispute. Defendant pleaded guilty to DUII and entered a diversion agreement under which she was required, among other things, to complete an alcohol evaluation and treatment program and to pay certain fees and fines in exchange for dismissal of her DUII charge. Defendant successfully completed nearly all of the requirements of the diversion agreement but paid a portion of her fees late, which resulted in her default under the agreement.
On the state's motion, the trial court held a hearing for defendant to show cause why the court should not terminate the diversion agreement. The state requested revocation of the diversion. Defendant objected to revocation and asked the court to grant her leniency because she had successfully completed the diversion agreement but for the single tardy payment and because she was indigent.
The court terminated the diversion agreement and entered a conviction based on defendant's earlier guilty plea. The court sentenced defendant to 24 months of bench probation with general and specific conditions, including an alcohol evaluation and, if recommended, participation in a treatment program. The court also imposed a $66 county assessment fee, a $130 state obligation, and a $1,000 DUII fine. The court found that defendant was indigent and therefore waived payment of court-appointed attorney fees. The trial court stated that it would have liked to waive the evaluation and the other payments but concluded that it lacked the discretionary authority to do so.
Defendant appeals, asserting that we have jurisdiction pursuant to ORS 138.050. On the merits, defendant argues that her sentence was unlawful because the trial court erroneously concluded that it lacked the discretion to waive certain aspects of that sentence. In fact, contends defendant, the relevant statutes grant the trial court the discretion to waive most aspects of a sentence, such as the one imposed here. Defendant points out that, in other contexts, a trial court commits reversible error when it fails to recognize—and, thus, exercise—its discretion to impose a lesser sentence, even when the sentence actually imposed is lawful. See, e.g., State v. Pemberton, 226 Or.App. 285, 288–89, 203 P.3d 326 (2009) ( ); State v. Arnold, 214 Or.App. 201, 214–15, 164 P.3d 334 (2007) ( ). Defendant does not argue that the particular terms of her sentence—i.e., the amount of the fines and fees or the imposition of the evaluation and treatment requirement—are prohibited by the relevant statutes or exceed the legal maximum permitted by those statutes.
See also State v. Cloutier, 351 Or. 68, 74, 261 P.3d 1234 (2011) (); State v. Soto, 268 Or.App. 822, 824, 343 P.3d 666 (2015) ( ).
The Appellate Commissioner denied the state's motion. The commissioner concluded that defendant's claim of error constituted an argument that the trial court imposed a sentence that exceeds the maximum allowable by law and that, therefore, ORS 138.050 applied. To support that conclusion, the commissioner relied on State v. Harrell/Wilson, 353 Or. 247, 254, 297 P.3d 461 (2013), which the commissioner construed as holding that a “court's failure to recognize that it had discretion and to lawfully exercise that discretion falls outside the permissible range of legally correct outcomes.”
In its answering brief, the state primarily argues that the commissioner's ruling was incorrect and reasserts that we must dismiss defendant's appeal for lack of jurisdiction. According to the state, defendant also failed to preserve her argument that the court lacked discretion to waive the alcohol evaluation and treatment requirement. On the merits, the state argues that the court lacked discretion to waive the $1,000 DUII fine but concedes...
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State v. Jacquez
...appellate jurisdiction because sentence imposed did not exceed “a maximum expressed by means of legislation”); State v. Johnson, 269 Or.App. 497, 502, 345 P.3d 490, rev. den., 357 Or. 550, 357 P.3d 503 (2015) (Court of Appeals lacked jurisdiction because trial court's failure to recognize d......
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State v. Sercus, A159873
...authority."278 Or.App. at 318, 373 P.3d 1277 (citing Cloutier , 351 Or. at 104–05, 261 P.3d 1234 ); see also State v. Johnson , 269 Or.App. 497, 501–02, 345 P.3d 490, rev. den. , 357 Or. 550, 357 P.3d 503 (2015) (ORS 138.050(1)(a) did not provide a basis for jurisdiction because trial court......