State v. Keys, A163519

CourtCourt of Appeals of Oregon
Writing for the CourtDeHOOG, J.
Citation315 Or.App. 603,502 P.3d 245
Parties STATE of Oregon, Plaintiff-Respondent, v. Clifford Darrell KEYS, Defendant-Appellant.
Docket NumberA163519
Decision Date17 November 2021

315 Or.App. 603
502 P.3d 245

STATE of Oregon, Plaintiff-Respondent,
Clifford Darrell KEYS, Defendant-Appellant.


Court of Appeals of Oregon.

Submitted on remand July 14, 2021.
November 17, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.


502 P.3d 246
315 Or.App. 604

This case comes to us on remand from the Supreme Court, State v. Keys , 368 Or. 171, 489 P.3d 83 (2021) ( Keys II ). In the underlying case, the trial court convicted defendant following a bench trial of one count of felony unlawful possession of methamphetamine and entered judgment accordingly. On appeal, defendant assigned error to the trial court's entry of judgment, arguing that his waiver of preliminary hearing had not been knowing and was therefore invalid. Defendant argued that this defect in the proceedings either (1) deprived the trial court of subject-matter jurisdiction or (2) resulted in plain error that we were compelled to correct. Id. at 174, 489 P.3d 83. Because we agreed with defendant's first argument, we reversed his conviction on the ground that, given defendant's defective waiver of a preliminary hearing, the trial court lacked subject-matter jurisdiction to enter judgment; we did not reach defendant's plain-error argument. State v. Keys , 302 Or.App. 514, 526-27, 460 P.3d 1020 (2020), rev'd , 368 Or. 171, 489 P.3d 83 (2021) ( Keys I ). In Keys II , the Supreme Court reversed our decision based on its conclusion that a defective waiver of the right to a preliminary hearing does not deprive a circuit court of subject-matter jurisdiction. 368 Or. at 203, 489 P.3d 83. The Supreme Court remanded to us with instructions to consider defendant's plain-error argument that we previously had not reached. Id. at 205, 489 P.3d 83. For the reasons that follow, we conclude that the trial court did not plainly err, and we affirm.

We begin by reviewing the pertinent facts, which we described in Keys I :

"Defendant was arrested for possession of methamphetamine in violation of ORS 475.894, and an information was filed charging him with that felony crime. At defendant's arraignment, the court greeted defendant and stated that it was ‘going to be appointing [a particular lawyer] to be your attorney and she is going to assist you with this arraignment this morning.’ The lawyer and defendant had a brief interaction, which was transcribed, after which the lawyer purported to waive defendant's rights to a pretrial hearing[.][1 ]
315 Or.App. 605
* * * After a series of status conferences and a hearing on a suppression motion, which the court denied, defendant waived his right to a jury trial and the court convicted him on stipulated facts."

302 Or.App. at 515-16, 460 P.3d 1020 (first brackets in original).2

As defendant acknowledges, issues not raised in the trial court typically may not be raised and considered for the first time on appeal. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court."). However, there is a well-established exception to the preservation requirement for cases involving "so-called ‘plain error’—that is, an error apparent on the record, about which there is no reasonable dispute." Peeples v. Lampert , 345 Or. 209, 219, 191...

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