State v. Landahl

• Decision Date: 12 December 2012
• Docket Number: 060140795,A146189.
• Citation: 254 Or.App. 46,292 P.3d 646
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Robert James LANDAHL, Defendant–Appellant.
• Court: Oregon Court of Appeals

254 Or.App. 46

292 P.3d 646

STATE of Oregon, Plaintiff–Respondent,

v.Robert James LANDAHL, Defendant–Appellant.

060140795; A146189.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2012.

Decided Dec. 12, 2012.

David L. Sherbo–Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Matthew J. Lysne, Assistant Attorney in Charge, Criminal Appeals, argued the cause for respondent. With him on the briefs were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before BREWER, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.^*

BREWER, P.J.

Defendant, who appeals a judgment convicting him of driving under the influence of intoxicants (DUII), argues that the trial court erred in setting aside its previous dismissal of the charge and in entering a judgment based on his guilty plea made upon his entry into a diversion program. Defendant asserts that we have jurisdiction over this appeal pursuant to ORS 138.050(1)(a). The state asserts that we do not. As explained below, we conclude that the state is correct; accordingly, we dismiss the appeal.

The pertinent facts are procedural and not in dispute. Defendant was charged with DUII in January of 2006 and petitioned to enter diversion. On March 1, 2006, the trial court granted defendant's petition, pursuant to which defendant made a plea of no contest to the DUII charge. The diversion and plea agreement provided that defendant understood that, if he fully complied with the conditions of the diversion agreement, the court would dismiss the charge with prejudice pursuant to ORS 813.250, but that, if defendant failed to comply with the agreement within the diversion period, the court would enter a judgment of conviction based on defendant's plea. Conditions of the diversion agreement required defendant to participate in treatment and prohibited him from operating a motor vehicle while under the influence of intoxicants.

In March 2007, the court extended the diversion period for 180 days to allow defendant to complete his required treatment. On August 22, 2007, defense counsel filed a motion to terminate diversion, asserting that defendant had successfully completed the diversion requirements. The state did not oppose that motion, so the trial court granted it on September 11, 2007, and the court entered an order dismissing the charge. Shortly thereafter, however, the state discovered that defendant had, in fact, driven under the influence of intoxicants on August 17, 2007, approximately a week before he had filed his motion to terminate diversion. The state moved to set aside the judgment dismissing the DUII charge and to terminate defendant's diversion based on his violation of the diversion agreement. The trial court granted the state's motion on November 19, 2007, indicating that it was vacating the judgment due to “surprise” and “misrepresentation by defendant.” On December 15, 2007, the court issued a bench warrant for defendant's arrest. Defendant was apprehended on the warrant in April 2010 and, at that point, moved to set aside the November 2007 order vacating the September 2007 judgment of dismissal. The trial court denied defendant's motion, entered a judgment of conviction based on defendant's original no contest plea, and imposed a sentence of probation.

Defendant appeals that judgment pursuant to ORS 138.050. Defendant challenges the trial court's denial of his motion to set aside the November 2007 order vacating the prior judgment, and he asks this court to “reverse his conviction and sentence and remand for entry of an order dismissing the DUII charge.” Defendant recognizes, however, that in order to do so, we must first address whether this appeal is cognizable under ORS 138.050, which limits a defendant's appeal in situations where a defendant has entered a plea of guilty or no contest.

ORS 138.050 provides, in part:

“(1) Except as otherwise provided in ORS 135.335,¹ a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.

“ * * * * *

“(3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.”

Defendant argues that the “judgment contains two dispositions that exceed the maximum allowable by law—the DUII conviction and the sentence—because the trial court had no authority to impose either after the case had been dismissed.” Thus, defendant posits that ORS 138.050 allows him to appeal, and allows this court to review a challenge to, his conviction. As explained below, neither the text of the pertinent statutes when read in context, nor the prior opinions of the appellate courts, ultimately support defendant's reading of ORS 138.050.

Defendant's position rests on the assumption that his conviction is a “disposition,” as that term is used in ORS 138.050(1), and the related assumption that a conviction that is legally flawed necessarily is one that “exceeds the maximum allowable by law.” The term “disposition,” as used in this context, is a legal term of art that can mean, broadly speaking, “[a] final settlement or determination court's disposition of the case>.” Black's Law Dictionary 505 (8th ed. 2004). Under that broad definition, defendant's proposition—that a conviction is a disposition—could be correct. However, ORS 138.050(1) refers to “disposition” in the context of orders or judgments “described in ORS 138.053.” ORS 138.053, in turn, provides:

“(1) A judgment, or order of a court, if the order is imposed after judgment, is subject to the appeal provisions and limitations on review under ORS 138.040 and 138.050 if the disposition includes any of the following:

“(a) Imposition of a sentence on conviction.

“(b) Suspension of imposition or execution of any part of a sentence.

“(c) Extension of a period of probation.

“(d) Imposition or modification of a condition of probation or of sentence suspension.

“(e) Imposition or execution of a sentence upon revocation of probation or sentence suspension.

“(2) A disposition described under subsection (1) of this section is not subject to appeal after the expiration of the time specified in ORS 138.071 for appealing from the judgment or order imposing it, except as may be provided in ORS 138.510 to 138.680.

“(3) Notwithstanding ORS 138.040 and 138.050, upon an appeal from a judgment or order described in subsection (1)(c) to (e) of this section, the appellate court may review the order that extended the period of the defendant's probation, imposed or modified a condition of the defendant's probation or sentence suspension or revoked the defendant's probation or sentence suspension if the defendant shows a colorable claim of error in the proceeding from which the appeal is taken.”

(Emphasis added.) That statute, in short, provides that a disposition “includes” various matters pertaining to a sentence or probation. It refers to the disposition in conjunction with “the appeal provisions and limitations on review under ORS 138.040 and 138.050.” As noted, ORS 138.050 allows appeal and review if the “disposition” is one that exceeds the maximum allowable by law or is cruel and unusual. ORS 138.040, by contrast, authorizes the appellate court not only to review dispositions that exceed the maximum allowable by law or are cruel and unusual, ORS 138.040(1)(b), but also to review “[a]ny decision of the court in an intermediate order or proceeding.” (Emphasis added.) Thus, were the present case proceeding under ORS 138.040, there is no doubt that the “decision of the court” in the “intermediate order” from November 2007 that defendant seeks to challenge here would be reviewable on appeal.

Put another way, if defendant's understanding of “disposition” is correct, and “disposition” includes the conviction itself and any error in the proceeding that potentially affects the validity of that conviction, then ORS 138.040 and ORS 138.050 both offer an equally broad scope of review. As a purely textual matter, that seems unlikely. Where a statute contains “several provisions or particulars,” we attempt to construe it to “give effect to all.” ORS 174.010. Generally, “we assume that the legislature did not intend any portions of its enactments to be meaningless surplusage.” State v. Stamper, 197 Or.App. 413, 417, 106 P.3d 172,rev. den.,339 Or. 230, 119 P.3d 790 (2005). If defendant were correct that ORS 138.050 allows appellate review in the same manner as ORS 138.040, it is difficult to perceive why the legislature would have enacted both statutes, much less have included additional text in ORS 138.040that specifically allows appellate review of intermediate orders.

In sum, from a purely textual view of ORS 138.050 and related statutes, defendant's proposed construction is problematic. Prior case law, and the legislative history of ORS 138.050 described therein, however, definitively demonstrates that defendant's broad interpretation of ORS 138.050 is not what the legislature intended. See generally State v. Gaines, 346 Or. 160, 171–72, 206 P.3d 1042 (2009) (in interpreting a statute, we look primarily to the text in context, in light of any pertinent legislative history); SAIF v. Walker, 330 Or. 102, 108–09, 996 P.2d 979 (2000) (prior case law forms part of a statute's context).

In State v. Cloutier, 351 Or. 68, 261 P.3d 1234 (2011), the court reviewed at length the history of ORS 138.050, including each version of its predecessor enactments dating from the original in the early 1900s through the present version of the statute, the court's case law interpreting it, and the legislative history of various changes. Id....