State v. Merrill

Citation492 P.3d 722,311 Or.App. 487
Decision Date19 May 2021
Docket NumberA167806
CourtCourt of Appeals of Oregon
Parties STATE of Oregon, Plaintiff-Respondent, v. Julie Marie MERRILL, Defendant-Appellant.

John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Powers, Judge, and Sercombe, Senior Judge.

LAGESEN, P.J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants in violation of ORS 813.010(4). Defendant pleaded no contest to the charge and entered diversion, as allowed by ORS 813.200 to 813.270. Upon finding that defendant did not satisfy the terms of her diversion agreement, the trial court terminated diversion and entered the judgment of conviction in accordance with ORS 813.255. On appeal, defendant contends that her conviction must be reversed because, in her view, the trial court erroneously terminated diversion and entered judgment on her plea. She also contends that the court erred in imposing a financial obligation outside her presence. But ORS 138.105 states that "[o]n appeal by a defendant," we "ha[ve] no authority to review the validity of the defendant's plea of guilty or no contest, or a conviction based on the defendant's plea of guilty or no contest" except in circumstances not present here. ORS 138.105(1), (5). Because the legislature has precluded review of defendant's conviction under these circumstances, we must affirm defendant's conviction. The legislature has not, however, barred review of defendant's claim regarding the financial obligation, and because, as the state correctly concedes, the trial court erred, we reverse the portion of the judgment imposing the challenged financial obligation.

Reviewability . Our appellate review authority is controlled by statute. That means whether we have authority to review defendant's arguments for reversing her convictions is, for the most part, a question of statutory interpretation. (Defendant also argues that the state and federal constitutions mean we must have the authority to review her claim, but we set those contentions aside for the moment.)

When we interpret an Oregon statute, our objective is to determine what "the enacting legislature most likely intended." Tarr v. Multnomah County , 306 Or. App. 26, 33, 473 P.3d 603 (2020), rev. den. , 367 Or. 496, 479 P.3d 279 (2021). To do so, we examine the statutory "text, in context, and, where appropriate, legislative history and relevant canons of construction." Chase and Chase , 354 Or. 776, 780, 323 P.3d 266 (2014).

In so doing, we keep in mind that "[a] statute's text is the best indicator of legislative intent," Oregon Trucking Assns. v. Dept. of Transportation , 364 Or. 210, 220, 432 P.3d 1080 (2019), as well as the legislature's explicit guidance on how we should read its words: "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted[.]" ORS 174.010.

As noted, because this is an appeal by a criminal defendant, ORS 138.105 is the key statute. It delineates the scope of our review authority in a criminal defendant's appeal: "On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section." ORS 138.105(1). In general, ORS 138.105 permits review of a trial court's intermediate decisions made before a conviction: "Except as otherwise provided in this section, the appellate court has authority to review any intermediate decision of the trial court." ORS 138.105(3). But, as those terms indicate, there are exceptions to reviewability.

One exception addresses pleas and the convictions that result from pleas. In that context, ORS 138.105(5) limits the grounds on which we may review a conviction itself, barring review on all but two grounds:

"The appellate court has no authority to review the validity of the defendant's plea of guilty or no contest, or a conviction based on the defendant's plea of guilty or no contest, except that:
"(a) The appellate court has authority to review the trial court's adverse determination of a pretrial motion reserved in a conditional plea of guilty or no contest under ORS 135.335.
"(b) The appellate court has authority to review whether the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant."

ORS 138.105(5).

The plain text of the provision would seem to preclude review here. Defendant's conviction resulted from a no-contest plea. The words of ORS 138.105 state unequivocally that we have "no authority to review the validity of * * * a conviction based on the defendant's plea of guilty or no contest," subject to two exceptions that, it is undisputed, do not apply here. See State v. Shubert , 310 Or. App. 378, 379, 484 P.3d 406 (2021) (holding that, on appeal of judgment of conviction resulting from guilty plea, ORS 138.105(5) precluded review of issue that had not been reserved in a conditional guilty plea and did not involve merger). The text makes the legislature's intentions clear: Unless otherwise provided, we have no authority to review on appeal challenges seeking to invalidate convictions based on pleas. To conclude otherwise would put us in the position of rewriting the statute. Specifically, we would have to add to the list of reviewable issues that the legislature itself wrote. "But rewriting statutes ‘to insert what has been omitted’ falls outside of ‘the office of the judge.’ ORS 174.010. For that reason, we may not do it under the cloak of interpretation." Tarr , 306 Or. App. at 35, 473 P.3d 603.

Despite the plain text of the statute, defendant urges us to conclude that we have the authority to review and reverse her conviction, making several arguments in support of that conclusion. None of them, ultimately, persuade us that we may disregard the plain textual command of ORS 138.105(5).

First, defendant argues that, correctly read, the statute precludes review of "the validity" of a conviction based on a plea. Defendant argues that the legislature's use of the word "validity," considered in context, signals an intention to bar only challenges to the "legal sufficiency" of a conviction. That means, according to defendant, that

"the statute bars a defendant from disputing the facts that the defendant admitted during their guilty plea or that the prosecutor recited pursuant to a no-contest plea. But the statute does not bar defendants from arguing that, notwithstanding their factual guilt, some other legal impediment precludes the entry of a judgment of conviction."

That interpretation of the statute is not tenable. For one, if the legislature had intended to preclude review in such a limited way, it would have said so explicitly. That is exactly what the legislature did in the whole of ORS 138.105(5) when it identified with a great deal of specificity what issues are reviewable and what issues are not reviewable in an appeal by a criminal defendant. It did the same in ORS 138.115 when it listed the things that can be reviewed in an appeal by the state. Beyond that, if the legislature had intended the bar on review to be so limited, the exceptions to that bar would, in large part, serve no function. ORS 138.105(5)(b) would not be necessary because a challenge to a merger decision is not a challenge to the factual basis for a plea. ORS 138.105(5)(a) would also be of limited utility because, under defendant's reading of the statute, all grounds for challenging a conviction could be raised on appeal—whether or not reserved in a conditional plea agreement—with the exception of the challenge to the factual basis for the plea.

Second, defendant argues that the enactment history of Oregon appellate review statutes suggests that, in enacting ORS 138.105, the legislature intended to return appellate-review law to its pre-1945 condition, as reflected in Oregon's 1864 statute governing appellate review and as described in State v. Lewis , 113 Or. 359, 361-62, 230 P. 543 (1924), adh'd to on reh'g , 113 Or. 359, 232 P. 1013 (1925). Under that state of the law, a criminal defendant could raise legal challenges to a conviction, something that, in defendant's view, would allow her to pursue the challenge to her conviction that she raises in this appeal. To the extent that the enactment history might suggest what defendant argues it does, the suggestion is spectral and does not convince us that adopting defendant's proposed construction of ORS 138.105(5) would be anything other than rewriting it.

Third, defendant argues that the legislative history of ORS 138.105(5) demonstrates that the legislature intended to allow appellate review of challenges like hers. Even if that were so, it would not change our reading of the statute: "When the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests—or even confirms—that legislators intended something different." State v. Gaines , 346 Or. 160, 173, 206 P.3d 1042 (2009).

In any event, the legislative history shows that the legislative intention is exactly the one communicated by the words the legislature selected. As we have explained previously, the legislature enacted ORS 138.105 in 2017 "as part of an overhaul of statutes related to criminal appeals." State v. Davis-McCoy , 300 Or. App. 326, 329, 454 P.3d 48 (2019). The overhaul was the product of an Oregon Law Commission work group. See Report of the Direct Criminal...

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