State v. Silsby, A154131
| Decision Date | 09 November 2016 |
| Docket Number | A154131 |
| Citation | 282 Or.App. 104,386 P.3d 172 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Steffany Camil Silsby, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.
This appeal requires us to decide whether we have appellate jurisdiction and, if so, whether defendant's claim of sentencing error is subject to appellate review. The appeal arises from a judgment revoking defendant's probation and sentencing her to 80 months' incarceration. Defendant stipulated to that sentence in her plea agreement, but assigns error to it, contending that it is longer than the 25–26 month sentence authorized by the sentencing guidelines for a probation revocation sentence and that, notwithstanding her stipulation, the trial court lacked authority to impose it. In response, the state contends that ORS 138.222(7), which defendant invokes as our source of jurisdiction, does not confer appellate jurisdiction, requiring dismissal of this appeal. Alternatively, the state argues that, even if we have jurisdiction, ORS 138.222(2)(d) bars our review of defendant's sole claim of error. We conclude that we have jurisdiction over this appeal pursuant to ORS 138.222(7), but that ORS 138.222(2)(d) precludes review of defendant's sole assignment of error. Accordingly, we affirm.
The facts pertinent to our decision are primarily procedural and not disputed. Defendant was charged with three heroin-related felonies: unlawful delivery of heroin within 1,000 feet of a school, ORS 475.852 (Count 1); delivery of heroin, ORS 475.850 (Count 2); and possession of heroin, ORS 475.854 (Count 3). Before trial, the state gave notice that it intended to prove sentence enhancement facts at trial. However, the parties ultimately entered into a plea agreement under which defendant agreed to plead guilty to Count 1 in exchange for the state's agreement to dismiss Counts 2 and 3. The terms of that agreement required the parties to stipulate jointly to a recommended "downward dispositional sentence" of 36 months' probation which, if revoked, would result in defendant serving an upward durational departure sentence of 80 months' incarceration:
"Defendant stipulates that, if probation is revoked, she shall be sentenced to an UPWARD DEPARTURE SENTENCE of eighty (80) months prison, with NO SB 936, with thirty-six (36) months Post Prison Supervision."
The trial court accepted defendant's plea and the parties' stipulated sentence, and entered a judgment of conviction on Count 1 that sentenced defendant to probation. That judgment includes defendant's stipulation to the 80–month sentence upon revocation of probation:
"IT IS FURTHER ORDERED AND ADJUDGED that: The defendant stipulates that if this probation is revoked, she SHALL be sentenced to an upward departure sentence of 80 months prison with no 936 and 36 months post-prison supervision."
Defendant was not successful in complying with the terms of her probation, and the trial court thus revoked it. Notwithstanding her stipulation, defendant argued that the trial court could not impose the 80–month sentence because that sentence exceeded the presumptive maximum sentence under the guidelines for a probation revocation sentence under the circumstances of this case. The trial court rejected that argument, imposed the 80–month sentence to which defendant had stipulated, and defendant now appeals the court's probation revocation judgment.
On appeal, defendant's sole claim of error is that the trial court erred by imposing the 80–month sentence to which she had stipulated because, in her view, it exceeds the maximum sentence that would be authorized under the sentencing guidelines. As for her stipulation, defendant contends that, as a matter of law, a trial court lacks authority to impose a sentence that exceeds what would be authorized under applicable guidelines or statutes, even if a defendant agrees to the sentence. As noted, the state contends that ORS 138.222(7) bars our exercise of jurisdiction over this appeal altogether or, alternatively, that ORS 138.222(2)(d) bars review of defendant's sole claim of error.
Defendant invokes ORS 138.222(7) as the source of our jurisdiction over this appeal. That provision states, in relevant part:
The state disputes that ORS 138.222(7) confers jurisdiction and argues that this appeal should be dismissed for lack of jurisdiction. The state advances two arguments as to why that is so. First, the state contends that the judgment in this case does not qualify as a "judgment of conviction based on the sentence " because, in the state's view, a probation revocation sanction is not a "sentence" for purposes of ORS 138.222. Second, the state notes that this appeal is from a probation revocation proceeding and that, as a result, ORS 138.222(7) requires that defendant make "a colorable claim of error in [the] proceeding" below in order to pursue this appeal. Foreshadowing its next argument—and somewhat circularly—the state argues that defendant's sole claim of error is not reviewable on appeal by operation of ORS 138.222(2)(d) and that, therefore, defendant has not shown "a colorable claim of error" in the proceeding below.
The state's first argument—that the judgment at issue is not a "judgment of conviction based on the sentence for a felony"—is foreclosed by our recent decisions in State v. Orcutt , 280 Or.App. 439, 443 n. 5, 380 P.3d 1105 (2016), and State v. Johnson , 271 Or.App. 272, 275, 350 P.3d 556 (2015). In Orcutt , for example, we rejected an argument identical to the one the state makes here. We explained that, under the Supreme Court's decision in State v. Lane , 357 Or. 619, 630, 355 P.3d 914 (2015), a judgment imposing a probation revocation sanction in a felony case is a "judgment of conviction based on a sentence" for purposes of ORS 138.222(7), so as to make such a judgment appealable under that provision.
As to the state's second argument, the state does not appear to dispute that, but for the potential impediment to reviewability, defendant's appeal raises a colorable claim of error. That is, the state does not argue that defendant's claim of error is not a "plausible" one, given the facts of the proceeding below and current state of the law. See State ex rel. Dept. of Human Services v. Rardin , 338 Or. 399, 406–08, 110 P.3d 580 (2005) ().1 Instead, the state's sole argument is that defendant's claim is not "colorable claim of error" because it is not a reviewable one, regardless of its potential merit. In other words, as we understand the state's argument, the state is contending that, to invoke our jurisdiction under ORS 138.222(7), a defendant must demonstrate not only a plausible claim that an error occurred in the proceeding below, but also that that claim of error, ultimately, is one that is reviewable.
We disagree for two reasons. First, the plain terms of ORS 138.222(7) require a defendant to make a "showing [of] a colorable claim of error in [the] proceeding" from which the appeal arises. That wording suggests that the focus of the required "showing" is on what happened below in the trial court, and not on whether any identified error will be reviewable in this court under applicable rules of reviewability.
Second, when the legislature has intended to require an appellant to make a threshold showing of reviewability, in addition to a showing of some potentially meritorious claim of error, it has provided a more explicit indication of that intention than it has in ORS 138.222. For example, former ORS 144.335(6) (2001), repealed by Or. Laws 2007, ch. 411, § 1, required a person seeking judicial review of a decision of the parole board to make a threshold "showing in [a] motion that a substantial question of law is presented for review " to obtain judicial review of the board's decision. (Emphasis added.) Construing the emphasized wording, the Supreme Court concluded that by requiring a showing that a question was "presented for review" the legislature intended to require a showing that the question raised not only had potential legal merit but was one that, as a procedural matter, was "capable of adjudication" in the case, in addition to having potential substantive merit. Atkinson v. Board of Parole , 341 Or. 382, 390, 143 P.3d 538 (2006).
ORS 138.222(7), by contrast, does not contain similar wording requiring a defendant to show that a "colorable claim of error in a proceeding" below is in fact "presented" for this court's review; it simply requires a defendant to show a colorable claim of error in...
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