State v. Soto

• Citation: 268 Or.App. 822,343 P.3d 666
• Decision Date: 04 February 2015
• Docket Number: A151123.,10060954
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Roger William SOTO, Defendant–Appellant.
• Court: Court of Appeals of Oregon

268 Or.App. 822

343 P.3d 666

STATE of Oregon, Plaintiff–Respondent

v.Roger William SOTO, Defendant–Appellant.

10060954

A151123.

Court of Appeals of Oregon.

Argued and submitted Aug. 19, 2014.

Decided Feb. 4, 2015.

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie Contreras, Assistant Attorney–in–Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

TOOKEY, J.

In this criminal case, defendant pleaded no contest to driving under the influence of intoxicants (DUII), a Class A misdemeanor, and entered into a diversion agreement. ORS 813.010(4) ; ORS 813.200 ; ORS 813.210 ; ORS 813.230. Because defendant could not afford to pay for the treatment required in diversion, the trial court eventually terminated the diversion agreement and entered the plea of no contest. ORS 813.255. The resulting judgment imposed fines and fees totaling $2,453.¹ Defendant appeals, arguing that, in light of his indigency, the court had discretion to waive the fines and fees and that it failed to exercise that discretion; he asks us to reverse and remand for the trial court to exercise its discretion under a proper understanding of the law. Although the state concedes that the trial court misunderstood the law with respect to two of the fees² —that is, it had discretion to waive those fees but did not exercise it—the state nonetheless contends that we lack jurisdiction over this appeal and, therefore, must dismiss it.³ We agree that we lack jurisdiction; accordingly, we dismiss the appeal.

The parties agree that ORS 138.050(1) controls the appealability of a judgment, like the one at issue, convicting a defendant who pleaded guilty or no contest to a misdemeanor and imposing sentence. ORS 138.050(1) provides:

“Except as otherwise provided in ORS 135.335, [ (regarding conditional guilty pleas,) ] 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.”

Under that provision, after a plea of guilty or no contest, a defendant may not challenge the conviction, whether it is for a misdemeanor or a felony. State v. Clements, 265 Or.App. 9, 21, 333 P.3d 1177 (2014) ( ORS 138.050(1) prohibits “a defendant's challenge to a conviction—as opposed to a sentence—when the defendant has pleaded guilty”). When a defendant who has pleaded to a misdemeanor appeals based on “something other than [a] challenge [ ] to a conviction,” we have jurisdiction only if the defendant has made a colorable showing that the disposition “[e]xceeds the maximum allowable by law” or “[i]s unconstitutionally cruel and unusual.” State v. Davis, 265 Or.App. 425, 432, 335 P.3d 322 (2014) (citing State v. Brewer, 260 Or.App. 607, 609, 320 P.3d 620, rev. den., 355 Or. 380, 328 P.3d 696 (2014) ) (emphasis in Davis ); ORS 138.050(1).

Here, the parties dispute whether defendant's first five assignments of error, in which he contends that the trial court erred in concluding that the statutes authorizing the fines and fees did not give the court discretion to waive the fines and fees, raise a colorable showing that the disposition “[e]xceeds the maximum allowable by law.” ORS 138.050(1)(a). Defendant notes that, under our case law, a disposition exceeds the maximum allowable by law if it is “not imposed consistently with the statutory requirements,” State v. Anderson, 113 Or.App. 416, 419, 833 P.2d 321 (1992), and that we have applied that standard recently in cases where the defendants have challenged the trial court's imposition of attorney fees. See State v. Pendergrapht, 251 Or.App. 630, 631 n. 2, 284 P.3d 573 (2012) (the trial court's imposition of attorney fees “exceeded the maximum allowed by law because the court lacked authority to impose attorney fees absent evidence that [the] defendant ‘is or may be able’ to pay the fees”); State v. Eshaia, 253 Or.App. 676, 678, 291 P.3d 805 (2012) (same).

Defendant argues that the fines and fees here were not imposed consistently with the statutory requirements because, if “the trial court's purported exercise of discretion flows from a mistaken legal premise, the ruling does not fall within the range of legally correct choices.” See State v. Harrell / Wilson, 353 Or. 247, 254, 297 P.3d 461 (2013) (explaining nature of discretion of trial court). Thus, defendant argues that the trial court's failure to exercise discretion granted to it by statute means that the fines and fees were not imposed consistently with statutory requirements and, accordingly, that the disposition exceeds the maximum allowable by law.

The state notes that defendant does not argue that the fines and fees “ ‘exceed’ anything: he admits that the court imposed fines [and fees] in exactly the amount authorized by the relevant statutes.” The state distinguishes our recent cases regarding the imposition of attorney fees on the ground that, here, unlike in those cases, “defendant does not contend that anything prohibited the trial court in this case from imposing the [fines and] fees that it did.” (Emphasis in original.)

The state has the better argument. Defendant is correct that, since 1992, we have interpreted “exceeds the maximum allowable by law” to mean “not imposed consistently with the statutory requirements.”⁴

Anderson, 113 Or.App. at 419, 833 P.2d 321; see also, e.g., Eshaia, 253 Or.App. at 678, 291 P.3d 805 (holding that a claim that trial court lacked authority to impose attorney fees in absence of evidence that defendant is or may be able to pay the fees is a claim that disposition exceeds maximum allowable by law and, therefore, is appealable under ORS 138.050(1)(a) ); Pendergrapht, 251 Or.App. at 631 n. 2, 284 P.3d 573 (same); State v. Easton, 204 Or.App. 1, 3–4, 126 P.3d 1256, rev. den., 340 Or. 673, 136 P.3d 743 (2006) (holding that claim that trial court lacked authority to enter amended judgment after original sentence was executed, in order to correct error in original judgment and thus lengthen incarceration period, is a claim that disposition exceeds maximum allowable by law and, therefore, judgment is appealable); State v. Stubbs, 193 Or.App. 595, 606–07, 91 P.3d 774 (2004) (same); State v. Gray, 113 Or.App. 552, 554, 833 P.2d 341 (1992) (“the court was without authority to impose [a] compensatory fine” because the statutory requirements were not met; that disposition was appealable “because the unauthorized compensatory fine exceeds the maximum allowable by law” (internal quotation marks omitted)). However, we have not extended that principle to situations, like this one, where the defendant contends that a legal error—in this case, the trial court's erroneous understanding that it lacked discretion to waive the fines and fees—caused the trial court not to consider him or her for a discretionary sentence that is less than the maximum sentence that the trial court has authority to impose.

In State v. Anderson, 197 Or.App. 193, 104 P.3d 1175, rev. den., 338 Or. 583, 114 P.3d 504 (2005), the defendant appealed from a judgment entered after she pleaded guilty to second-degree robbery, which carried a statutory minimum sentence under ORS 137.700. The trial court had sentenced the defendant to the statutory minimum sentence. The defendant argued that the trial court had erred in concluding that she did not qualify for an exception to the statutory minimum, which would have allowed the court to exercise its discretion to impose a shorter sentence. Id. at 195, 104 P.3d 1175.

We concluded that we lacked jurisdiction under ORS 138.050(1)(a) and dismissed the appeal.⁵ We explained that our cases holding that “[e]xceeds the maximum allowable by law” means “not imposed consistently with statutory requirements”

“do not stand for the proposition that every error having an adverse effect on a disposition is appealable. They stand, at most, for the proposition that an erroneously imposed disposition (one ‘imposed [in] consistently with the statutory requirements') is appealable if the error might have caused a sentence that exceeds the maximum allowable by law. ”

Anderson, 197 Or.App. at 199, 104 P.3d 1175 (insertion in Anderson; emphasis added). We had no jurisdiction over the defendant's appeal because, “if the trial court erred, that error deprived [the] defendant only of an opportunity to be considered for a subminimum sentence; it did not expose her to a sentence that exceeded the legal maximum.” Id. at 199–200, 104 P.3d 1175; see also Easton, 204 Or.App. at 5 n. 1, 126 P.3d 1256 (noting that, in Anderson, “there was no basis for concluding that the sentence [the defendant] received in any way exceeded ‘the maximum allowable by law’ ”).

Thus, Anderson forecloses the argument that defendant makes. In Anderson,we determined that any error that the trial court made in misapplying the statutory prerequisite to a discretionary downward departure sentence did not “expose [the defendant] to a sentence that exceeded the legal maximum,” and, accordingly, ORS 138.050(1) did not allow the appeal. Anderson, 197 Or.App. at 199–200, 104 P.3d 1175. Here, as in Anderson, it is undisputed that the trial court had authority to impose the sentence that it did. Defendant contends only that “the trial court misunderstood its authority to waive the fines and fees and, as a result, failed to exercise [its] discretion”; defendant does not contend that the court had any legal obligation to consider defendant's indigency before imposing sentence. Accordingly, any error by the trial court in failing to recognize that it had discretion to waive the fines and fees did...