State v. Thomas, A175261

• Court: Court of Appeals of Oregon
• Writing for the Court: PER CURIAM
• Citation: 322 Or.App. 379
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. RYAN MICHAEL THOMAS, Defendant-Appellant.
• Docket Number: A175261
• Decision Date: 12 October 2022

322 Or.App. 379

STATE OF OREGON, Plaintiff-Respondent,
v.
RYAN MICHAEL THOMAS, Defendant-Appellant.

A175261

Court of Appeals of Oregon

October 12, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted September 14, 2022

Linn County Circuit Court 18CR63362 Michael B. Wynhausen, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Nora Coon, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

PER CURIAM

Affirmed. State v. Merrill, 311 Or.App. 487, 492 P.3d 722, adh'd to as modifed on recons, 314 Or.App. 460, 495 P.3d 219 (2021); State v. Redick, 312 Or.App. 260, 491 P.3d 87 (2021).

1

[322 Or.App. 380] EGAN, J., concurring.

Defendant pleaded no contest to one count of driving under the influence of intoxicants (DUII), ORS 813.010, and entered into a diversion agreement as allowed by ORS 813.200 to 813.270. The trial court terminated defendant's diversion after denying defendant's motion to extend diversion, and defendant appeals the resulting judgment of conviction for one count of DUII.

I must concur with the majority's disposition in this case because the issue raised is not reviewable. State v. Merrill, 311 Or.App. 487, 496, 492 P.3d 722, 727-28, adh'd to as modified on recons, 314 Or.App. 460 (2021) ("[0]n appeal of a judgment of conviction resulting from a plea of guilty or no contest, ORS 138.105(5) precludes appellate review of defendant's contention that her conviction based on her plea should be reversed because of an alleged error in terminating diversion.").

I nonetheless write to express my concerns about the merits of the trial court's challenged decision to deny an extension of diversion. The trial court chose between two legally cognizable outcomes and, therefore, its decision was not an abuse of discretion. Neither was the trial court's decision made in legal error. Nevertheless, I would be remiss if I did not point out that the matter would not have been presented to us in its current posture had the defense simply refrained from moving for an extension of time to complete the requirements of probation, and in doing so, informing...