State v. Canales

                                 668

    Argued and submitted November 18, 2019, affirmed January 2, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 CESAR ULISES CANALES,
                    Defendant-Appellant.
                  Lane County Circuit Court
                    16CR27515; A167563
                              

   Maurice K. Merten, Judge.
   Kyle Krohn, 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.
   Patricia G. Rincon, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Hannah K. Hoffman, Assistant Attorney General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2020)                                                   669

             PER CURIAM
         Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII). Defendant pleaded guilty, and the trial court entered an order of
diversion that withheld entry of the judgment of conviction
pending completion or termination of diversion. Defendant
completed all terms of the diversion agreement within
the diversion period, except for his attendance at a victim
impact panel. He completed that term one week after the
diversion period had ended. Because defendant failed to
complete the terms of diversion within the diversion period,
the trial court terminated the diversion, entered a judgment
of conviction for DUII, and sentenced defendant.
         On appeal, defendant argues that the trial court
erred in terminating his diversion, because the diversion
statutes did not require the court to terminate diversion.
Defendant argues that his late completion of the victim
impact panel did not violate the terms of his diversion or,
alternatively, that the trial court had discretion to excuse
that late completion and dismiss his case. Further, defendant contends that we have authority to review his assignment of error despite ORS 138.105(5), which provides that
“[t]he 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
with respect to matters that are not applicable here.
         The state, in turn, argues that ORS 138.105(5) makes
defendant’s appeal unreviewable. On the merits, the state
argues that the court did not have discretion to excuse defendant’s late completion of the victim impact panel, because,
under ORS 813.255(3)(b)1 a court must terminate diversion
   1
       ORS 813.255(3)(b) provides:
        “Except as provided in subsections (4), (5) and (6) of this section, the court
   shall terminate the diversion agreement and enter the guilty plea or no contest plea that was filed as part of the petition for the diversion agreement if
   the defendant fails to appear at the hearing on the order to show cause or if,
   at the hearing on the order to show cause, the court finds by a preponderance
   of the evidence that:
         “…
      “(b) The defendant failed to fulfill all of the terms of the diversion agreement.”
670                                          State v. Canales

when a defendant fails to fulfill the obligations of the diversion agreement.
         In this case, we decline to decide whether ORS
138.105(5) precludes appellate review of defendant’s assignment of error. As we stated in State v. Edison, 

, 

 (2019), “[i]f the decisions are not
reviewable, the correct result is to affirm. If the decisions
are reviewable but defendant’s arguments fail on the merits,
the correct result is still to affirm.” Here, we assume, without deciding, that we have authority to review defendant’s
arguments, and we reject those arguments on the merits
without further discussion.
        Affirmed.