527
Submitted September 23, 2019, affirmed June 23, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
WENDY SUE THOMAS,
Defendant-Appellant.
Lake County Circuit Court
16CR41039; A167650
492 P3d 87
Defendant appeals from a supplemental judgment revoking her probation
and imposing two consecutive periods of 25 months’ incarceration as revocation
sanctions. In a single assignment of error, defendant contends that the court
plainly erred in imposing those sentences because OAR 213-012-0040(2) limits
the imposition of consecutive probation revocation sanctions based upon a single supervision violation when the underlying crime involved only one victim. In
response, the state first argues that defendant’s assignment of error is unreviewable under ORS 138.105(9), which bars appellate review of “any part of a sentence resulting from a stipulated sentencing agreement between the state and
the defendant.” The state also asserts that under State v. Silsby, 282 Or App 104,
110-13,
386 P3d 172 (2016), rev den,
360 Or 752 (2017), when a stipulated sentence
is imposed pursuant to an agreement, and the court, in fact, imposes the sentence contemplated in the agreement, former ORS 138.222 (2015), renumbered
as ORS 138.105(9) (2018), bars review. Held: The probation revocation sentence
imposed in this case was unreviewable on appeal. The ultimate disposition, however, may be impacted by the Oregon Supreme Court decision in State v. Rusen,
307 Or App 759,
479 P3d 318 (2020), rev allowed,
368 Or 168 (2021).
Affirmed.
Robert F. Nichols, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
JAMES, J.
Affirmed.
528 State v. Thomas
JAMES, J.
Defendant appeals from a supplemental judgment
revoking her probation and imposing two consecutive
periods of 25 months’ incarceration as revocation sanctions.
In a single assignment of error, defendant contends that
the court plainly erred in imposing those sentences because
OAR 213-012-0040(2) limits the imposition of consecutive
probation revocation sanctions based upon a single supervision violation when the underlying crime involved only one
victim. Defendant acknowledges that the claim of error is
not preserved and that she, in fact, had stipulated to that
consecutive-sentence order at the change-of-plea hearing.
Defendant nonetheless urges us to exercise discretion to
correct the error.
In response, the state first argues that defendant’s
assignment of error is unreviewable under ORS 138.105(9),
which bars appellate review of “any part of a sentence
resulting from a stipulated sentencing agreement between
the state and the defendant.” The state also relies on State v.
Silsby, 282 Or App 104, 110-13,
386 P3d 172 (2016), rev den,
360 Or 752 (2017), in which we concluded that, when a stipulated sentence is imposed pursuant to an agreement and
the court, in fact, imposes the sentence contemplated in the
agreement, former ORS 138.222 (2015), renumbered as ORS
138.105(9) (2018), bars review. Even if reviewable, the state
argues that defendant’s claim was invited, which, under
State v. Harris,
362 Or 55, 67,
404 P3d 926 (2017), “is no
basis for reversal.”
We agree with the state that the probation revocation sentence imposed in this case is unreviewable on
appeal. In State v. Davis-McCoy, 300 Or App 326, 328-30,
454 P3d 48 (2019), we held that ORS 138.105(9) preserved
existing limitations on the reviewability of challenges to
sentences (or parts of sentences) that resulted from stipulations between a defendant and the state. And, as we
explained in Silsby, construing the statutory predecessor to
ORS 138.105(9), the limits on reviewability applied when a
“[sentence] was imposed pursuant to agreement [between
the defendant and the state], it [was] a specific sentence, and
the trial court imposed that agreed-upon specific sentence.”
Cite as
312 Or App 527 (2021) 529
282 Or App at 113; see also Davis-McCoy,
300 Or App at
329.
We recently considered the applicability of ORS
138.105(9) in the context of an appeal from a probation revocation sentence in State v. Rusen, 307 Or App 759,
479 P3d
318 (2020), rev allowed,
368 Or 168 (2021). There, we found
the issue reviewable, but only due to the nature of the agreement made in that case:
“Here, the state points out that, at sentencing, defendant
agreed that, if his probation were revoked, there would be
the potential for consecutive sentences: The parties agreed
that, upon revocation, the state could argue for consecutive
sentences and defendant could argue for concurrent ones.
According to the state, this means that defendant’s consecutive sentences ‘result[ed] from a stipulated sentencing
agreement’ for purposes of ORS 138.105(9), because defendant agreed to the potential of such sentences. But, as
explained, to qualify as the sort of stipulated sentence for
which ORS 138.105(9) bars review, the agreed-to sentence
must be a ‘specific’ one. An agreement that the parties can
argue for different sentences is not an agreement to a specific sentence. Defendant’s claim of error is reviewable.”
Id. at 761 (brackets in original).
Unlike Rusen, the agreement in this case was specific. During the entry of defendant’s original plea, the court
had the following colloquy:
“THE COURT: She’s waiving arguments about consecutive sentences, okay? Thirty-six months’ probation, supervised, no alcohol, marijuana or non-prescription drugs.
Alcohol and drug testing, alcohol treatment—alcohol and
drug treatment, the intensive supervision program, mental
health, 60 days in jail concurrent. In the event of revocation
25 and 25 consecutive, is that correct?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Is that your agreement, Ms. Thomas?
Is that your agreement?
“THE DEFENDANT: Yes, Your Honor.”
Finally, the sentence imposed accurately reflected
this stipulation, as the court orally recited:
530 State v. Thomas
“THE COURT: Okay. I’ll accept your pleas of guilty
in Case Number 16CR41039, I’ll accept each one. The grid
block on Delivery is 8-E, the grid block on the Possession
charge is 6-A, it’s a downward departure from prison to
probation, and she waives any argument—in the event of
revocation it’s 25 months on each and she waives any argument concerning consecutive sentences, they are to be consecutive. There’s 36 months’ probation on both, supervised.
No alcohol, marijuana, non-prescription drugs, testing;
there is treatment, it’s in the intensive treatment court;
you’re also required to undertake mental health treatment.
“There’s 60 days in jail, that is concurrent with the
other charge. And again in the event of revocation it’s 25
months on each count consecutive, for a total of 50 months,
for 50 months.”
We note, however, that the Oregon Supreme Court
recently granted review in Rusen, apparently to address the
scope of ORS 138.105(9). Its decision in Rusen will certainly
affect the ultimate disposition in this case as well.
Affirmed.
