315 Or. App. 217 - State v. Cordero

                                  217

Submitted May 28, 2020; judgment in Case No. 17CR25625 reversed, judgment
            in Case No. 14CR01398 affirmed October 13, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                MICHAEL VICTOR CORDERO,
                     Defendant-Appellant.
                Columbia County Circuit Court
                   17CR25625, 14CR01398;
                 A169558 (Control), A169559

496 P3d 1076

Jenefer Stenzel Grant, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Judgment in Case No. 17CR25625 reversed; judgment in
Case No. 14CR01398 affirmed.
218 State v. Cordero

PER CURIAM
In this consolidated criminal appeal, defendant
appeals from two judgments: (1) a conviction for violating a
stalking protective order (SPO) in Case No. 17CR25625; and
(2) the revocation of his deferred sentencing agreement for
violating the same SPO and a subsequent entry of a judgment of conviction in Case No. 14CR01398. For the reasons
explained below, we reverse the former judgment and affirm
the latter judgment.
In his first assignment of error, defendant asserts
that the trial court erred when it denied his motion for judgment of acquittal in Case No. 17CR25625, arguing that the
state failed to introduce sufficient evidence to prove that
defendant’s contacts “created reasonable apprehension
regarding the personal safety of a person protected by the
order,” ORS 163.750(1)(c), a required element of the offense
where the contact is “[s]ending or making written or electronic communications in any form to the other person,”
ORS 163.730(3)(d). The state now concedes that the evidence
was insufficient to prove that the contacted person’s fear for
personal safety was objectively reasonable. We accept the
state’s concession and reverse the conviction.
We decline to review defendant’s second assignment of error in which he argues that the trial court erred
when it revoked his deferred sentencing agreement in Case
No. 14CR01398. In that case, defendant pleaded no contest
to violating an SPO. As we recently explained in State v.
Merrill,

311 Or App 487

492 P3d 722

, adh’d to as modified on
recons,

314 Or App 460

495 P3d 219

 (2021), ORS 138.105(5)
bars appellate review of challenges that seek to invalidate
convictions based on pleas of guilty or no contest, except in
limited circumstances not present in this case. See ORS
138.105(5)(a), (b) (allowing review of pretrial motions after a
conditional plea and allowing review of merger determinations); see also State v. Redick,

312 Or App 260

491 P3d 87

(2021) (following Merrill and rejecting the defendant’s due
process arguments). Accordingly, because the legislature
has precluded appellate review of defendant’s challenges in
his second assignment of error, we affirm defendant’s conviction in Case No. 14CR01398.
Cite as

315 Or App 217

 (2021)                     219

        Judgment in Case No. 17CR25625 reversed; judgment in Case No. 14CR01398 affirmed.