State v. Keys

                                      603

   Submitted on remand from the Oregon Supreme Court July 14, affirmed
  November 17, 2021, petition for review denied March 24, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   CLIFFORD DARRELL KEYS,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       16CR24492; A163519
                                   

    This criminal appeal is before the Court of Appeals on remand from the
Oregon Supreme Court, State v. Keys, 

, 

 (2021), and concerns defendant’s felony conviction for possession of methamphetamine. The sole
issue on remand is whether the trial court plainly erred by proceeding to trial
and entry of judgment in the face of defendant’s undisputedly invalid waiver of
preliminary hearing. Although the state does not dispute that defendant’s initial
waiver was defective, it argues that he later implicitly waived preliminary hearing by entering a plea, without objection, in the presence of counsel. Held: The
trial court did not plainly err, because the question whether entry of a plea under
those circumstances constitutes a waiver of preliminary hearing remains, at a
minimum, reasonably in dispute.
    Affirmed.



  On remand from the Oregon Supreme Court, State v.
Keys, 

, 

 (2021).
    Sean E. Armstrong, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeHOOG, J.
    Affirmed.
604                                                           State v. Keys

           DeHOOG, J.
          This case comes to us on remand from the Supreme
Court, State v. Keys, 

, 

 (2021) (Keys II).
In the underlying case, the trial court convicted defendant
following a bench trial of one count of felony unlawful possession of methamphetamine and entered judgment accordingly. On appeal, defendant assigned error to the trial court’s
entry of judgment, arguing that his waiver of preliminary
hearing had not been knowing and was therefore invalid.
Defendant argued that this defect in the proceedings either
(1) deprived the trial court of subject-matter jurisdiction or
(2) resulted in plain error that we were compelled to correct.

. Because we agreed with defendant’s first argument,
we reversed his conviction on the ground that, given defendant’s defective waiver of a preliminary hearing, the trial
court lacked subject-matter jurisdiction to enter judgment; we
did not reach defendant’s plain-error argument. State v. Keys,

, 

 (2020), rev’d, 

, 

 (2021) (Keys I). In Keys II, the Supreme Court
reversed our decision based on its conclusion that a defective
waiver of the right to a preliminary hearing does not deprive a
circuit court of subject-matter jurisdiction. 

. The
Supreme Court remanded to us with instructions to consider
defendant’s plain-error argument that we previously had not
reached. 

. For the reasons that follow, we conclude
that the trial court did not plainly err, and we affirm.
        We begin by reviewing the pertinent facts, which
we described in Keys I:
   “Defendant was arrested for possession of methamphetamine in violation of ORS 475.894, and an information was
   filed charging him with that felony crime. At defendant’s
   arraignment, the court greeted defendant and stated that it
   was ‘going to be appointing [a particular lawyer] to be your
   attorney and she is going to assist you with this arraignment
   this morning.’ The lawyer and defendant had a brief interaction, which was transcribed, after which the lawyer purported to waive defendant’s rights to a pretrial hearing[.][1]

    1
      Our previous decision also includes the transcribed interaction between
defendant, defense counsel, and the trial court. We have omitted that transcription here because, as noted below, neither party disputes that the interaction
constituted an invalid waiver of preliminary hearing.
Cite as 

 (2021)                                               605

    … After a series of status conferences and a hearing on
    a suppression motion, which the court denied, defendant
    waived his right to a jury trial and the court convicted him
    on stipulated facts.”

 (first brackets in original).2
          As defendant acknowledges, issues not raised in the
trial court typically may not be raised and considered for
the first time on appeal. ORAP 5.45(1) (“No matter claimed
as error will be considered on appeal unless the claim of
error was preserved in the lower court.”). However, there is
a well-established exception to the preservation requirement
for cases involving “so-called ‘plain error’—that is, an error
apparent on the record, about which there is no reasonable
dispute.” Peeples v. Lampert, 

, 

(2008). To qualify as “plain error,” an asserted error must be
(1) one “of law”; (2) it must be “apparent, i.e., the point must
be obvious, not reasonably in dispute”; and (3) “it must appear
‘on … the record.’ ” Ailes v. Portland Meadows Inc., 

, 

 (1991) (quoting State v. Brown, 

, 

 (1990) (ellipsis added)). Whether
an alleged error is “plain” presents a question of law. See
State v. Gornick, 

, 

 (2006).
         Because defendant raised no objection regarding his
waiver of preliminary hearing in the trial court, he asserts
that, by proceeding to trial and entry of judgment in the face
of his undisputedly invalid waiver, the trial court committed
an obvious error warranting plain-error review. In support
of that argument, defendant relies on State v. Vasquez, 

, 611 n 10, 

 (2008) (stating that the right to
a preliminary hearing “must either be observed or affirmatively waived before a district attorney may charge a person
on an information”).3 For its part, the state does not dispute
    2
      As the Supreme Court explained in this case, to prosecute a person for a
felony offense, the state may proceed by precuring a grand jury indictment, or
it may proceed by a district attorney’s information if (1) the defendant knowingly waives indictment; (2) the state establishes probable cause at a preliminary
hearing before a magistrate; or (3) the defendant knowingly waives the right to
a preliminary hearing. Keys II, 

 (discussing Article VII (Amended),
section 5(3) - (5) of the Oregon Constitution).
    3
      In his briefing, defendant cited State v. Barber, 

, 

(2007), and argued that the right to a preliminary hearing—or the right to be
606                                                           State v. Keys

that defendant’s purported waiver did not satisfy Article VII
(Amended), section 5(3) - (5) of the Oregon Constitution. The
state argues, however, that the trial court did not commit
plain error in trying defendant and entering a judgment
of conviction against him after trial. For the reasons that
follow, we agree with the state that the trial court did not
plainly err.
          The question whether it is beyond reasonable dispute that the trial court erred in proceeding as it did is
answered—in the negative—by our decision in State v.
Sheppard, 

, 

 (1978), rev den, 

 (1979). In Sheppard, we held that, “by entering a plea,
without objection, in the presence of counsel, defendant
waived the preliminary hearing specified in Amended Art
VII, § 5(5).” Id. at 73. Thus, under Sheppard, defendant would
have waived his right to a preliminary hearing when, without objection, he entered a plea of not guilty in the presence
of counsel, and his defective waiver of that right through
counsel would have no bearing on the trial court’s authority
to proceed to trial and, ultimately, entry of judgment. Or, at
a minimum, that is at least arguably so. As a result, even if
we might conclude, were we to re-examine Sheppard, that by
proceeding to trial with counsel defendant did not waive any
procedural irregularity with regard to his express waiver—
through counsel—of his right to a preliminary hearing, our
existing decision in that case prevents us from concluding
that it is beyond dispute that the court erred in proceeding
as it did.
         We recognize that, in Keys I, we offered a somewhat
different view of Sheppard, one that limited its decision to its
unique procedural facts. Keys I, 

. Even
then, however, we recognized that, as a matter of procedure—
as opposed to a jurisdictional matter—the court in Sheppard
had “correctly concluded that reversal was not required, given
the defendant’s failure to raise the procedural defect in the
trial court (essentially, the defendant had failed to preserve

prosecuted only upon a knowing waiver of that right—is one of the “unique
rights” that, under Barber, fits within an exception to the ordinary preservation
requirement. The Supreme Court rejected that argument in Keys II, 

, and we do not consider it further.
Cite as 

 (2021)                             607

a challenge to a potential procedural problem that was not
jurisdictional in nature).” 

.
         Thus, even following our decision in Keys I, the question whether entry of a plea, without objection, in the presence of counsel, constitutes a waiver of preliminary hearing
remains reasonably in dispute. As a result, and notwithstanding the conceded invalidity of defendant’s waiver of his
right to a preliminary hearing through counsel, the alleged
error raised on appeal—namely, whether the trial court
erroneously proceeded to trial and entry of judgment—does
not qualify as plain error. Accordingly, we decline to consider defendant’s contentions on appeal with respect to the
court’s entry of a judgment of conviction against him, and
we again affirm.
        Affirmed.