State v. Grant

                                       318

Argued and submitted September 14; supplemental judgment regarding Count 1
   affirmed, appeal of judgment regarding probation on Count 2 dismissed
                              October 12, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 RAYMOND LAVAUGHN GRANT,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      19CR45918; A175762
                                   

    Defendant appeals a supplemental judgment convicting him—based on his
plea of guilty—of felony fleeing or attempting to elude a police officer (Count 1),
ORS 811.540. He also appeals another judgment converting his probation for a
separate offense (Count 2) from bench probation to formal probation and imposing a sanction for violating his probation. On appeal, defendant raises two
assignments of error. First, regarding the supplemental judgment as to Count 1,
he argues that the trial court erred when it determined that he had violated
a deferred-sentencing agreement. Second, regarding the judgment continuing
his probation on Count 2, he argues that the court erred when it determined he
had violated a condition of his probation. Held: Because the supplemental judgment of conviction on Count 1 is not reviewable under ORS 138.105(5), the Court
of Appeals affirmed defendant’s conviction on Count 1. Because the judgment
regarding Count 2 is not appealable under ORS 138.035(3), the court dismissed
defendant’s appeal of that judgment.
    Supplemental judgment regarding Count 1 affirmed; appeal of judgment
regarding probation on Count 2 dismissed.



    Leslie M. Roberts, Judge.
   John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
Cite as 

 (2022)                           319

  TOOKEY, P. J.
    Supplemental judgment regarding Count 1 affirmed; appeal
of judgment regarding probation on Count 2 dismissed.
320                                                             State v. Grant

           TOOKEY, P. J.
          In this criminal case, defendant pleaded guilty to
felony fleeing or attempting to elude a police officer (Count 1),
ORS 811.540, and recklessly endangering another person
(Count 2), ORS 163.195, as part of a plea agreement.
Pursuant to that plea agreement, on Count 2, the court
sentenced defendant to 24 months’ bench probation with a
specific judge. See ORS 137.540(8) (“The court may order
that probation be supervised by the court.”); OAR 213-003-
0001(1) (“ ‘Bench probation’ means a probationary sentence
… under the supervision and control of the sentencing
judge.”).1 Additionally, on Count 1, defendant entered into a
deferred-sentencing agreement under which Count 1 would
be dismissed after one year if defendant met certain conditions and complied with his probation on Count 2.
         Later, the trial court determined that defendant had
violated his probation on Count 2. As a result, the trial court
revoked the deferred-sentencing agreement and entered a
supplemental judgment convicting defendant on Count 1
based on his plea of guilty. The court also entered another
judgment continuing defendant’s probation on Count 2, converting defendant’s probation from bench probation to formal
probation, and imposing a sanction of 80 hours of community service for violating probation. Defendant now appeals,
challenging both judgments and raising two assignments
of error. Because the supplemental judgment of conviction
on Count 1 is not reviewable, we affirm defendant’s conviction on Count 1. Because the judgment regarding Count 2
is not appealable, we dismiss defendant’s appeal of that
judgment.

     1
       In this opinion, we use the terms “bench probation” (meaning probation
“under the supervision and control of the sentencing judge,” OAR 213-003-0001(1))
and “formal probation” (meaning probation supervised by the Department of
Corrections or a community corrections agency), because those are the terms
used in the parties’ briefing and oral arguments. ORS 137.540 provides the mechanism regarding supervision of probation. See ORS 137.540(8) (providing that
“[t]he court may order that probation be supervised by the court”); ORS 137.540(9)(b)
(providing that the court may “order[ ] defendant placed under the supervision
of the Department of Corrections or a community corrections agency”). Our use
of the terms “bench probation” and “formal probation” should not be read to suggest that the general conditions of probation in ORS 137.540 apply differently to
“bench probation” and “formal probation.”
Cite as 

 (2022)                               321

         In his first assignment of error, defendant challenges
the supplemental judgment convicting him on Count 1,
arguing that the trial court erred when it determined that
he had violated his deferred-sentencing agreement. As noted
above, defendant’s conviction on Count 1 was based on his
plea of guilty. Except in circumstances not present here, this
court “has no authority to review … a conviction based on
the defendant’s plea of guilty.” ORS 138.105(5); see, e.g., State
v. Jones, 

, 

 (2021) (holding that ORS 138.105(5) precludes appellate review of the
defendant’s conviction that was based on his plea of guilty
and entered after revocation of his deferred sentencing
agreement). Because “the legislature has precluded review
of defendant’s conviction under these circumstances, we
must affirm defendant’s conviction.” State v. Merrill, 

, 

, adh’d to as modified on recons,

, 

 (2021).
         In his second assignment of error, defendant challenges the judgment continuing his probation on Count 2,
converting it from bench probation to formal probation, and
imposing a sanction for violating probation. Under ORS
138.035(3), “A defendant may appeal a judgment or order
[1] extending a period of probation, [2] imposing a new or
modified condition of probation or of sentence suspension,
or [3] imposing or executing a sentence upon revocation of
probation[.]”
         Here, it is undisputed that the judgment at issue
does not extend defendant’s probation or impose or execute a
sentence upon revocation of probation. It does impose sanctions and continue defendant’s probation, but a “judgment
imposing sanctions and continuing probation does not qualify as an appealable judgment under ORS 138.035(3).” State
v. Flores, 

, 

 (2022); see also
State v. Hunt, 

, 

 (2020),
rev den, 

 (2021) (holding that judgment imposing
sanctions and continuing probation does not qualify as an
appealable judgment under ORS 138.035(3)).
        Defendant contends, however, that the judgment
regarding his probation on Count 2 is appealable under ORS
138.035(3), because the trial court “modified a condition
322                                                          State v. Grant

of probation”—specifically, defendant contends, the court
“struck” (i.e., deleted) a “special condition of probation”
assigning a specific judge to supervise his bench probation,
and it converted his probation to formal probation under the
supervision of a probation officer, which “activated” the general conditions of probation contained in ORS 137.540.
         We disagree with defendant that the judgment
regarding his probation on Count 2 is appealable because
it “struck” a “special condition of probation.” Even assuming that the assignment of a specific supervising judge is
a “special condition” of probation, deleting that purported
special condition does not constitute “imposing a new or
modified condition of probation” such that review is available under ORS 138.035(3), because the removal of that condition (and consequential switch to formal probation) did not
impose any new or modified condition of probation; it merely
removed a previously imposed purported condition of probation.2 (Emphasis added.)
         We likewise disagree with defendant that the judgment is appealable because converting his probation to formal probation under the supervision of a probation officer
“activated” the general conditions of probation contained
in ORS 137.540. As provided in ORS 137.540(1), “The court
may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the
court.” (Emphasis added.) Here, the original judgment sentencing defendant to bench probation did not delete any of
the general conditions of probation. Rather, the contrary was
true: The original judgment explicitly stated, “Defendant is
subject to all general conditions of probation (ORS 137.540).”
(Emphasis added.) Consequently, we are not persuaded that
the judgment continuing defendant’s probation as formal
probation imposed any “new or modified condition of probation” such that review is available under ORS 138.035(3).
    2
       We note that, in Hunt, we stated that “[a] ‘condition of probation’ is a
requirement imposed by a ‘governmental actor to avoid a substantial adverse
consequence.’ ” 

 (quoting State v. Bentley, 

,

 (2010), rev den, 

 (2011)). We observe that the identity of
the entity supervising defendant’s probation—e.g., monitoring defendant’s compliance with the requirements of his probation—is not a “requirement imposed
by a ‘governmental actor to avoid a substantial adverse consequence.’ ” Hunt, 

.
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 (2022)                           323

We therefore conclude that the judgment continuing defendant’s probation on Count 2 does not qualify as an appealable judgment under ORS 138.035(3).
         Supplemental judgment regarding Count 1 affirmed;
appeal of judgment regarding probation on Count 2 dismissed.