State v. Percell

                               547

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
         Submitted September 14, affirmed October 26, 2022


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              GAVEN CHARLES PERCELL,
                  Defendant-Appellant.
               Marion County Circuit Court
                  20CR31243; A175728


  DeAnn L. Novotny, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
548                                           State v. Percell

        TOOKEY, P. J.
         Defendant appeals a judgment convicting him of
first-degree criminal mistreatment (Count 1), ORS 163.205,
and sentencing him to 36 months of supervised probation.
Defendant pleaded guilty to Count 1 pursuant to a plea
agreement under which the state would recommend a downward departure from the presumptive sentence of 36 months’
probation to a sentence of 24 months’ probation. After convicting defendant on Count 1 based on his plea of guilty, the
court declined to adopt the state’s recommended downward
departure sentence and, instead, imposed the presumptive
sentence of 36 months’ probation. On appeal, defendant
argues that the court plainly erred when it imposed the presumptive probation sentence without giving him an opportunity to withdraw his guilty plea. We affirm.
         Defendant’s conviction on Count 1 was based on his
plea of guilty, and he asks this court to reverse the judgment
of conviction. 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 also
State v. Merrill, 

, 

, adh’d to
as modified on recons, 

, 

 (2021)
(“The text [of ORS 138.105] makes the legislature’s intentions clear: Unless otherwise provided, we have no authority
to review on appeal challenges seeking to invalidate convictions based on pleas.”). Because “the legislature has precluded review of defendant’s conviction under these circumstances, we must affirm defendant’s conviction.” Merrill, 

.
        Affirmed.