State v. Rubio

                                    549

   This is a nonprecedential memorandum opinion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, petition for review denied
                     February 23, 2023 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                        JESUS RUBIO,
                      Defendant-Appellant.
                 Josephine County Circuit Court
                      21CR14619; A175983


   Robert S. Bain, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, 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.
550                                            State v. Rubio

        TOOKEY, P. J.
         Defendant challenges a judgment convicting him of
supplying contraband (Count 1), ORS 162.185, and sentencing him to a 12-month term of imprisonment. Defendant
pleaded guilty to Count 1 pursuant to a plea agreement
under which the state recommended, among other things,
a 12-month term of imprisonment that would run concurrently with defendant’s term of imprisonment on a conviction in a separate case. The court convicted defendant
on Count 1 based on his plea of guilty. At sentencing, the
trial court declined to impose a concurrent sentence and,
instead, imposed the 12-month term of imprisonment to run
consecutively. Defendant then asked for an opportunity to
withdraw his plea, which the trial court denied. On appeal,
defendant argues that the trial court erred when it imposed
a consecutive sentence without providing him an opportunity to withdraw his plea. We affirm.
         Here, the challenged judgment of conviction was
entered based on defendant’s 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 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.