State v. Wood

                                      169

Submitted February 28, affirmed December 14, 2022, petition for review denied
                         April 20, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     EUGENIE ANN WOOD,
                     aka Eugenia Ann Herrin,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       17CR17477; A174130
                                  

     Defendant appeals from a judgment revoking probation and imposing sentence. In two assignments of error, defendant argues that the trial court erred
when it entered the underlying judgment of conviction, and later when it revoked
probation and entered a corresponding judgment, because the underlying conviction was based on a nonunanimous jury verdict, contrary to Ramos v. Louisiana,

, 

, 

 (2020). Held: ORS 138.105(1)
precludes appellate review of defendant’s challenge to the underlying judgment
of conviction. The trial court did not err in revoking probation and imposing sentence, because the underlying judgment of conviction is presumed to be valid and
defendant cannot challenge the validity of her conviction in this appeal.
    Affirmed.



    Jodie A. Bureta, Judge pro tempore.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
    ORTEGA, P. J.
    Affirmed.
170                                           State v. Wood

        ORTEGA, P. J.
         Defendant appeals from a judgment revoking probation on a conviction for first-degree burglary, ORS 164.225.
In two assignments of error, she argues that the trial court
plainly erred when it entered the underlying judgment of
conviction, and later when it revoked her probation and
entered a probation-revocation judgment, because the underlying conviction was based on a nonunanimous jury verdict, contrary to Ramos v. Louisiana, 

, 

, 

 (2020). We affirm.
          The relevant facts are undisputed. In 2018, a jury
returned a nonunanimous verdict finding defendant guilty
of first-degree burglary. The trial court entered a judgment
convicting defendant of that offense and placing her on 60
months of probation. Defendant did not appeal that judgment. In 2020, defendant admitted that she had violated
the terms of her probation by failing to obey all laws. The
trial court entered a judgment revoking defendant’s probation and imposing a sentence of 19 months in prison and
36 months of post-prison supervision. Defendant timely
appeals from the probation-revocation judgment.
         In her first assignment of error, defendant argues
that the trial court plainly erred under Ramos when it
entered the judgment convicting her of first-degree burglary.
We conclude that ORS 138.105(1) bars appellate review of a
challenge to the underlying judgment of conviction in this
case. ORS 138.105(1) provides that, “[o]n appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of
this section.” The “judgment … being appealed” in this
case is the judgment revoking probation, not the underlying judgment of conviction. Accordingly, we lack authority
in this appeal to review a challenge to the underlying judgment of conviction. Cf. State v. Frye, 

, 

 (1970) (declining to review a challenge to the underlying judgment of conviction on appeal from a probation-revocation judgment where the defendant did not appeal the
judgment of conviction within 60 days as required by statute); City of Portland v. Olson, 

, 

 (1971) (same).
Cite as 

 (2022)                             171

        We turn to defendant’s second assignment of error,
in which she argues that the trial court plainly erred when
it revoked probation and entered a corresponding judgment because the underlying conviction for which she was
on probation was “unlawful” under Ramos. We reject that
argument. “[O]nce final judgment in a criminal case is
entered, its validity and regularity are presumed.” State v.
Jacob, 

, 

 (2006); see also State
v. Young, 

, 

 (1927) (“[The trial
court] had jurisdiction to decide the case rightly or wrongly,
and, until the decision is directly attacked, it remains as
a determination of the controversy.”). As noted, defendant
did not appeal the underlying judgment of conviction, and
she cannot challenge the validity of her conviction in this
appeal. Accordingly, the trial court did not err, plainly or
otherwise, in revoking probation and imposing sentence on
that basis.
        Affirmed.