State v. Bacchus

No. 202                 March 27, 2024                      655

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              JESSE JAMES BACCHUS,
                  Defendant-Appellant.
               Crook County Circuit Court
          21CR27729; A179121 (Control), A179125

   Annette C. Hillman, Judge.
   Submitted February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Stacy M. Chaffin, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Affirmed.
656                                                        State v. Bacchus

           POWERS, J.
         In this consolidated criminal appeal, defendant
challenges the trial court’s determination that he was ineligible for sentence reduction programs on one of the counts
to which he pleaded guilty, unlawful use of a weapon with a
firearm (Count 3 in Case No. 21CR27729), because the court
did not find “substantial and compelling reasons to order
that the defendant not be considered for such leave, release
or program” as required by ORS 137.750(1). Defendant concedes that he did not preserve that claim of error but argues
that the error is plain and warrants correction. See ORAP
5.45(1) (providing that “the appellate court may, in its discretion, consider a plain error”); State v. Vanornum, 

, 

 (2013) (outlining requirements of
plain-error review). We affirm.
         Because the parties are aware of the underlying
factual and procedural history, we do not provide a recitation of those details for this nonprecedential memorandum
opinion. On appeal, defendant points out that the “gun minimum statute” that applies to that conviction, ORS 161.610,
limits his eligibility for programs governed by ORS 137.750
but does not make him ineligible.1 Indeed, ORS 161.610
assumes that an offender could be eligible for sentence
reduction programs. See ORS 161.610(3) (“[I]n no case shall
any person punishable under this section become eligible
for work release, parole, temporary leave or terminal leave
until the minimum term of imprisonment is served, less a
period of time equivalent to any reduction of imprisonment
granted for good time served or time credits earned under
ORS 421.121[.]”). Defendant argues that the court’s error is
grave because it denied him the right to earn an 18-month
reduction in his sentence. See ORS 421.121(1), (2); OAR 291-
097-0231(1) (providing that an offender may earn sentence
    1
      Defendant’s opening brief also notes that the trial court erred in establishing the terms of post-prison supervision (PPS) on three different counts of third-degree rape (Count 11 in Case No. 21CR27729 and Counts 3 and 5 in Case No.
21CR29338) because ORS 144.103 does not apply to third-degree rape. He does
not challenge those sentencing errors, however, because the erroneous PPS terms
will effectively merge with a longer PPS term imposed on a first-degree sexual
abuse conviction. See OAR 213-012-0040(1) (explaining that if a defendant “has
been sentenced to multiple terms of post-prison supervision, the terms of post-prison supervision shall be served as a single term”).
Nonprecedential Memo Op: 

 (2024)               657

reductions up to 20 percent of the term of incarceration for
appropriate institutional behavior).
         The state responds that the ends of justice would
not be served by plain-error review in this case because, had
defendant objected at sentencing, the court could have remedied the error by making the necessary findings regarding substantial and compelling reasons. We agree with the
state’s argument. See, e.g., State v. Pierce, 

, 

, rev den, 

 (2015) (explaining
that “we generally do not review unpreserved claims of error
challenging the adequacy of the findings required by ORS
137.750”).
         First, it does not appear from the record that the
trial court was mistaken about program eligibility under
ORS 161.610(3). The court asked the prosecutor whether the
gun minimum sentence was “eligible for good time or AIP
[alternative incarceration programs],” to which the prosecutor responded, “It is not eligible for AIP. I believe it is eligible for good time.” Second, as the state’s argument notes,
defendant’s criminal history and the nature of the crimes
in this consolidated appeal, which involved abuse that the
court described as having “violated the trust of a family”
and “violated the trust of children,” would have allowed the
trial court to make the required findings. Accordingly, even
if the trial court plainly erred, we decline to exercise our
discretion to correct it. See State v. Opitz, 

, 

 (2015), rev den, 

 (2016) (declining to exercise discretion to correct a similar error where
“the trial court could easily have remedied that failure by
making the findings based on the record before it”).
         Affirmed.