State v. Walker

No. 220               April 10, 2024                   779

   This is a nonprecedential memorandum opinion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.
           CHRISTINE MARIE WALKER,
                 Defendant-Appellant.
           Josephine County Circuit Court
   22CR17319, 22CR19432; A179546 (Control), A179547

  Pat Wolke, Judge.
  Submitted March 8, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
  SHORR, P. J.
  Affirmed.
780                                          State v. Walker

        SHORR, P. J.
         Defendant appeals from the trial court’s judgment
following defendant’s guilty plea to first-degree criminal
mischief, among other offenses. Defendant argues that the
trial court plainly erred by imposing a 60-month durational
departure sentence under ORS 137.717(4)(b) because the
state failed to prove defendant’s criminal history by way
of a presentence investigation report as required by ORS
137.717(9). The state responds that any error is not plain or
obvious, and even if the court plainly erred, we should not
exercise our discretion to correct the error. We affirm.
         Whether a claim of error qualifies for plain error
review is a question of law. See Ailes v. Portland Meadows,
Inc., 

, 

 (1991) (explaining criteria
for plain error review).
         In this case, defendant’s sentence was governed by
ORS 137.717 which establishes a system of enhanced presumptive sentences for property crime offenders with prior
qualifying convictions. Defendant contends that under ORS
137.717(9), the state was required to prove defendant’s criminal history through the presentence report process established in ORS 137.079. See State v. Escalera, 

, 

 (2008), rev den, 

 (2009) (noting
that, for purposes of ORS 137.717, “ORS 137.079 prescribes
the procedure by which the fact of a previous conviction
must be proved”). Defendant additionally contends that the
record shows that the state failed to conduct or request a
presentence investigation to establish her criminal history
under ORS 137.079. Consequently, defendant argues that
the state failed to meet its burden of proof that defendant
was subject to the 60-month sentence that she received. See
State v. Sumpter, 

, 

 (2009)
(accepting the state’s concession that trial court erred by
sentencing the defendant under ORS 137.717 when the state
represented at sentencing that the defendant was previously
convicted of a “comparable” out-of-state offense but failed to
adduce evidence of such under the procedures established in
ORS 137.717 and ORS 137.079).
Nonprecedential Memo Op: 

 (2024)                                 781

         Even assuming the court plainly erred and defendant’s argument is reviewable,1 we would not exercise our
discretion to correct the error. Ailes, 

 (stating that the court must exercise discretion to consider plain
error). First, we note that in Sumpter, there was “no evidence
… adduced in [that] case to satisfy [the state’s] obligations
under ORS 137.717 and ORS 137.079 to establish defendant’s
criminal history.” 

 (emphasis added). In Sumpter,
the defendant also asserted that the state had incorrectly
recited the nature of his prior criminal history. 

.
Thus, Sumpter did not involve the circumstance present
here—the state presented evidence regarding defendant’s
criminal history, in the form of a criminal history worksheet, and defendant did not object either to the content or
to the form of the state’s presentation of that history.2
         Second, defendant’s failure to timely object to the
lack of a presentence report and to the entry of the criminal
worksheet deprived the state and court of an opportunity
to respond. But most importantly here, defendant did not
argue in the trial court and does not argue on appeal that
the criminal history was incorrect or that the court lacked
the legal authority to impose the sentence based on that
criminal history. Ailes, 

 n 6 (noting discretionary factors including, but not limited to: the gravity of the
error, the ends of justice, and whether the policies behind
the rules of preservation have been served). Indeed, the
court would be almost certain to impose the same sentence
on remand in light of that history and the court’s comments
at sentencing. Given the foregoing, we would not exercise
our discretion even if the error was plain.
           Affirmed.

     1
       See ORS 137.079(5)(f) (“Except as provided in ORS 138.105 and 138.115, the
court’s decision on issues relating to a defendant’s criminal history shall not be
reviewable on appeal.”).
     2
       In the plea offer, the state included the following comment: “defendant has
a very extensive criminal history with numerous property crimes and at least 52
felonies … the state will be filing a notice to rely on enhancement facts at sentencing; defendant’s exposure is more than 60 months DOC plus misdemeanor
tail [sic].” See OAR-213-013-0010 (outlining minimum contents of presentence
reports); see also OAR-213-013-0010(9) (“The sentencing judge may waive the
requirement for any information necessary to establish the presumptive sentence
if that information has been made part of an accepted plea agreement.”).