State v. Higgins

No. 352               May 30, 2024                    769

   This is a nonprecedential memorandum opinion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.
                GARY RAY HIGGINS,
                 Defendant-Appellant.
              Marion County Circuit Court
                 21CR28894; A178854

  Lindsay R. Partridge, Judge.
  Submitted April 30, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Affirmed.
770                                                        State v. Higgins

           ORTEGA, P. J.
         Defendant pleaded guilty to unlawful use of a vehicle
(UUV), ORS 164.135, and he was sentenced to 24 months of
probation. In a single assignment of error, defendant challenges the revocation of his driver’s license for one year pursuant to ORS 809.409.1 Because defendant did not preserve
the issue he raises on appeal and the error is not plain on
this record, we affirm.
         Preliminarily, we reject the state’s argument that
we may not review this appeal. ORS 138.105(9) provides
that we have “no authority to review any part of a sentence
resulting from a stipulated sentencing agreement between
the state and the defendant.” Here, in his plea petition,
defendant checked a box indicating that he understood that
his driving privileges would be suspended. However, at the
plea hearing, when describing the parties’ agreement, the
district attorney stated that he understood that defendant
would be arguing against the one-year license revocation. At
the same hearing, defendant argued that ORS 809.409 did
not apply to the crime of UUV because the term “vehicle” in
ORS 164.135 is broader than the term “motor vehicle” in the
statute revoking driving privileges. In ruling on that argument, the trial court took judicial notice of the fact that an
Acura TL, the vehicle involved in this case, is “a motor vehicle as opposed to, I don’t know, a scooter or something else.”
The trial court therefore concluded that defendant’s crime
of UUV involved a motor vehicle and imposed the one-year
license revocation. Thus, although the parties stipulated to
a downward departure sentence of probation, they did not
agree that defendant’s driver’s license should be revoked.
As a result, we have authority to review the trial court’s
decision to revoke defendant’s driver’s license. See State v.

    1
      ORS 809.409(1)(a) provides that “[u]pon receipt of a record of conviction
of an offense described in this section, the Department of Transportation shall
revoke the driving privileges of the person convicted.” ORS 809.409(1)(c) provides, in part, that “the revocation shall be for a period of one year from the
date of revocation[.]” ORS 809.409(4) provides that “[t]he department shall take
action under subsection (1) of this section upon receipt of a record of conviction
of any felony with a material element involving the operation of a motor vehicle.”
(Emphasis added.) ORS 164.135(1) provides, in part, that a person commits the
crime of UUV when the person “knowingly takes, operates, exercises control over
or otherwise uses another’s vehicle, boat, or aircraft[.]” (Emphasis added.)
Nonprecedential Memo Op: 

 (2024)            771

Rusen, 

, 

 (2022) (explaining that
ORS 138.105(9) “applies to preclude review only of the part
of the sentence on which the parties agreed”).
         Although the appeal is reviewable, we conclude
that defendant failed to preserve the issue that he raises
on appeal. At the plea hearing, defendant argued that ORS
809.409 did not apply to the crime of UUV because “vehicle” is broader than “motor vehicle.” On appeal, defendant
argues that the trial court erred in revoking his driver’s
license because the record of conviction did not establish
that he “operated” the vehicle. Below, defendant did not put
the state or the trial court on notice that he was challenging
whether he operated the vehicle. Because the trial court was
not given an opportunity to address that contention, and the
factual record may well have developed differently had the
matter been raised, we conclude that defendant failed to
preserve the issue. See Peeples v. Lampert, 

,

 (2008) (explaining that preservation “gives a
trial court the chance to consider and rule on a contention,
thereby possibly avoiding an error altogether or correcting
one already made, which in turn may obviate the need for
an appeal,” and “also ensures fairness to an opposing party,
by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by
surprise”).
         Alternatively, defendant requests plain-error review
of whether the trial court erred in revoking his driver’s
license. An error is plain when it is an error of law, the
legal point is obvious and not reasonably in dispute, and
the error is apparent on the record without our having to
choose among competing inferences. State v. Vanornum, 

, 

 (2013). It is a matter of discretion
whether we will correct a plain error. State v. Gornick, 

, 

 (2006).
         Here, the error is not apparent on the face of the
record without our having to choose among competing inferences. The record suggests that defendant was driving the
car because his citation includes a check mark next to the box
stating, “Driver Not Reg. Owner.” In the factual basis for his
plea, defendant admitted that he exercised control over an
772                                          State v. Higgins

Acura TL without the consent of the owner. Although exercising control over a vehicle involves conduct that is broader
than driving it, State v. Howell, 

,

 (2002), based on the citation, it is reasonable
to infer that defendant exercised control over the vehicle by
driving it. And if he drove it, then his felony involved the
operation of a motor vehicle. See State v. Cruz, 

, 

 (1993) (construing a person who
“drives” a vehicle as one who “operates” it under the DUII
statutes). Because we cannot rule out that defendant operated the motor vehicle, the error, if any, is not apparent on
the face of the record. Furthermore, even if the trial court
had plainly erred, we would not exercise our discretion to
correct the error. If the issue had been raised below, then
more information could have been introduced at the plea
hearing regarding how defendant exercised control over the
vehicle. See State v. Thackaberry, 

, 

 (2004), rev den, 

 (2005) (declining to exercise discretion to consider claim of plain error because, if an
objection had been made below, the record likely would have
developed differently). We therefore affirm.
        Affirmed.