State v. Clark

280                   January 2, 2025               No. 12

   This is a nonprecedential memorandum opinion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.
                SCOTT ANDREW CLARK,
                   Defendant-Appellant.
              Josephine County Circuit Court
                   23CR07132; A181694

  Pat Wolke, Judge.
  Submitted November 19, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon
Public Defense Commission, 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 Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  TOOKEY, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)                             281

           TOOKEY, P. J.
         Defendant appeals a judgment of conviction for
one count of felony delivery of a controlled substance, ORS
475.752 (Count 1), and one count of first-degree theft, ORS
164.055 (Count 4), entered after defendant pleaded guilty to
those offenses. On Count 1, the trial court sentenced defendant to 96 months in prison; on Count 4, it sentenced defendant to 13 months in prison to run consecutive to Count 1.
On appeal, in his only assignment of error, defendant contends that the trial court plainly erred in “impos[ing] the
prison sentences to run consecutively,” because the state and
defendant had agreed that the sentences would run concurrently, and, therefore, under ORS 135.407(4), the trial court
was required to impose the sentence on Count 4 concurrent
with the sentence on Count 1.1 Defendant asks this court to
“reverse the sentences and remand to the trial court with
instructions to … impose the sentences concurrently.” The
state responds, among other points, that “the legal point
defendant advances—that ORS 135.407(4) required the
trial court to follow the parties’ agreement with respect to
concurrent sentences—is not ‘obvious’ and ‘beyond reasonable dispute.’ ” For the reasons below, we affirm.
         “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. Tacia, 

, 

 (2024) (some internal quotation marks
omitted).
          In our view, given the applicable statutory scheme,
it is not obvious that ORS 135.407(4) required the trial court
to impose concurrent sentences in this case. That said, the
trial court may have erred, because ORS 135.390 may have
required the trial court to ask defendant whether he wanted
to withdraw his plea after it made the decision to run the
sentence on Count 4 consecutive to the sentence on Count 1,
     1
       ORS 135.407(4) provides, “The district attorney and defendant may stipulate to a specific sentence within the presumptive range provided by rules of the
Oregon Criminal Justice Commission for the stipulated offender classification.
If the sentencing judge accepts the plea agreement, the judge shall impose the
stipulated sentence.”
282                                                State v. Clark

and it did not ask defendant whether he wanted to do so. See
State v. Craig, 

, ___ P3d ___ (2024) (concluding that “ORS 135.390(5)(b) … require[es] the trial
court, in proceedings subject to ORS 135.390(5), to advise
the parties if it decides that the agreed disposition recommendation is inappropriate, then ask whether the defendant
wants to withdraw the plea in light of the court’s decision
not to impose the agreed-upon disposition”). Defendant, however, does not currently assert the trial court plainly erred
by not asking him whether he wanted to withdraw his plea.
         To the contrary, defendant initially raised a second
assignment of error in this case in which he contended that
the trial court erred under ORS 135.390 when it imposed
“a sentence that deviated from the plea agreement without
offering defendant the opportunity to withdraw his plea,”
but he filed a motion, which we granted, withdrawing that
assignment of error. Thus, we do not understand defendant
to be seeking to withdraw his plea, which, presuming that
the agreement between the state and defendant was subject
to ORS 135.390, would be the remedy available to defendant
as a result of the error.
         Because defendant does not seek to withdraw his
plea, even assuming, without deciding, that the trial court
plainly erred by not giving defendant an opportunity to
withdraw his plea under ORS 135.390 before sentencing
him to a consecutive term of incarceration, in this particular circumstance, given the interests of the parties and considering judicial efficiency, we would not exercise our discretion to correct the error. Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991) (in determining whether
to exercise discretion to correct plain error we may consider
the “competing interests of the parties”); State v. Garlitz,

, 

 (2017) (recognizing
that judicial efficiency is a factor in determining whether to
exercise discretion to correct plain error).
         In declining to exercise our discretion, we recognize
that judicial efficiency is a factor that “often offers little useful guidance” in determining whether to exercise our discretion to correct plain error, because “[p]rinciples of judicial
efficiency weigh against our review in nearly all cases where
Nonprecedential Memo Op: 

 (2025)           283

review of unpreserved issues [is] under consideration.” State
v. Benz, 

, 372, 

 (2017). Suffice it
to say that, in cases such as this one, where a defendant
takes affirmative steps to withdraw from this court’s consideration a remedy that may be available to him—e.g., by
withdrawing an assignment of error that asserted a right to
such a remedy—principles of judicial efficiency become more
salient to the question of whether to exercise our discretion.
        Affirmed.