State v. Haggard

444                   March 5, 2025               No. 184

   This is a nonprecedential memorandum opinion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.
         DOUGLAS CHARLES HAGGARD, JR.,
            aka Douglas Charles Haggard,
                Defendant-Appellant.
             Union County Circuit Court
                18CR75476; A180718

  Thomas B. Powers, Judge.
  Submitted January 9, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  AOYAGI, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)             445

        AOYAGI, P. J.
          Defendant appeals a judgment revoking probation and sentencing him to 120 months in prison and three
years of post-prison supervision (PPS). In two assignments
of error, he argues that the trial court erred in imposing the
prison term, to which he stipulated, and plainly erred in
imposing the PPS term, to which he claims not to have stipulated. We conclude that the first issue is unreviewable. As
for the second issue, either it is unreviewable, or the error is
not plain. Accordingly, we affirm.
         Defendant was charged with 11 offenses in this case
and two offenses in another case. Pursuant to a plea deal, he
pleaded guilty in this case to felon in possession of a firearm
(Count 1), unlawful possession of marijuana item—commercial drug offense (Count 9), and unlawful possession of methamphetamine—commercial drug offense (Count 11), and he
pleaded guilty in the other case to aggravated first-degree
theft. The state dismissed the remaining charges. The parties stipulated as follows regarding sentencing: discharge
on Counts 1 and 9 in this case; 60 months of supervised probation on Count 11 in this case, with 120 months in prison
if revoked, based on a stipulated grid block classification
of 10B; and discharge on the aggravated theft count. The
trial court accepted defendant’s pleas, imposed 60 months of
supervised probation, and imposed a suspended sentence of
120 months in prison if probation was revoked.
        Defendant’s probation was subsequently revoked,
and the court sentenced him to 120 months in prison and
three years of PPS. Defendant moved to amend the judgment, arguing that the court exceeded its authority by
imposing a 120-month sentence on Count 11, when a Class
C felony carries a maximum sentence of 60 months under
ORS 161.605(3). The court ultimately denied that motion.
Defendant reprises his argument on appeal, as well as making a new argument as to the three-year PPS period.
         We conclude that defendant’s first assignment of
error, regarding his prison sentence, is unreviewable. We
have “no authority to review any part of a sentence resulting
from a stipulated sentencing agreement between the state
446                                          State v. Haggard

and the defendant.” ORS 138.105(9). Defendant acknowledges that we have previously held claims similar to his to
be unreviewable. See, e.g., State v. Neill, 

,

, rev den, 

 (2023) (claim that stipulated revocation sentence exceeded the maximum allowed
sentence was unreviewable under ORS 138.105(9)); State v.
Valenti, 

, 

 (2022) (challenge
to 60-month stipulated sentence was unreviewable); State
v. Davis-McCoy, 

, 

 (2019)
(challenge to stipulated revocation sentence was unreviewable). He argues, however, that ORS 138.105(9) does not
apply because he did not expressly stipulate to receiving
an unlawful sentence. We rejected that argument in Neill,

, including related constitutional challenges, and do so again here. See also State v. Colgrove, 

, 

 (2022) (rejecting similar constitutional challenges to ORS 138.105(5)). The first assignment
of error is unreviewable.
         In his second assignment, defendant argues that
the trial court plainly erred by imposing three years of PPS,
because he did not stipulate to any PPS and the addition
of the PPS term caused his total sentence on Count 11 to
exceed the maximum allowable sentence by an extra three
years. The state takes the position that defendant effectively
stipulated to three years of PPS by stipulating to a 10B grid
block classification.
         Although neither party points it out on appeal, there
is inconsistent information in the record regarding PPS as
part of the agreed revocation sentence. On the one hand,
significantly, the plea petition expressly states that defendant is stipulating to grid block 10B, that the presumptive
sentence is 116 to 120 months in prison, and that PPS is
three years, while also acknowledging that the maximum
sentence is five years.




On the other hand, the offer letter attached to the plea petition, which is identified as reciting the agreed sentencing
Nonprecedential Memo Op: 

 (2025)            447

recommendation, does not mention PPS. Given its level of
detail, the omission seems intentional. Moreover, the sole
reference to grid block 10B does not sound like a stipulation
to PPS, given its location in the letter, as well as its phrasing: “Defendant will stipulate to the 10B grid block (120
months). This prison time will be suspended over his head.”
Also, no one mentioned PPS at the plea hearing, and PPS is
not mentioned in the pre-revocation judgment of conviction.
The original and amended pre-revocation judgments state,
in relevant part, as to the revocation sentence on Count
11: “Gridblock stipulated by the parties. If revoked in [sic]
defendant will serve 120 months in DOC. The state would
stipulate to AIP.”
         The ambiguity regarding PPS is fatal to defendant’s second assignment of error. If defendant did stipulate
to three years of PPS, then his claim of error is unreviewable, for the reasons already discussed. Conversely, if the
record is unclear on whether he stipulated, then any error
is not “plain.” An error is “plain” only 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). Either way, defendant cannot prevail on his second assignment of error.
        Affirmed.