255 P.3d 547
Or. Ct. App.2011Background
- In 2001, Johnson was convicted of two counts of murder, felon in possession of a firearm, and manufacture of a controlled substance; the court ordered these terms run consecutively to an assault sentence in another case.
- Following 2005 appellate reversal and remand for a new trial, Johnson pled guilty to Count 1 (manslaughter) and Count 3 (MCS) in a stipulated amended indictment; the state dismissed the other charge.
- The parties stipulated a 120-month sentence on Count 1 and a 45-month sentence on Count 3, with Count 3 to be consecutive to Count 1; the stipulations did not mention running consecutive to the assault sentence.
- At a March 3, 2008 sentencing, the court imposed 120 months on Count 1 and 45 months on Count 3 and ordered Count 3 consecutive to the assault sentence; a March 6, 2008 judgment reflected this.
- An April 3, 2008 status conference and a June 2008 motion to correct under ORS 138.083 indicated an issue to make the judgment reflect consecutive sentencing to the assault conviction; no hearing occurred before the September 10, 2008 amended judgment.
- The amended judgment stated the Count 3 sentence was to be served consecutively to the assault sentence; Johnson appealed claiming lack of authority to amend the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 138.083 authorizes modifying the judgment here | State: ORS 138.083 allows correcting erroneous terms | Johnson: no arithmetic/clerical error or erroneous term; no authority to modify | No authority under ORS 138.083 to amend the judgment |
| Whether the court had inherent authority to reflect the parties’ agreement in the judgment | State: court may reflect agreed sentences | Johnson: no inherent authority to modify to reflect agreement | Court lacked inherent authority to modify the judgment to reflect the agreement |
| Whether preservation of error was required given the amendment | State: defendant had notice and opportunities to object | Johnson: preservation not required when hearing anticipated | Preservation not required; error reviewed on merits |
Key Cases Cited
- State ex rel. O'Leary v. Jacobs, 295 Or. 632 (1983) (common-law rule on post-sentencing jurisdiction and exceptions)
- State v. Nelson, 246 Or. 321 (1967) (exception where sentence void allows substitution of valid sentence)