State v. Johnson, 345 P.3d 490

Defendant pleaded guilty to misdemeanor DUII and entered a diversion agreement requiring evaluation, treatment (if recommended), and payment of fees; failure to comply would lead to conviction.
Defendant completed most diversion terms but made a late fee payment, defaulting under the diversion agreement.
State moved to terminate the diversion; the trial court held a show-cause hearing, terminated diversion, entered conviction, and sentenced defendant to 24 months bench probation with conditions (including alcohol evaluation/treatment) and fines/assessments totaling statutory amounts.
Trial court found defendant indigent and waived appointed counsel fees but stated it believed it lacked discretion to waive the evaluation and certain monetary obligations.
Defendant appealed arguing the court erred in concluding it lacked discretion to waive parts of the sentence; the State moved to dismiss for lack of jurisdiction under ORS 138.050.
The Appellate Commissioner denied the motion relying on Harrell; the appellate court granted the State’s jurisdictional argument and dismissed the appeal without reaching the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court of appeals has jurisdiction under ORS 138.050 to review a sentence imposed after guilty plea when the claim is that the trial court failed to recognize and exercise discretionary authority to impose lesser terms	The State: no jurisdiction because defendant does not show the disposition exceeds statutory maximum or is cruel and unusual	Defendant: denial of opportunity to waive fees/evaluation is legal error; failure to recognize discretion makes the sentence reviewable under ORS 138.050	Court: No jurisdiction — defendant did not make a colorable showing that the disposition exceeds the maximum allowable by law or is unconstitutionally cruel and unusual; appeal dismissed

State v. Pemberton, 226 Or App 285 (illustrates reversible error where court mistakenly believed a greater sentence was mandatory)
State v. Arnold, 214 Or App 201 (trial court error where it failed to recognize statutory sentencing discretion)
State v. Cloutier, 351 Or 68 (appealability after guilty plea is statutory; ORS 138.050 construed narrowly)
State v. Soto, 268 Or App 822 (same issue; error in failing to waive fines/fees did not make sentence exceed statutory maximum)
State v. Harrell / Wilson, 353 Or 247 (discusses bounds of judicial discretion; relied on by commissioner)
State v. Robinson, 158 Or App 494 (dismissal required when appellate court lacks jurisdiction)