State v. Silsby
282 Or. App. 104
Or. Ct. App.2016Background
- Defendant pleaded guilty to unlawful delivery of heroin (Count 1) under a plea agreement dismissing two other counts and stipulating to 36 months probation.
- The plea agreement and judgment included a stipulated upward-departure revocation sentence of 80 months (with 36 months post-prison supervision) if probation were revoked.
- The trial court accepted the plea and later revoked probation; it imposed the stipulated 80-month sentence.
- Defendant appealed, arguing the 80-month sentence exceeded the sentencing-guidelines-authorized maximum for a probation-revocation sanction and the trial court lacked authority to impose it despite her stipulation.
- The State moved to dismiss for lack of appellate jurisdiction under ORS 138.222(7) or, alternatively, argued ORS 138.222(2)(d) barred review of the stipulated sentence.
- The Court of Appeals upheld jurisdiction under ORS 138.222(7) but held ORS 138.222(2)(d) precluded review of the claimed sentencing error because the sentence resulted from a stipulated sentencing agreement the court approved on the record.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 138.222(7) confers appellate jurisdiction over a probation-revocation judgment | ORS 138.222(7) does not confer jurisdiction because a probation-revocation sanction is not a "sentence" for that purpose | ORS 138.222(7) permits appeal from a judgment of conviction based on the sentence after guilty plea and probation revocation | Court: ORS 138.222(7) does confer jurisdiction; probation-revocation judgment qualifies as a "judgment of conviction" under precedent (Orcutt, Johnson, Lane) |
| Whether appellant must show the claimed error is reviewable to satisfy the "colorable claim of error" threshold in ORS 138.222(7) | Appellant must show the claim is ultimately reviewable to invoke jurisdiction | "Colorable claim" requires only a plausible claim of error in the proceeding below, not proof of reviewability | Court: "Colorable claim" focuses on plausibility of error below; not a threshold showing of procedural reviewability |
| Whether ORS 138.222(2)(d) bars appellate review of a sentence resulting from a stipulated sentencing agreement approved on the record | ORS 138.222(2)(d) bars review of stipulated sentences imposed pursuant to plea agreements approved on the record | Defendant contends her stipulated revocation sentence is not the type of stipulated sentence barred by (2)(d) (relying on Kephart and arguing ORS 135.407 does not authorize future revocation stipulations or sentences outside guidelines) | Court: ORS 138.222(2)(d) bars review; under Upton and Kephart a stipulated, specific sentence agreed to and imposed on the record is unreviewable even if not explicitly covered by ORS 135.407 |
| Whether the trial court could impose the stipulated 80-month revocation sentence contrary to the sentencing guidelines | (Implicit) Stipulated sentence should be respected | Stipulation cannot authorize a sentence exceeding statutory/guideline authority; court lacks power to impose it | Court: Did not reach merits because (2)(d) precludes review; upheld sentence as unreviewable despite defendant's contention |
Key Cases Cited
- State v. Orcutt, 280 Or. App. 439 (2016) (probation-revocation sanction is a "judgment of conviction based on the sentence" for ORS 138.222 purposes)
- State v. Johnson, 271 Or. App. 272 (2015) (same conclusion that probation-revocation judgments fall within ORS 138.222)
- State v. Lane, 357 Or. 619 (2015) (Supreme Court decision treated probation-revocation sanction as sentence-based conviction for appellate purposes)
- State ex rel Dept. of Human Services v. Rardin, 338 Or. 399 (2005) (defines "colorable claim of error" as a plausible claim under current law)
- State v. Kephart, 320 Or. 433 (1994) (interprets scope of ORS 138.222(2)(d) and relation to ORS 135.407)
- State v. Upton, 132 Or. App. 579 (1995) (holds that a specific, agreed-upon sentence imposed by the court is the type of stipulated sentence "illustrated in" ORS 135.407 and thus unreviewable under ORS 138.222(2)(d))
- Blackledge v. Morrow, 174 Or. App. 566 (2001) (applies Upton and Kephart: appellate review is barred where parties set a specific sentence and the court imposes it)
- Tharp v. PSRB, 338 Or. 413 (2005) (statutory-interpretation principle: identical phrases in contemporaneous provisions have same meaning)