State v. Webster, 280 Or. App. 217

Background

Defendant pleaded no contest to third-degree robbery; trial court found the Repeat Property Offender (RPO) statute, ORS 137.717(1), applied, exposing him to a 28-month presumptive RPO sentence while the sentencing guidelines placed him at grid block 5‑B (13–14 months).
Court accepted a plea stipulation and granted a downward dispositional departure to 24 months of supervised probation.
State later alleged probation violations; after a contested revocation hearing the court revoked probation and imposed 28 months incarceration with 24 months post-prison supervision (an RPO-length sanction).
Defendant did not object at the revocation hearing but appealed, arguing the court exceeded the maximum revocation sanction authorized by OAR 213-010-0002(2) because the rule’s reference to the “maximum presumptive prison term which could have been imposed initially” refers only to guidelines grid presumptive terms, not statutory presumptive RPO terms.
The State argued the claim is unreviewable under ORS 138.222(2)(a) (presumptive guideline sentences unreviewable) and, alternatively, that the claim is unpreserved and not plainly erroneous.
The court held the claim is reviewable (ORS 138.222(2)(a) covers guidelines grid presumptives, not statutory presumptives), but the claim was unpreserved and not plainly erroneous; the judgment was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Reviewability under ORS 138.222(2)(a)	State: sanction is within a “presumptive sentence” because OAR 213-003-0001(16) defines presumptive to include statutory presumptives, so appeal is barred	Defendant: sanction falls outside guidelines grid presumptive range (5‑B), so ORS 138.222(2)(a) does not bar review	Court: ORS 138.222(2)(a) refers to presumptives prescribed by the sentencing guideline grid blocks; statutory presumptives are not covered — claim is reviewable
Whether OAR 213‑010‑0002(2) authorized imposing an RPO statutory presumptive as a revocation sanction	State: OAR 213‑010‑0002(2) allows imposing “the maximum presumptive prison term which could have been imposed initially,” and a statutory presumptive counts as a presumptive under OAR definitions, so RPO sanction permissible	Defendant: the rule’s phrase refers to the guidelines grid presumptive term only (per Hicks); RPO statutory presumptive cannot be imposed as a revocation sanction under that rule
Preservation / Plain error	State: defendant failed to object at revocation; any error is unpreserved and not plain	Defendant: although unpreserved, Hicks establishes the error is plain and obvious	Court: error unpreserved and not plain — no plain‑error relief; affirmed
Application of Hicks and related authority	State: Hicks dealt with consecutive sentencing rules and did not bar use of statutory presumptives for revocation sanctions	Defendant: Hicks supports that statutory presumptives are not presumptives for rule purposes	Court: Hicks is distinguishable and does not resolve the issue; absence of controlling precedent means the question was reasonably in dispute

Key Cases Cited

State v. Hicks, 249 Or. App. 196 (Or. Ct. App. 2012) (addressed interplay of statutory presumptives and commission rules in consecutive sentencing context)
State v. Denson, 280 Or. App. 225 (Or. Ct. App. 2016) (state argued revocation sanction unreviewable under ORS 138.222(2)(a))
State v. Althouse, 359 Or. 668 (Or. 2016) (interpreted the referent of ORS 138.222(2)(a) as grid‑block presumptives)
Meader v. Meader, 194 Or. App. 31 (Or. Ct. App. 2004) (procedural point: consider reviewability before merits)
Peeples v. Lampert, 345 Or. 209 (Or. 2008) (plain‑error standard explanation)
Ailes v. Portland Meadows, Inc., 312 Or. 376 (Or. 1990) (plain‑error test elements)
State v. Brown, 310 Or. 347 (Or. 1990) (plain‑error standard discussion)
State v. Gornick, 340 Or. 160 (Or. 2006) (allegation of plain error is a question of law)
State v. Jordan, 249 Or. App. 93 (Or. Ct. App. 2012) (unpreserved error was reasonably in dispute where court had not addressed issue)
State v. Johnson, 271 Or. App. 272 (Or. Ct. App. 2015) (ORS 138.222 applies in felony probation revocation proceedings)
State v. Lane, 357 Or. 619 (Or. 2015) (context for application of ORS 138.222)