This is a criminal appeal in which defendant pleaded guilty in 2000 to five counts of crimes committed against his children before the passage of Ballot Measure 11 (1994) but then fled Oregon before sentencing. In 2009, defendant was sentenced after his apprehension in California. Defendant now appeals the judgment of conviction for one count of sodomy in the first degree, ORS 163.405, and four counts of sexual abuse in the first degree, ORS 163.427.
Defendant assigns error to the sentencing court’s denial of his motions to postpone sentencing (his first assignment of error), to withdraw his guilty plea (his second assignment), and to enforce the original plea agreement reached in 2000 (his third assignment). Defendant’s sentence, which includes a 190-month prison term that the state recommended, differs significantly from what the state had agreed to recommend to the court as part of the 2000 plea agreement. The state has moved to dismiss the entire appeal on two grounds: first, that we lack jurisdiction
For the reasons below, we decline to dismiss defendant’s appeal under the former-fugitive doctrine and instead conclude (1) that defendant’s first assignment of error is appealable under ORS 138.222(7) but nonetheless unreviewable; (2) that we lack jurisdiction to adjudicate defendant’s second assignment of error; and (3) that defendant’s third assignment of error, although appealable and reviewable, fails on its merits.
I. BACKGROUND
The relevant facts are procedural. On October 30, 2000, defendant pleaded guilty to four counts of first-degree sexual abuse and one count of first-degree sodomy, after his attorney confirmed with the court that it would be bound by a negotiated plea and sentence. All of the crimes were alleged to have occurred in 1991 or later. The prosecutor described on the record the sentence that defendant would receive as follows: he would receive a dispositional departure to a 20-year term of probation and serve six months in the county jail, with alternatives to reduce the time to be served allowed; pay a compensatory fine to the victims, his daughters; complete sex-offender treatment as required by a probation officer; and have standard probation conditions for sex offenders, such as registration as a sex offender. The court’s minutes of the proceedings for the change of plea also reflect those terms and that “Judge Hodges is bound to negotiations.”
The sentencing was then set for November before a second judge. That judge declined to sentence defendant because, after hearing the statements of one of the victims and of defendant’s ex-wife, he disagreed that the court should be bound by the negotiated sentence. He referred the matter back to the first judge.
A week later, the parties again appeared before the first judge, who had learned what had occurred at the sentencing hearing. That judge informed defendant that the court would no longer be bound to give him the sentence called for by the parties’ agreement, stating that the negotiated sentence was no longer “a guaranteed result” but that it “could well be that after everything shakes out, that would be what happens.” The judge also told defendant that, in light of that change, defendant could consider whether he wanted to withdraw his plea. The sentencing was then reset to occur on a date in December, before any judge, to enable the victims to attend.
On December 6, 2000, the parties appeared before a third judge for sentencing. The prosecutor explained that she had misunderstood that the victims supported the negotiated sentence, and she understood that they were willing to testify at a trial. The prosecutor further explained that there would be no “bound agreement” in light of the fact that two sentencing judges had refused to be bound and that a presentence investigation would have to be done. Defendant then elected to go forward with his plea. The court ordered a presentence investigation report, with sentencing to be rescheduled to a date in February 2001 to allow time for the report to be prepared. On the same day that defendant made his election, the prosecutor wrote a memorandum to the presentence investigation report writer stating that the “state has made no commitments for a recommendation” on sentencing and that the case could be considered as one with an “open sentence.”
The court issued an order setting defendant’s sentencing for February 13, 2001, but defendant absconded and failed to appear. The court issued a bench warrant for his arrest. More than eight years later, defendant was arrested in California and returned to Oregon. Defendant was brought before the court on October 8, 2009. Defendant’s attorney did not appear with him. The court
The same attorney who represented defendant during the proceedings in 2000 represented defendant again for his sentencing in 2009. Defendant moved to postpone the sentencing and filed two other motions before sentencing, one to withdraw his guilty plea and one to enforce the plea agreement. His motion to withdraw his plea was premised on an argument that the state had breached the plea agreement. He contended in the motion to enforce the plea agreement that, if he could not withdraw his guilty plea, the state was obliged to continue to recommend the agreed-upon sentence from October 2000 at his sentencing. The state, represented by a different prosecutor than in 2000, opposed all three motions.
The parties then appeared at the sentencing hearing on October 14, which occurred before the same judge who had ordered the presentence investigation report in 2000. During argument on the three motions, the prosecutor acknowledged that the state had agreed to adhere to the negotiated sentencing recommendation at the February 2001 sentencing. However, the prosecutor explained that, because defendant had absconded, the state “no longer feels bound by those negotiations.” The state recommended that defendant receive consecutive sentences on four of the counts totaling 190 months in prison and a concurrent sentence on the remaining count. The sentencing court denied defendant’s motions, followed the state’s recommendation, and sentenced defendant, among other things, to serve 190 months in prison.
Defendant now appeals, asserting three assignments of error. In his first assignment, defendant asserts that the sentencing court abused its discretion by denying his motion to set over the sentencing so that his attorney could adequately prepare. In his second assignment, he argues that the state breached the plea agreement when the prosecutor told the presentence investigation report writer in 2000 that there was no sentencing recommendation, which in his view entitled him to withdraw his plea. If that is not so, defendant argues in his third assignment of error, then the state had to perform its. obligation under the 2000 plea agreement; in other words, the prosecutor was required to recommend to the sentencing court, and the court should have considered defendant eligible for the much different, agreed-upon probationary sentence.
In addition to filing its responsive brief, the state has moved to dismiss the appeal based on lack of jurisdiction and the former-fugitive doctrine. The Appellate Commissioner ordered the parties to further brief the jurisdictional question in light of State v. Cloutier,
II. MOTION TO DISMISS
A. Appealability
In its motion, the state first contends that we lack jurisdiction over the appeal given both the applicable jurisdictional limitations when a defendant appeals after pleading guilty, as set forth in ORS 138.050(1), and the nature of defendant’s assignments of error. Under ORS 138.050(1), except as provided in ORS 135.335, which allows for conditional pleas,
“a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:
“(a) Exceeds the maximum allowable by law; or
“(b) Is unconstitutionally cruel and unusual.”
The state contends that ORS 138.050(1) applies to defendant’s appeal because he pleaded guilty. And, the state argues, defendant challenges only “pre-sentencing orders” rather than the “disposition” as required by ORS 138.050(1).
Defendant responds that, because his case involves felonies committed after November 1,1989, ORS 138.050(1) is inapplicable and
“(1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided in this section.
“(7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:
“(a) A sentence was entered subsequent to a plea of guilty or no contest!.]”
(Emphasis added.) Defendant notes that ORS 138.222(1) allows an appeal for “a sentence imposed for a judgment of conviction” on the felonies in this case “only as provided by” ORS 138.222. And, in defendant’s view, we have jurisdiction as provided in ORS 138.222(7) because, in each of his assignments of error, he appeals “based on the sentence” and raises a “colorable claim of error in a proceeding” involving a sentence that was entered after his guilty plea.
Recently, after briefing in this case was completed, we decided State v. Brewer,
In Brewer, we explained that, under the Supreme Court’s decision in Cloutier, “ORS 138.050 governs appeal and review of sentences only for misdemeanors.”
Because the state argued in Brewer that the Supreme Court’s observations concerning ORS 138.222 in Cloutier were dicta, we also independently examined the text and context of ORS 138.222(7) and concluded that ORS 138.222(7) is the “exclusive appealability provision governing appeals of felony sentences” following a guilty plea.
That, in turn, gives rise to the state’s secondary argument that the requirements of ORS 138.222(7) are not met and that ORS 138.050 therefore governs the appeal. As earlier noted, the text of ORS 138.222(7) plainly sets forth an additional jurisdictional prerequisite when a defendant appeals: the defendant also must show “a colorable claim of error” in the “proceeding.” The parties do not appear to disagree that defendant’s appeal concerns a “proceeding” in which a sentence was entered after a plea of guilty, ORS 138.222(7)(a), namely, a sentencing proceeding. Nor do the parties appear to disagree that defendant has asserted colorable claims of error in his sentencing proceeding. Rather, this case presents a significant jurisdictional question centering around statutory construction of the phrase “based on the sentence” as used in ORS 138.222(7).
The state considers ORS 138.222(7) to be like ORS 138.050(1) in requiring, as a foundation
In contrast, defendant views appealability under ORS 138.222(7) as broader in scope than under ORS 138.050(1). Defendant argues that, because he raises challenges to the sentencing proceeding and those challenges are reviewable under ORS 138.222(4)(a), all of his assignments of error are challenges “based on the sentence” imposed after his guilty plea and that jurisdiction exists under ORS 138.222(7). To state it another way, defendant argues that we should understand the scope of our jurisdiction to be at least as broad as the scope of issues that are reviewable under ORS 138.222(4). That argument is much like the jurisdictional argument offered by the defendant in Brewer. See
We had no occasion to resolve the statutory construction issue presented in this case when we decided Brewer. That is so because the defendant in Brewer had challenged the terms of the sentence itself — specifically, the duration of her prison term. To resolve the question here, the parties primarily present contextual arguments in support of their respective positions. Neither party offers an argument based on legislative history.
As explained below, we conclude that the legislature’s use of the phrase “based on the sentence” in ORS 138.222(7) was intended to limit an appeal by a defendant who pleads guilty to a felony to assignments of error concerning either the terms of the sentence or procedural or legal errors bearing directly on the terms of the sentence, congruent with the scope of issues that are reviewable under ORS 138.222. Thus, we reject the state’s argument that we must analyze our jurisdiction based simply on cases construing and applying the jurisdictional limits stated in ORS 138.050a).
We begin the statutory analysis with the text of ORS 138.222(7). Again, the first sentence of ORS 138.222(7) provides that “the state or the defendant may appeal a judgment of conviction” for a felony “based on the sentence.” There is no statutory definition of that phrase. However, a definitional statute provides that, as used in ORS 138.010 to 138.310, “unless the context requires otherwise, the terms defined in ORS 19.005 have the meanings set forth in ORS 19.005.” ORS 138.005. The definitions contained in ORS 19.005 pertain to appeals generally, and ORS 19.005 does not contain a definition of the phrase “based on the sentence” or of “sentence.” However, a “sentence” is a well understood term of art. The legislature likely intended “the sentence” to refer to a sentence that the trial court is required to impose for commission of an offense, as set forth in ORS 137.010(1) (“The statutes that define offenses impose a duty upon the court having jurisdiction to pass sentence in accordance with this section or, for felonies committed on or after November 1, 1989, in accordance with rules of the Oregon Criminal Justice Commission unless otherwise specifically provided by law”). See State ex rel O’Leary v. Jacobs,
On the other hand, what the legislature intended by an appeal “based on” the sentence is not resolved by reference to the plain meaning of the text. In ordinary usage, “to base” means “to use as a base or basis for: ESTABLISH, FOUND — used with on or upon!’ Webster’s Third New Int’l Dictionary 180 (unabridged ed 2002). A “base,” in turn, may refer to “the fundamental part of something.” Id. Thus, the phrase “based on the sentence,” which qualifies an “appeal” in ORS 138.222(7), can be understood in common usage to mean that the appeal must be founded on the sentence as its fundamental part. That still leaves room for either the state’s view that a term of the sentence must be directly at issue, as with appealability under ORS 138.050, or defendant’s view that ORS 138.222 defines a broader scope of sentencing-based issues that are appealable and reviewable than does ORS 138.050.
In the second sentence of ORS 138.222(7), the legislature also requires a defendant who has pleaded guilty or no contest to establish a “colorable claim of error” in the “proceeding,” such as the sentencing proceeding in this case. As we noted in Brewer, that requirement was added in 2001 and “allowed early dismissal of a nonmeritorious appeal.”
We next turn to the context of ORS 138.222(7), which is at the heart of the parties’ arguments. As we explained in Brewer, ORS 138.050(1) concerns both appealability and reviewability, and “the issues that may be appealed and those that may be reviewed in the appeal are the same” in ORS 138.050(1) when a defendant has pleaded guilty or no contest, namely, “whether the disposition exceeds the maximum allowable by law or is unconstitutionally cruel and unusual.”
The state, on the other hand, contends that appropriate context for understanding ORS 138.222(7) — and governing law — includes not only other subsections of ORS 138.222 but
Given the terms of ORS 138.222, we agree with defendant that the legislature intended the scope of appeal based on a sentence under ORS 138.222(7) to be at least as broad as the scope of reviewable issues in ORS 138.222 and, specifically in this case, as defendant urges, ORS 138.222(4)(a). However, we also conclude, in line with the state’s argument, that the legislature did not intend ORS 138.222(7) to displace the prohibition on a defendant’s challenge to a conviction — as opposed to a sentence — when the defendant has pleaded guilty, as provided by ORS 138.040 and ORS 138.050.
As for the breadth of ORS 138.222(7), other subsections of ORS 138.222 serve to contradict the state’s argument that we should look only to case law construing ORS 138.050(1) for guidance on what is appealable under subsection (7). Subsection (2) specifies what is not reviewable generally:
“Except as otherwise provided in subsection (4)(c) of this section, on appeal from a judgment of conviction entered for a felony committed on or after November 1,1989, the appellate court may not review:
“(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.
“(b) A sentence of probation when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.
“(c) A sentence of imprisonment when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.
“(d) Any sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record.
“(e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing.”
Subsection (3) of ORS 138.222 describes reviewability of a sentence when the judgment of conviction imposes “a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.” Subsection (4) of ORS 138.222 specifies what is reviewable generally:
“In any appeal, the appellate court may review a claim that:
“(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;
“(b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes; or
“(c) The sentencing court erred in failing to impose a minimum sentence that is prescribed by ORS 137.700 or 137.707.”3
As the text of ORS 138.222(4) makes plain, the legislature has not copied the standard of reviewability and appeal-ability provided in ORS 138.050(1) for misdemeanors and placed it in ORS 138.222.
Moreover, ORS 138.222(4) describes what is reviewable in broader terms than ORS 138.050(1), including claims that the sentencing court “failed to comply with requirements
At the same time, ORS 138.222(7) governs appeal-ability in felony cases when the challenge is “based on the sentence,” and the Supreme Court in Cloutier stated that, “[i]n a nutshell, *** appeal and review of sentences imposed for felonies committed after November 1, 1989, are governed by ORS 138.222.”
In sum, we hold that any assignment of error to a matter not based on the sentence in a felony case is not directly appealable under ORS 138.222(7). This case includes one such assignment of error. Defendant’s second assignment of error, which challenges the denial of his motion to withdraw his guilty plea, cannot be fairly characterized as a challenge based on the sentence. See Clevenger,
In contrast, defendant’s first and third assignments of error are appealable, because the assignments involve a challenge “based on the sentence.” In his first assignment, defendant challenges the denial of his motion for a continuance of the sentencing hearing. He ties that alleged error to his sentence, arguing that his lawyer was prevented from doing what was minimally required to represent him competently at his major felony sentencing, including “client interviewing, investigation, legal research, strategizing, and preparing a persuasive sentencing argument,” and seeking to “verify, supplement, or challenge” the presentence report information. An appeal based upon a procedural error that had some likelihood of affecting the terms of the sentence is, in substance, an appeal “based on the sentence,” and the first assignment is therefore appealable.
Defendant’s third assignment of error is a challenge to the trial court’s denial of his motion to enforce the plea negotiations. As we will describe later in the discussion of the merits of this assignment of error, defendant seeks to require the state to recommend to the sentencing court that he receive the negotiated sentence, including the 20-year probation term. That assignment directly bears on the term of defendant’s sentence because he seeks the opportunity to urge the sentencing court to follow the state’s recommended sentence and to be considered for a far different sentence than the one he received. Defendant’s third assignment of error is focused on the terms of the sentence itself. As such, it is “based on the sentence,” and we have jurisdiction to decide it.
B. Former-fugitive doctrine
Having concluded that defendant’s first and third assignments of error are appealable, we next consider whether the appeal nonetheless should be dismissed based on the former-fugitive doctrine. Under that doctrine, an appellate court “has inherent judicial authority to dismiss a criminal defendant’s appeal” if the defendant’s former-fugitive status has “significantly interfered with the operation of the appellate process.” State v. Sills,
In Sills, as in this case, the defendant fled Oregon after conviction but before sentencing, and 10 years elapsed before he was sentenced.
In this case, defendant’s remaining first and third assignments of error concern sentencing issues and not the potential for a trial. Although the state argues that other circumstances may support application of the former-fugitive doctrine to bar a criminal defendant’s appeal, namely, intervening changes in the law that benefit the defendant or the involvement of a child victim, neither bars the first or third assignments of error. The former circumstance does not apply in this case and the latter concerns faded memories and the likelihood that a jury years later would have a different reaction to the victim’s testimony as an adult, considerations not presented by defendant’s assignments of error. See Sills,
III. REVIEWABILITY
We next turn to whether defendant’s first and third assignments of error are reviewable. In his first assignment of error, defendant contends that the sentencing court abused its discretion in denying his October 2009 motion to postpone sentencing. In his third assignment of error, defendant asserts that the trial court erred by “denying defendant’s motion to enforce the parties’ plea negotiations.” Defendant asserts that those assignments are reviewable because the sentencing court “failed to comply with requirements of law in imposing or failing to impose a sentence,” as provided in ORS 138.222(4)(a). We conclude that defendant’s third assignment of error is reviewable under ORS 138.222(4)(a) in light of Arnold, but that his first assignment of error is not.
In Arnold, we described our construction of the provision in ORS 138.222(4)(a) this way:
“We thus conclude, after considering the statutory text in context, that the application of the ‘failing to impose’ provision of ORS 138.222(4)(a) to these circumstances is unambiguous: That provision permits this court to review a sentencing issue when the sentence that was imposed was an authorized sentence, but the trial court is asserted to have erroneously determined that the defendant was not eligible for a different, also authorized, sentence.”
In the process of analyzing the defendant’s argument in Arnold, we noted that the dispositive issue for purpose of reviewability under ORS 138.222(4)(a) is not simply whether the sentencing court failed to comply with the requirements of law during the sentencing proceedings, but, more narrowly and particularly, whether the court failed to comply with the requirements of law “in imposing or failing to impose a sentence.”
Defendant’s first assignment of error, like the claim of error in Sanchez, does not relate in any discernible way to the sentence that was imposed. That is, defendant has not made a showing that the alleged procedural error— refusing to postpone sentencing — resulted in an unlawful sentence or adversely affected the sentence that was imposed. Cf. Arnold,
We reach a different conclusion with respect to defendant’s third assignment of error. Like the defendant in Arnold, defendant asserts that the trial court erroneously determined that he was not eligible for a sentence he agreed to in the plea agreement — a different and, according to defendant, authorized, sentence. As we held in Arnold, defendant’s assertion here — that a “different, also authorized sentence” should have been considered — is sufficient for review under the plain meaning of ORS 138.222(4)(a).
We recognize that the Supreme Court in Cloutier observed that the “maximum allowable by law” in ORS 138.050 did refer to statutory law and that the term “law” is “notoriously flexible” and can refer to statutory law alone or sweep more broadly.
IV. ENFORCEMENT OF THE 2000 PLEA AGREEMENT
On the merits of his third assignment of error, defendant assumes that principles of contract law apply. See State v. Heisser,
We affirm the sentencing court’s denial of the motion because defendant was no longer entitled to the benefit of the sentencing recommendation that the parties had agreed upon some nine years before the sentencing. Because the state admittedly had agreed to adhere to the negotiated sentencing recommendation from 2000 and defendant submitted evidence with his motion that the prosecutor instead informed the presentence investigation report writer that the “state has made no commitments for a recommendation” on sentencing, defendant established that the state appeared to be on course to breach the plea agreement at the sentencing hearing scheduled to be held in 2001. However, no sentencing occurred in 2001 because defendant absconded. In our view, defendant erroneously concludes that he proved that the state had breached the plea agreement in 2000, and his contention that he was therefore entitled to withdraw his plea fails. See Mohr v. Lear,
Rather, it was defendant who breached the plea agreement. Implicit in the terms of the plea agreement was the requirement that defendant appear for and submit to sentencing. Defendant, therefore, breached the plea agreement by failing to appear at his sentencing and instead absconding for years. As a result, under the contract principles on which defendant relies, defendant is no longer entitled to require the state to recommend the sentence on which the parties agreed in 2000. See Idaho v. Jafek,
In summary, we partially grant the state’s motion to dismiss the appeal with respect to defendant’s second assignment of error, but we otherwise deny the state’s motion to dismiss. We conclude that defendant’s first assignment of error is appealable under ORS 138.222(7) but nonetheless unreviewable under ORS 138.222(4)(a). And, we conclude that defendant’s third assignment of error, although appeal-able under ORS 138.222(7) and reviewable under ORS 138.222(4)(a), fails on the merits.
Appeal dismissed as to defendant’s second assignment of error; otherwise affirmed.
Notes
Our decision in Brewer at least suggested that the state’s argument is incorrect. We noted that,
“because ORS 138.222(7) has different, and not redundant, limitations on the appealability of sentencing judgments than ORS 138.050(1) has, we infer that ORS 138.222(7) operates separately and independently of ORS 138.050(1) in conferring appellate jurisdiction. ORS 138.222(7) is expressly conditioned upon showing any ‘colorable claim of error’ in sentencing (‘The defendant may appeal under this subsection only upon showing a colorable claim of error ***.’), whereas ORS 138.050(1) requires a ‘colorable showing’ that the disposition is statutorily or constitutionally excessive.”
Whether an appeal may be taken and limits on what may be reviewed on appeal are two different things, as the Supreme Court has explained. “Appealability is not identical with reviewability." State v. Montgomery,
Ordinarily, we discuss the “appealability” of judgments and the “reviewability” of particular assignments of error. However, as we will explain, we understand the language of ORS 138.222(7) to require a different analysis in this context.
In 1997, the legislature added ORS 138.222(4)(c) and added a reference to that new provision in ORS 138.222(2). Or Laws 1997, ch 852, § 9.