State v. FarmerState v. Farmer
- Reporters:
- , ,
- Before:
- Peterson
This appeal raises one issue decided adversely to defendant in our recent decision in
State v. Morgan,
316 Or 553, 856 P2d 612 (1993) — whether minimum sentences under
A jury found defendant guilty of murder.
Defendant nоnetheless challenged the sentence on appeal, both with respect to the 25-year minimum sentence and the imposition of a life sentence. The Court of Appeals, without any discussion or recognition of a рossible preservation of error problem, remanded for resentencing in a one-sentence per curiam opinion citing its decision in State v. Morgan, 116 Or App 338, 842 P2d 406 (1992). State v. Farmer, 116 Or App 673, 842 P2d 465 (1992).
In
Morgan,
this court thеreafter affirmed the imposition of a 25-year minimum sentence, holding that the minimum sentences authorized for murder by
This court’s opinion in
Morgan
expressly stated that the second issue presented now
“Wе express no opinion as to whether ‘imprisonment for life’ underORS 163.115(3)(a) maybe appropriate as adepаr-ture sentence. The trial judge in the case at bar made no findings to support such a departure sentencе, so that issue is not before us.” 316 Or at 559.
Here, the state has petitioned for review of the Court of Appeals’ decision remanding defendant’s case for resen-tencing. The Court of Appeals’ decision on the 25-year minimum sentencе for murder in this case relied on the Court of Appeals’ position in
State v. Morgan,
a position that subsequently was rejected by this court in
State v. Morgan, supra,
316 Or at 558: Minimum sentences for murder under
We next address defendant’s assertion that the sentencing guidelines do not authorize impоsition of life imprisonment for murder as a departure sentence. Defendant did not preserve that claim of еrror in the trial court but did raise it in the Court of Appeals. The Court of Appeals’per curiam decision, remanding this case for resentencing and citing its decision in State v. Morgan, is sufficient to establish that the Court of Appeals considered defendant’s сlaim of error on the same grounds discussed and decided in State v. Morgan, supra, 116 Or App at 338. But here, unlike Morgan, the claim of error was not preserved in the trial court.
The unpreserved claim of error cannot be reviewed on appeal because it was not preserved at trial and because it does not qualify for the exception in ORAP 5.45(2) permitting discretionary review оf unpreserved “errors of law apparent on the face of the record.” 3 (Emphasis added.) The claimed error of law in this instance was not “apparent,” bеcause an “apparent” error of law is one as to which the “the legal point is obvious, not reasonably in dispute.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). As was stated in State v. Morgan, supra, 316 Or at 559, the validity of life imprisonment as a departure sentence is an open issue. Its resolution is not “obvious” but is, instеad, reasonably open to dispute for purposes of the “apparent” error analysis as that cоncept is explained in State v. Brown, supra.
In addition, this court recently held that it would not review an unpreserved claim of error merely because the Court of Appeals did so, if the Court of Appeals failed expressly to justify its review as discrеtionary review of an error of law apparent on the face of the record. State v. Castrejon, 317 Or 202, 212, 856 P2d 616 (1993) 4 For the reasons stated in State v. Castrejon, we will not review defеndant’s claim of sentencing error in this case.
The petition for review is allowed. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
“(a) A person convicted of murder shall be punished by imprisonment for life.
“(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shаll be confined for a minimum of 10 years without possibility of parole, release on work release or any form оf temporary leave or employment at a forest or work camp.
“(c) When a defendant is convicted of murder under this section, the court, in addition to the minimum required by paragraph (b) of this subsection, may order that the defendant shall be confined for a minimum term of up to an additional 15 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.
“(d) Thе minimum term set forth in paragraph (b) or (c) of this subsection may be set aside by a unanimous vote of the State Board of Parole and Post-Prison Supervision.”
Relief for the state on review on this basis exists independently of any right to relief on review due to defendant’s failure to preserve a claim of error in the trial court.
ORAP 5.45(2) provides:
“No matter assigned as error will be considered on appeal unless it was preserved in the lower court and assigned as error in the party’s opening brief; provided that the appellate court may consider errors of law apparent on the face of the record.”
State v. Cook, 108 Or App 576, 582, 816 P2d 697 (1991), rev den 312 Or 588 (1992), states: “If a sentencing court exceeds its statutory authority in imposing a spеcific sentence, that is an ‘error of law’ that may be addressed without an objection to the sentencing cоurt.” Although that is true in many cases, it is not true as a categorical statement of the law because it does not take full account of the requirement of ORAP 5.45(2) as interpreted in State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990), that the error of law must be “apparent,” meaning “obvious, not reasonably in dispute.”