State v. Tanner

Jun 16, 1993
90C-21505, 90C-21506, 90C-21507. CA A74936 (Control), CA A74937, CA A74938
Versions:854 P.2d 941
121 Or. App. 104
1993 Ore. App. LEXIS 1048
DEITS, P. J.

Defendant was convicted of three counts of burglary in the first degree. ORS 164.225. He appeals from the consecutive sentences imposed and the sentencing court’s determination of the length of his sentences using a criminal history score of “E” and not “I,” in violation of OAR 253-12-020(2)(a)(b). We conclude that we lack authority to review the claim of error and affirm.

Through negotiations with the state, defendant agreed to a stipulated facts trial on the three counts of burglary in the first degree, and the state agreed not to indict defendant on other uncharged burglaries. As part of the agreement, defendant also agreed to admit liability for both the charged and uncharged burglaries at sentencing for purposes of setting restitution. There were no other sentencing recommendations in the plea agreement.

In State v. Adams, 315 Or 359, 847 P2d 397 (1993), the Supreme Court held that ORS 138.222(2)(d) precludes appellate review of a sentence resulting from a plea agreement. We have since held, based on Adams, that when a defendant and the state agree that the defendant will plead guilty and that the state will make a recommendation as to the length of incarceration, the sentence “results from” the plea agreement, and ORS 138.222(2)(d) precludes our review of the sentence. State v. Johnston, 120 Or App 165, 851 P2d 1156 (1993). We have also held that when the state and a defendant agree that the defendant will plead guilty and the state will make no recommendation as to the length of the sentence, the sentence also “results from” the plea agreement, and we are precluded from reviewing the sentence. State v. Kilborn, 120 Or App 462, 852 P2d 935 (1993).

This case presents yet another form of a plea agreement. Here, in exchange for the state’s agreement not to indict defendant on other uncharged burglaries, he agreed to the stipulated facts trial and agreed to admit to liability for the charged and uncharged burglaries at sentencing for purposes of setting restitution. Following the reasoning of State v. Adams, supra, State v. Johnston, supra, and State v'. Kilborn, supra, defendant’s sentence “resulted from” the negotiated agreement with the state, and we are precluded from reviewing it under ORS 138.222(2)(d).

Affirmed.