State v. Wheeler

320 Or.App. 273

511 P.3d 1142

STATE of Oregon, Plaintiff-Respondent,

v.David Wayne WHEELER, Defendant-Appellant.

A174860

Court of Appeals of Oregon.

Submitted May 4, 2022.

June 8, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Pagán, Judge, and Armstrong, Senior Judge.

PER CURIAM

Defendant appeals from a probation violation judgment, which revoked his probation and sentenced him to prison and post-prison supervision (PPS) on two counts of attempted sexual abuse in the first degree. See ORS 161.405 (defining attempt and the various attempt crime classifications); ORS 163.427 (defining sexual abuse in the first degree).¹

The trial court sentenced defendant to 51 months in prison and nine months of PPS on Count 1 and 13 months in prison and 47 months of PPS on Count 2. The trial court ordered that the sentence on Count 2 be served concurrently with the sentence on Count 1. Defendant contends that his aggregate sentence, including his time previously served on probation, was unconstitutionally disproportionate under Article I, section 16, of the Oregon Constitution and cruel and unusual punishment under the Eighth Amendment to the United States Constitution. As we briefly explain below, defendant's contention is unreviewable because he stipulated to his specific grid block classifications and now seeks review of that part of his sentence. We therefore affirm.

Defendant pleaded guilty to two counts of attempted first-degree sexual abuse. At the time of his plea, defendant and the state stipulated to specific grid block classifications under the felony sentencing guidelines for defendant's crimes. Defendant acknowledged the presumptive prison terms for those classifications, but the parties agreed that defendant would instead receive a dispositional departure from the presumptive prison terms to a 60-month term of supervised probation on both counts. The parties further agreed that, if defendant's probation were revoked, he would receive specific sentences, which were within the presumptive prison terms for the agreed upon grid blocks for his crimes. The parties agreed that defendant would receive a 55-month prison sentence and five months of PPS on Count 1 and a 13-month prison sentence and 47 months of PPS on Count 2. Both PPS terms represented the statutory maximum of PPS for a Class C felony, which is required by statute for defendant's specific crimes. See ORS 144.103(1) ; ORS 161.605(3).

Approximately a week before the conclusion of defendant's 60-month probationary period, defendant violated probation. At the subsequent show-cause hearing, defendant admitted to two probation violations. The parties jointly agreed to extend defendant's probation for 12 months, which the court did. Later that evening and in the following days, defendant violated probation again. Defendant subsequently admitted to two violations. The court found that defendant violated probation and sentenced defendant within the range of the presumptive prison terms for the grid block classifications to which defendant had previously stipulated. As noted, the trial court sentenced defendant to 51 months of prison and nine months of PPS on Count 1² and 13 months of prison and 47 months of PPS on Count 2. Those sentences were imposed to be served concurrently.

Defendant contends that his aggregate sentence, which he contends includes the time he had already served in probation, is unconstitutionally disproportionate. ORS 138.105(9) provides that an "appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant." As the Supreme Court recently explained, that statute precludes review only when two conditions are met:

"First, the parties must have agreed to a specific sentence, or to a specific component that the court used to calculate the sentence—such as the grid block classification. Second, the bar applies to preclude review only of the part of the sentence on which the parties agreed."

State v. Rusen , 369 Or. 677, 695-96, 509 P.3d 628 (2022). The bar on reviewability applies only if " ‘certain specific stipulations, like those in ORS 135.407,³ are made.’ "

Id. at 693, 509 P.3d 628 (quoting ...