§ 22.11 Appeal and Review

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 22.11 APPEAL AND REVIEW

§ 22.11-1 Judgments and Orders That Are Appealable

Before 2017, the primary statute that governed appeals from judgments entered on convictions subject to the sentencing guidelines was former ORS 138.222 (2015), repealed by Or Laws 2017, ch 529, § 26. "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 [the sentencing guidelines]." Former ORS 138.222(7) (2015); see State v. Cook, 108 Or App 576, 579-81, 816 P2d 697 (1991), rev den, 312 Or 588 (1992). Similarly, former ORS 138.060(1)(e) (2015), amended by Or Laws 2017, ch 529, § 4, and renumbered as ORS 138.045(1)(f) (2017), authorized the state to appeal, to the court of appeals, "[a] judgment of conviction based on the sentence as provided in ORS 138.222." See State v. Hopkins, 112 Or App 458, 829 P2d 97 (1992); State v. Schuh, 112 Or App 362, 364, 829 P2d 1040, rev den, 314 Or 176 (1992).

Although former ORS 138.053(1) (2015), repealed by Or Laws 2017, ch 529, § 26, provided that a defendant may appeal from certain postjudgment orders that either impose or affect a sentence, a defendant could not appeal from a postjudgment order that merely denied the defendant's motion for entry of a corrected judgment. State v. Sager, 249 Or App 252, 274 P3d 890 (2012) (per curiam) (order denying motion filed under ORS 137.754); State v. Hart, 188 Or App 650, 652-53, 72 P3d 671, rev den, 336 Or 126 (2003) (motion under former ORS 138.083(1) (2015), repealed by Or Laws 2017, ch 529, § 26). If the sentencing court entered an amended judgment under former ORS 138.083(1) that merely corrected an arithmetic or clerical order, the entry of the amended judgment did not extend or revive the party's right to appeal from the original judgment unless the amendment either (1) materially altered the party's rights or obligations, or (2) created a right of appeal for the party that did not previously exist. State v. Christopherson, 159 Or App 428, 432, 978 P2d 1039, rev den, 329 Or 126 (1999) (dismissing appeal from amended judgment as untimely). If a party did not perfect an appeal from an appealable judgment or order, the court cannot re-enter the same judgment or order for the purpose of allowing the party to appeal. State v. Coleman, 246 Or App 84, 89, 265 P3d 39 (2011), rev den, 352 Or 25 (2012).

In 2017, the above-described statutes were replaced by a new set of statutes that govern when a party to a criminal action may appeal and what is reviewable on appeal. Or Laws 2017, ch 529; see ORS 138.035 to 138.115. For the most part, the rules are the same as applied under the former statutes—the provisions were just restructured and renumbered. See State v. Davis-McCoy, 300 Or App 326, 454 P3d 48 (2019) (limitation on review that applied under former statute applies with equal force under current statute).

Under some circumstances, a party to a criminal case may have a right to appeal from a postjudgment order entered after a special statutory proceeding. State v. Branstetter, 332 Or 389, 402, 29 P3d 1121 (2001) (defendant had a right of appeal under ORS 19.205(4) from a forfeiture order entered under ORS 167.347); State v. Shank, 206 Or App 280, 285-86, 136 P3d 101 (2006) (same, order entered imposing fees under ORS 151.487).

In an appeal from a final judgment of conviction under ORS 138.035 or ORS 138.045, any appellate review of a sentence imposed in the case on a felony conviction subject to the sentencing guidelines will be governed exclusively by ORS 138.105 and ORS 138.115, respectively. See State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), rev den, 318 Or 351 (1994) (decided under former ORS 138.222).

NOTE

If a defendant is convicted of aggravated murder and sentenced to death, ORS 138.052(1) provides that "[t]he judgment of conviction and sentence of death entered under ORS 163.150(1)(f) is subject to automatic and direct review by the [Oregon] Supreme Court." Such a direct appeal bypasses the court of appeals even if other convictions subject to the sentencing guidelines were entered in the case.

§ 22.11-2 Scope of Appellate Review

§ 22.11-2(a) Governing Statute

Regardless of the statutory basis for appellate jurisdiction or the nature of the sentence imposed, appellate review of a sentence is governed and limited by ORS 138.105(7) to (10) (a defendant's appeal) and ORS 138.115(4) to (8) (a state's appeal). Therefore, if some provision in those statutes either precludes or limits appellate review of a sentence imposed in the case, the appellate court may not engage in a more expansive review of the sentence under some other statutory provision. See State ex rel. Huddleston v. Sawyer, 324 Or 597, 606-08, 932 P2d 1145, cert den, 522 US 994 (1997) (decided under former ORS 138.222 (2015), repealed by Or Laws 2017, ch 529, § 26); State v. Adams, 315 Or 359, 364-67, 847 P2d 397 (1993) (same); State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), rev den, 318 Or 351 (1994) (same).

§ 22.11-2(b) Appellate Review Barred

Under ORS 138.105 and ORS 138.115, the appellate court "has no authority to review" four types of sentences imposed on sentencing guidelines convictions. If the sentence at issue fits into any of the four categories, then the appellate court may not review the sentence. Thus, although ORS 138.105(7) and ORS 138.115(5) generally allow the appellate court in such a case to review the sentence imposed, the appellate court does not have authority to review the sentence if one of the exceptions applies. State ex rel. Huddleston v. Sawyer, 324 Or 597, 601-08, 932 P2d 1145, cert den, 522 US 994 (1997); State v. Adams, 315 Or 359, 365-67, 847 P2d 397 (1993). See § 22.11-2(c) for a discussion of reviewable issues under ORS 138.105 and ORS 138.115.

CAVEAT

All the cases cited in this section were decided under former ORS 138.222 (2015), repealed by Or Laws 2017, ch 529, § 26. Although the relevant language in the succeeding statutes, ORS 138.105 and ORS 138.115, is very similar to that of former ORS 138.222, attorneys should be mindful of this issue.

The first class of sentences that are not reviewable is "[a] sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission." ORS 138.105(8)(a)(A); ORS 138.115(6)(a)(A). This limitation on review had been codified in former ORS 138.222(2)(a). If the sentence imposed is within the presumptive range prescribed by the correct grid block, the appellate court may not review any challenge to the sentence. Sawyer, 324 Or at 601 -08. On the other hand, if the appellant contends that the sentencing court erred in determining the correct grid block for the conviction, this claim of error may be reviewed even though the court imposed the presumptive sentence for the grid block. See, e.g., State v. Martin, 320 Or 448, 451, 887 P2d 782 (1994). Similarly, those provisions do not preclude reviewing claims that the sentencing court erred by suspending execution of sentence, State v. Keefer, 169 Or App 338, 342-43, 8 P3d 1002 (2000), by imposing restrictions on release under ORS 137.635, State v. Brown, 143 Or App 263, 266-67, 923 P2d 1236 (1996), or by imposing an incorrect term of PPS, State v. Owen, 142 Or App 314, 316-17, 921 P2d 424 (1996).

The second class of sentences that may not be reviewed is "[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." ORS 138.105(8)(a)(B); ORS 138.115(6)(a)(B). This limitation on review had been codified in former ORS 138.222(2)(b). In other words, if the conviction falls...