Chapter §4.4 GUILTY PLEAS, NO-CONTEST PLEAS, PROBATION VIOLATIONS, AND RESENTENCINGS

• Jurisdiction: Oregon

2. (§4.4) Guilty Pleas, No-Contest Pleas, Probation Violations, and Resentencings

To appeal from a judgment following a guilty plea, a no-contest plea, a probation violation proceeding, or a resentencing proceeding, the defendant must identify a colorable claim of error in the notice of appeal. ORS 138.050(1), 138.222(7)(a) (guilty and no-contest pleas), ORS 138.053(3), 138.222(7)(b) (probation violations), ORS 138.222(7)(c) (resentencings); ORAP 2.40 (specifying contents of notice of appeal). A colorable claim of error is "a claim that a party reasonably may assert under current law and that is plausible given the facts and the current law (or a reasonable extension or modification of current law)." State ex rel. Dep't of Human Servs. v. Rardin (In re Rardin), 338 Or 399, 408, 110 P3d 580 (2005).

COMMENT: When a judgment contains multiple counts, only some of which are resolved by a guilty or no-contest plea, a colorable claim should not be necessary because the defendant has an automatic right to appeal from the judgment of conviction and sentence following a trial.

On appeal from a guilty or no-contest plea, the colorable claim must allege that the disposition exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. ORS 138.050(1). Furthermore, those are the only considerations that an appellate court may review in such a case. ORS 138.050(3). "'[A] disposition exceeds the maximum allowed by law if it is not imposed consistently with statutory requirements.'" State v. Stubbs, 193 Or App 595, 606, 91 P3d 774 (2004) (quoting State v. Sumerlin, 139 Or App 579, 583, 913 P2d 340 (1996)); see 3 Criminal Law §28.6 (Oregon CLE 2005 & Legis Supp 2006). Under those provisions, an appellate court may consider a claim that the sentence is unconstitutionally disproportionate, that is, not...