Notes of Decisions
Imposition of departure sentence is discretionary determination by sentencing court and if defendant does not agree that courts reasons are substantial and compelling, defendant must indicate basis of objection or there is no error to review. State v. Orsi/Gauthier, 108 Or App 176, 813 P2d 82 (1991); State v. Cook, 108 Or App 576, 816 P2d 697 (1991), Sup Ct review denied
Defendant may not appeal sentence within presumptive guidelines under ORS 138.222 (Scope of review of sentence imposed for felony committed on or after November 1, 1989) (4)(a) because ORS 138.222 (Scope of review of sentence imposed for felony committed on or after November 1, 1989) (2)(a) expressly prohibits review within presumptive sentence and ORS 138.222 (Scope of review of sentence imposed for felony committed on or after November 1, 1989) (4)(a) allows review of claim that presumptive sentence rests on legal error. State v. Cook, 108 Or App 576, 816 P2d 697 (1991), Sup Ct review denied
Claim of error that number of concurrent sentences has been miscounted is claim relating to classification of prior conviction for criminal history purposes and is within scope of review. State v. Munro, 109 Or App 188, 818 P2d 971 (1991), Sup Ct review denied
Task of sentencing court in classifying out-of-state conviction for criminal history purposes under Sentencing Guidelines is limited to determining whether elements of offense under laws of other state constitute felony or Class A misdemeanor under current Oregon law. State v. Tapp, 110 Or App 1, 821 P2d 1098 (1991); State v. Lee, 110 Or App 42, 821 P2d 1100 (1991)
Although defendant pleaded guilty to drug charges and was sentenced according to guidelines classification for scheme and network convictions and, after plea, scheme and network provisions were held unconstitutional, to allow review of defendants sentence would nullify prohibition of this section against review of sentence imposed pursuant to plea agreement. State v. Rathbone I, 110 Or App 414, 823 P2d 430 (1991), Sup Ct review denied
Claim that sentencing court erred in ranking conviction for racketeering because racketeering is unranked crime for sentencing purposes was reviewable. State v. Rathbone II, 110 Or App 419, 823 P2d 432 (1991), Sup Ct review denied
Review is of sentencing courts factual basis and reasons for departure from presumptive sentence and review explanation of why circumstances are so exceptional that imposition of presumptive sentence would not accomplish purposes of guidelines. State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992)
This section precludes review of sentence imposed under plea agreement and, where defendant was aware of and did not dispute sentencing classification of crime to which he pleaded guilty, classification of crime seriousness was not reviewable. State v. Stevens, 111 Or App 258, 826 P2d 12 (1992); State v. Becker, 120 Or App 230, 851 P2d 1150 (1993)
Appellate court has authority to review sentence of probation without departure to determine whether sentencing court complied with requirements of law. State v. Schuh/Hookie, 112 Or App 362, 829 P2d 1040 (1992), Sup Ct review denied
Appeal court has no authority to review length of departure sentence if it is within sentencing guidelines. State v. Barber, 113 Or App 603, 832 P2d 51 (1992); State v. Martin, 320 Or 448, 887 P2d 782 (1994)
Review limitation applies to sentences imposed on remanded juveniles. State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), Sup Ct review denied
Boilerplate language in petition to enter guilty plea stating that district attorney agreed to recommend particular sentencing guideline gridblock constituted plea agreement that precluded review. State v. Hallinan, 125 Or App 316, 865 P2d 449 (1993)
Stipulated sentence resulting from plea agreement between defendant and state is not reviewable. State v. Adams, 315 Or 359, 847 P2d 397 (1993)
Provisions permitting appellate review of departure sentences and sentencing errors are exceptions only to catch-all provision allowing review of sentencing issues, not to situations where appellate review is expressly prohibited. State v. Adams, 315 Or 359, 847 P2d 397 (1993)
Express prohibitions against appellate review are not limited to prohibiting review of sentence length. State v. Adams, 315 Or 359, 847 P2d 397 (1993)
Where plea agreement imposing dispositional departure of probation recited incorrect grid block, court was precluded from reviewing sentence imposed in accordance with correct grid block following probation revocation. State v. Guyton, 126 Or App 143, 868 P2d 1335 (1994), Sup Ct review denied. But see State v. Hoffmeister, 164 Or App 192, 990 P2d 910 (1999)
1993 amendment relating to review of some plea-bargained sentences does not apply to sentences imposed before effective date of amendment. State v. George, 127 Or App 581, 873 P2d 468 (1994), Sup Ct review denied
Order of restitution imposed prior to 1993 amendment as part of negotiated plea was not reviewable. State v. Nelson, 127 Or App 741, 874 P2d 108 (1994)
Stipulated sentencing agreement means stipulated sentences of type illustrated under ORS 135.407 (Plea agreement must contain defendants criminal history classification). State v. Kephart, 320 Or 433, 887 P2d 774 (1994)
Provision in stipulated sentencing agreement that reserved defendants right to appeal sentence did not make ORS 135.407 (Plea agreement must contain defendants criminal history classification)-type agreement subject to review. State v. Upton, 132 Or App 579, 889 P2d 376 (1995), Sup Ct review denied
Challenge to requirement that sentences within guidelines be served consecutively was reviewable as claim that court failed to comply with law in imposing sentence. State v. Stokes, 133 Or App 355, 891 P2d 13 (1995)
Where plea agreement did not include specific assent to departure sentence or imposition of consecutive sentences, those parts of sentence were reviewable. State v. Reeves, 134 Or App 38, 894 P2d 1170 (1995), Sup Ct review denied
Portion of sentence not included in sentencing agreement stipulated between state and defendant is subject to review. State v. Davis, 134 Or App 310, 895 P2d 1374 (1995)
Nonreviewable nature of determination under ORS 137.079 (Presentence report) whether criminal history exists does not preclude review of whether consideration of criminal history during sentencing was proper. State v. Leslie, 134 Or App 366, 895 P2d 342 (1995), Sup Ct review denied
Restitution order is not part of presumptive sentence and therefore not precluded from review. State v. Marquez, 139 Or App 379, 912 P2d 390 (1996), Sup Ct review denied
Objective circumstances considered as crime-sentencing factors do not constitute elements of underlying charge and are determined independently of defendants culpable mental state. State v. Casavan, 139 Or App 544, 912 P2d 946 (1996), Sup Ct review denied
Post-prison supervision is not part of presumptive sentence and therefore court may review propriety of supervision period imposed. State v. Owen, 142 Or App 314, 921 P2d 424 (1996)
Court may review application of statute requiring imposition of determinate sentence. State v. Brown, 143 Or App 263, 923 P2d 1236 (1996)
Presumptive sentence means period of incarceration specified in sentencing guidelines gridblock and does not mean determinate sentence. State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997)
1997 amendment allowing court to correct sentencing error by review rather than by mandamus did not retroactively expand courts subject matter jurisdiction and therefore does not violate ex post facto or separation of powers provision of Oregon Constitution. State v. Jackman, 155 Or App 358, 963 P2d 170 (1998), Sup Ct review denied; State v. Bowman, 160 Or App 8, 980 P2d 164 (1999), Sup Ct review denied
Imposition of sentence resulting from stipulated sentencing agreement does not preclude appeal alleging that court failed to impose minimum sentence prescribed by ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences). State v. Albrich, 157 Or App 64, 969 P2d 1033 (1998), Sup Ct review denied
Failure to comply with statutory procedure for certifying interpreter is not error in imposing or failing to impose sentence. State v. Sanchez, 160 Or App 182, 981 P2d 361 (1999), Sup Ct review denied
Where sentence imposed by court under incorrect gridblock is presumptive probation, court may not subsequently impose probation revocation sanction under correct gridblock. State v. Hoffmeister, 164 Or App 192, 990 P2d 910 (1999)
Provision that entire case is to be remanded if sentencing court commits error requiring resentencing applies to all reviewable sentencing errors, not just errors involving lack of evidence in record or lack of justification for departure. State v. Edson, 329 Or 127, 985 P2d 1253 (1999)
Reviewing court is not precluded from reviewing procedural errors that precede actual imposition of sentence so long as review is of claim that sentencing court failed to comply with requirements of law. State v. Lavitsky, 171 Or App 506, 17 P3d 495 (2000), Sup Ct review denied
Where Court of Appeals determines that trial court erred regarding merging of sentences, Court of Appeals will treat error as requiring remand of entire case to trial court for resentencing. State v. Rodvelt, 187 Or App 128, 66 P3d 577 (2003), Sup Ct review denied; State v. Sanders, 189 Or App 107, 74 P3d 1105 (2003), Sup Ct review denied
Limitation on right of defendant to appeal from proceeding in which sentence was entered subsequent to certain events limits scope of appellate review, but does not provide source of appellate jurisdiction over proceeding. State v. Roy, 198 Or App 209, 108 P3d 88 (2005)
Where trial court imposes authorized sentence after determining defendant does not qualify for different authorized sentence, determination is reviewable for failure to comply with requirements of law in not imposing sentence. State v. Arnold, 214 Or App 201, 164 P3d 334 (2007)
Aspect of sentence that affects offenders eligibility for subsequent modification of sentence is reviewable for failure to comply with requirements of law in imposing sentence. State v. Casiano, 214 Or App 509, 166 P3d 599 (2007)
Where entire case is before court on remand, authority of court to resentence on any conviction in case allows imposition of greater sentence for conviction that was part of same judicial proceeding but was not appealed. State v. Muyingo, 225 Or App 156, 200 P3d 601 (2009), on reconsideration 226 Or App 327, 203 P3d 365 (2009), Sup Ct review denied
Where case is remanded for resentencing, new sentence may exceed original sentence if increase is not punishment for pursuing appeal. Olson v. Howard, 237 Or App 256, 239 P3d 510 (2010)
Where appeal of sentence is successful on grounds other than unlawfully excessive sentence, Due Process Clause of Fourteenth Amendment bars state from imposing total sentence on remand that is more severe than initial sentence. State v. Partain, 349 Or 10, 239 P3d 232 (2010)
Court may consider, on remand, principles of constitutional law first announced after original sentencing. State v. Hollingquest, 241 Or App 1, 250 P3d 366 (2011)
On remand, trial court may impose any lawful sentence, whether that sentence is same as or different than original sentence. State v. Hollingquest, 241 Or App 1, 250 P3d 366 (2011)
Where court imposed sanction as part of probation revocation, sanction was governed by criminal history score at time of original sentence notwithstanding later reduction in criminal history score. State v. Anderson, 243 Or App 222, P3d (2011)
