2015 ORS 138.222¹
Scope of review of sentence imposed for felony committed on or after November 1, 1989

(1) Notwithstanding the provisions of ORS 138.040 (Appeal by defendant generally) and 138.050 (Appeal from sentence on plea of guilty or no contest), a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section.

(2) Except as otherwise provided in subsection (4)(c) of this section, on appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court may not review:

(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.

(b) 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.

(c) A sentence of imprisonment when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

(d) Any sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record.

(e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing.

(3) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission, sentence review is limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the Oregon Criminal Justice Commission:

(a) Are supported by the evidence in the record; and

(b) Constitute substantial and compelling reasons for departure.

(4) In any appeal, the appellate court may review a claim that:

(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;

(b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes; or

(c) The sentencing court erred in failing to impose a minimum sentence that is prescribed by ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) or 137.707 (Adult prosecution of 15-, 16- or 17-year-old offenders).

(5)(a) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case.

(b) If the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.

(6) The appellate court shall issue a written opinion whenever the judgment of the sentencing court is reversed and may issue a written opinion in any other case when the appellate court believes that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Oregon Criminal Justice Commission provided that the appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal.

(7) 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 chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:

(a) A sentence was entered subsequent to a plea of guilty or no contest;

(b) Probation was revoked, the period of probation was extended, a new condition of probation was imposed, an existing condition of probation was modified or a sentence suspension was revoked; or

(c) A sentence was entered subsequent to a resentencing ordered by an appellate court or a post-conviction relief court. [1989 c.790 §21; 1993 c.692 §2; 1993 c.698 §1; 1997 c.852 §9; 2001 c.644 §3; 2003 c.737 §102; 2005 c.563 §1]

Note: Legislative Counsel has substituted "chapter 790, Oregon Laws 1989," for the words "this Act" in section 21, chapter 790, Oregon Laws 1989, compiled as 138.222 (Scope of review of sentence imposed for felony committed on or after November 1, 1989). Specific ORS references have not been substituted, pursuant to 173.160 (Powers and duties of Legislative Counsel in preparing editions for publication). These sections may be determined by referring to the 1989 Comparative Section Table located in Volume 20 of ORS.

Notes of Decisions

Imposi­tion of departure sen­tence is discre­tionary determina­tion by sen­ten­cing court and if defendant does not agree that court's 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 defendant's 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 court's 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 defendant's criminal history classification). State v. Kephart, 320 Or 433, 887 P2d 774 (1994)

Provision in stipulated sen­ten­cing agree­ment that reserved defendant's right to ap­peal sen­tence did not make ORS 135.407 (Plea agreement must contain defendant's 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 defendant's 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 court's 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 offender's 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, 258 P3d 1244 (2011), Sup Ct review denied

Where defendant asserts trial court erred in denying request to impose downward departure sen­tence for felony crime after November 1, 1989, ap­peal is governed exclusively by this sec­tion and will be granted because defendant's asser­tion shows colorable claim of error. State v. Brewer, 260 Or App 607, 320 P3d 620 (2014), Sup Ct review denied

Where defendant ap­pealed judge­ment of con­vic­­tion for felonies committed in 1991 and later, and ap­peal challenged denial of mo­tions for continuance of sen­ten­cing hearing and en­force­­ment of plea agree­ment, defendant's ap­peal is "based on the sen­tence" because ap­peal is founded on sen­tence as funda­mental part. State v. Cle­ments, 265 Or App 9, 333 P3d 1177 (2014), Sup Ct review denied

Where trial court, on remand after some of defendant's con­vic­­tion were overturned, reconsidered defendant's sen­ten­cing for unlawful use of weapon charges, and increased sen­tence by 26 months, trial court was authorized to resen­tence defendant even though defendant had completed sen­tences for unlawful use of weapons charges. State v. Sierra, 278 Or App 96, 374 P3d 952 (2016)

This sec­tion does not preclude direct appellate review of presumptive life sen­tence imposed under ORS 137.719 (Presumptive sentence for certain sex offenders). State v. Althouse, 359 Or 668, 375 P3d 475 (2016)


1 Legislative Counsel Committee, CHAPTER 138—Appeals; Post-Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.