State v. Colgrove

                                        474

  Argued and submitted November 9, 2021, resubmitted January 25; decision
  of Court of Appeals affirmed, circuit court’s judgment of conviction affirmed
   in part and vacated in part, and case remanded to circuit court for further
  proceedings; circuit court’s judgment for costs of appointed counsel reversed
                                 December 1, 2022


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                  RHONDA COLGROVE,
                    Petitioner on Review.
          (CC 17CR57106) (CA A169952) (SC S068372)
                                    

     Defendant pleaded guilty to misdemeanor driving under the influence of
intoxicants and filed a petition to enter diversion. The trial court accepted defen-
dant’s guilty plea that had been filed as part of the petition, but it withheld entry
of a judgment of conviction. Defendant failed to pay $335 in fees and to attend a
victim impact panel within the diversion period. The trial court thereafter termi-
nated the diversion agreement and entered a judgment of conviction. Defendant
appealed, challenging her conviction on the ground that the trial court had erro-
neously terminated her diversion agreement. The Court of Appeals assumed that
defendant’s challenge was reviewable under ORS 138.105(5), but concluded that
it failed on the merits. Held: ORS 138.105(5) precludes a defendant who pleads
guilty or no contest from obtaining appellate review of legal challenges to the
“conviction” in the judgment entered in the trial court. As used in that statute,
the term “conviction” refers to the trial court’s judgment—that is, the judicial
determination of guilt as reflected in the judgment entered on the plea, which
encompasses intermediate trial court rulings that led to the entry of the judg-
ment containing that judicial determination.
    The decision of the Court of Appeals is affirmed. The circuit court’s judgment
of conviction is affirmed in part and vacated in part, and the case is remanded
to the circuit court for further proceedings. The circuit court’s judgment for the
costs of appointed counsel is reversed.



   On review from the Court of Appeals.*
   Kyle Krohn, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
   Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
______________
   * On appeal from the Umatilla County Circuit Court, Paul G. Crowley and
Daniel J. Hill, Judges. 

, 

 (2021).
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on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.**
   NELSON, J.
   The decision of the Court of Appeals is affirmed. The cir-
cuit court’s judgment of conviction is affirmed in part and
vacated in part, and the case is remanded to the circuit
court for further proceedings. The circuit court’s judgment
for the costs of appointed counsel is reversed.




______________
    ** Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
476                                          State v. Colgrove

         NELSON, J.
         This criminal case concerns the meaning of ORS
138.105(5), which provides, in part, that “[t]he appellate
court has no authority to review the validity of * * * a convic-
tion based on the defendant’s plea of guilty or no contest[.]”
Specifically, we must determine whether that statute pre-
cludes a defendant who has pleaded guilty or no contest
from obtaining appellate review of legal challenges to the
conviction in the judgment entered in the trial court. For the
reasons that follow, we conclude that such challenges are not
reviewable under ORS 138.105(5). Accordingly, we affirm
the decision of the Court of Appeals on different grounds.
                     I. BACKGROUND
A.    DUII Diversion Statutes
        This case concerns a driving under the influence of
intoxicants (DUII) conviction following the termination of
a diversion agreement. We therefore begin by providing an
overview of the statutes governing DUII diversion. See ORS
813.200 - 813.270 (governing the diversion program for per-
sons charged with DUII).
          Generally, a defendant charged with DUII who
satisfies certain eligibility requirements may file a peti-
tion for diversion. ORS 813.215. The content of the petition
is governed by ORS 813.200, and, among other things, it
must include a guilty or no contest plea. If the trial court
allows a diversion petition, the judge shall “[a]ccept the
* * * plea” but “withhold entry of a judgment of conviction.”
ORS 813.230(1). The petition then becomes the agreement
between the defendant and the court. ORS 813.230(2). As
part of that agreement, the court “may require as a con-
dition of a [DUII] diversion agreement that the defendant
attend a victim impact treatment session” and “pay a rea-
sonable fee to the victim impact program to offset the cost of
the defendant’s participation.” ORS 813.235.
        The diversion agreement “shall be for a period of
one year after the date the court allows the petition.” ORS
813.230(3) (emphasis added). However, if a defendant needs
additional time beyond one year to complete the require-
ments of diversion, the defendant may request an extension
Cite as 

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“[w]ithin 30 days prior to the end of the diversion period.”
ORS 813.225(1). The trial court has discretion to grant an
extension if it finds that “the defendant made a good faith
effort to complete the conditions of the diversion agreement
and that the defendant can complete the conditions of the
diversion agreement” within the requested extension of
the diversion period. ORS 813.225(4). Generally, the court
is permitted to grant only one extension of the diversion
period, which cannot exceed 180 days from the end date of
the original one-year period.1 ORS 813.225(5), (6). “During
the diversion period[,] the court shall stay the [DUII] offense
proceeding pending completion of the diversion agreement
or its termination.” ORS 813.230(3).
         At any time before the court dismisses the DUII
charge with prejudice, or on the court’s own motion or the
motion of a district or city attorney, the court may issue
an order requiring the defendant to show cause why the
court should not terminate the diversion agreement. ORS
813.255(1). The order to show cause must (1) state the rea-
sons for the proposed termination; (2) set an appearance
date; and (3) specify the amount of any fees owed and, if
the fees owed are less than $500, inform the defendant that
the court may dismiss the DUII charge with prejudice if the
defendant “has complied with and performed all of the con-
ditions of the diversion agreement and pays the remaining
amount before or on the date of the hearing.” 

 The order
must be served on the defendant and on the defendant’s
attorney, if any. ORS 813.255(2). The court “shall terminate
the diversion agreement and enter the guilty plea or no con-
test plea” if the defendant “fails to appear at the hearing on
the order to show cause or if, at the hearing on the order to
show cause, the court finds by a preponderance of the evi-
dence” that the defendant no longer qualifies for diversion
under ORS 813.215 or “[t]he defendant failed to fulfill all
of the terms of the diversion agreement.” ORS 813.255(3)
(emphasis added).
       However, if a defendant has fully complied with and
performed the conditions of the diversion agreement, the
    1
      There is an exception that is inapplicable in this case. See ORS 813.225(7)
(exception for certain members of the military).
478                                          State v. Colgrove

defendant is entitled to dismissal of the DUII charge with
prejudice. See ORS 813.250(1) (“At any time after the conclu-
sion of the period of a [DUII] diversion agreement described
in ORS 813.230, a defendant who has fully complied with
and performed the conditions of the diversion agreement
may apply by motion to the court wherein the diversion
agreement was entered for an order dismissing the charge
with prejudice.”); see also City of Pendleton v. Standerfer, 

, 

 (1984), abrogated on other grounds
by State v. Probst, 

, 

 (2005) (explain-
ing that “[a] defendant who has fully complied with and per-
formed the conditions of the diversion agreement is entitled
to have the charge dismissed with prejudice,” citing the sub-
stantively identical statutory precursor to ORS 813.250(1)).
Additionally, if a defendant appears at a show cause hear-
ing, “the court shall dismiss with prejudice” the DUII charge
if the defendant has complied with all diversion conditions
except for the payment of $500 or less in fees, provided the
remaining fees are paid by 5:00 p.m. on the day of the show
cause hearing. ORS 813.255(5) (emphasis added).
B.    The Facts
          With that understanding of the statutes, we set out
the basic facts. Defendant pleaded guilty to misdemeanor
DUII and filed a petition to enter diversion. Defendant’s
diversion petition stated, in part, that she had “read
and underst[ood] all of the information in the attached
Explanation of Rights and DUII Diversion Agreement” and
“agree[d],” among other things, to “[a]ttend a victim impact
panel as ordered by the court.” (Emphasis in original.) The
accompanying Explanation of Rights and DUII Diversion
Agreement form stated, in part, that, if defendant “fail[ed]
to fulfill the terms of the agreement by the end of the diver-
sion period, the court [would] sentence [her] without a trial.”
Defendant’s guilty plea also included a statement that
defendant understood that, if she “fail[ed] to comply with
the diversion agreement within the diversion period, the
court [would] enter a judgment of conviction on the charge
and w[ould] sentence [her].” The trial court issued an order
allowing defendant’s diversion petition, ordering her to
attend a victim impact panel, and establishing a one-year
diversion period with specific beginning and ending dates.
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As required by ORS 813.230, the trial court also accepted
defendant’s guilty plea that had been filed as part of the
petition, but it withheld entry of a judgment of conviction.
         Defendant failed to pay $335 in fees and to attend
a victim impact panel within the diversion period. The trial
court thereafter terminated the diversion agreement and
entered a judgment of conviction, and defendant appealed.2
As pertinent here, defendant challenged her conviction on
the ground that the trial court had erroneously terminated
her diversion agreement either because the agreement had
not set a deadline to attend the victim impact panel or
because the trial court had discretion to waive the atten-
dance requirement. The Court of Appeals assumed that
defendant’s challenge was reviewable under ORS 138.105(5),
but concluded that it failed on the merits. State v. Colgrove,

, 

 (2021). We allowed defen-
dant’s petition for review and now address the reviewabil-
ity issue that the Court of Appeals did not—viz., whether
ORS 138.105(5) precludes a defendant who pleads guilty or
no contest from obtaining appellate review of legal chal-
lenges to the conviction in the judgment entered in the trial
court.
       II. REVIEWABILITY UNDER ORS 138.105(5)
A.    Defendant’s Arguments
         Again, ORS 138.105(5)—set out in full below—
provides, in part, that the appellate court has no authority
“to review the validity of * * * a conviction based on the defen-
dant’s plea of guilty or no contest[.]” Defendant advocates a
     2
       After the trial court entered the original judgment of conviction, it amended
that judgment in ways that are not material to our review. Although defendant
appealed the original and amended judgments, we refer to “the judgment of con-
viction” throughout this opinion.
     Defendant also appealed a separate judgment entered on December 3, 2018,
that required her to pay a particular amount for the cost of court-appointed coun-
sel. On appeal, defendant challenged, among other things, the imposition of var-
ious fines and fees in the judgment of conviction and the imposition of the costs
of counsel in the December 3, 2018, judgment. Ultimately, the Court of Appeals
reversed the latter judgment and vacated the $255 DUII conviction fee in the
judgment of conviction, remanded the entire case for resentencing, and otherwise
affirmed. On review, defendant has not challenged those rulings in the event that
we reject her contentions related to the conviction itself. Accordingly, we do not
discuss those rulings further.
480                                            State v. Colgrove

narrow reading of that statute. Specifically, she contends
that the resolution of the reviewability issue reduces to
the meaning of the term “conviction” as it is used in ORS
138.105(5). Noting that the term is not defined for purposes
of that statute, defendant asserts that the term should be
given its legal meaning. See Ogle v. Nooth, 

,

 (2014) (“[W]hen words are used in the context
of a legal proceeding * * * they may be used as legal terms of
art, and, if so, we give precedence to their legal meanings.”).
According to defendant, in Vasquez v. Courtney, 

, 

 (1975), this court explained that the term
“conviction” has two accepted meanings:
   “The first refers to a finding of guilt by a plea or verdict.
   The second, more technical meaning refers to the final
   judgment entered on a plea or verdict of guilt. In the latter
   case conviction has not been accomplished until the judg-
   ment is made by the court.”
See also Webster’s Third New Int’l Dictionary 499 (unabridged
ed 2002) (defining “conviction” to mean “the act of proving,
finding, or adjudging a person guilty of an offense or crime”).
         In the context of ORS 138.105(5), defendant contends
that the term “ ‘conviction’ means ‘finding of guilt’ ” because
the term “usually has that meaning in statutes governing
criminal procedures—such as appeals—whereas it means
judgment of conviction in statutes governing collateral con-
sequences or collateral review,” and because “interpreting
conviction as a finding of guilt” rather than as “a judgment
of conviction” is consistent with “[o]ther parts of ORS chap-
ter 138.” Defendant further argues that the legislative his-
tory supports that interpretation. Specifically, as defendant
explains, “[t]he evolution of Oregon’s criminal appeal stat-
utes contains little evidence that the legislature intended
to preclude appellate review of diversion terminations. And
the legislature’s 2017 revision of the appeal statutes shows
that it intended to relax the strict limits on review after a
guilty plea that had previously applied.” Accordingly, defen-
dant reasons that, “[u]nder ORS 138.105(5), defendants
who plead guilty may not challenge their factual guilt, but
they may raise other legal challenges to the entry of a judg-
ment of conviction—including the erroneous termination of
diversion.”
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 (2022)                                        481

         To resolve defendant’s contentions, we must inter-
pret ORS 138.105(5). When interpreting a statute, our goal is
to determine the legislature’s intent by examining the stat-
utory text in context along with any legislative history that
appears useful to our analysis. State v. Gaines, 

, 

 (2009). As we will explain, although
defendant’s proposed construction of the term “conviction”
in ORS 138.105(5) to mean “finding of guilt” is not wholly
implausible, her construction becomes untenable when the
text of the statute is viewed in context and in the light of its
legislative history.
B.    Statutory Text
        We begin with the text of the statute, which was
enacted as part of Senate Bill (SB) 896 (2017). ORS 138.105(5),
provides, in full:
         “The appellate court has no authority to review the valid-
     ity of the defendant’s plea of guilty or no contest, or a con-
     viction based on the defendant’s plea of guilty or no contest,
     except that:
         “(a) The appellate court has authority to review the
     trial court’s adverse determination of a pretrial motion
     reserved in a conditional plea of guilty or no contest under
     ORS 135.335.
        “(b) The appellate court has authority to review
     whether the trial court erred by not merging determina-
     tions of guilt of two or more offenses, unless the entry of
     separate convictions results from an agreement between
     the state and the defendant.”
(Emphases added.)
         According to defendant, the legislature intended
the term “conviction” in the first part of that statute to mean
“finding of guilt.” It is plausible that, as used in the phrase
“a conviction based on the defendant’s plea of guilty or no
contest,” the term “conviction” could have that meaning. As
noted, in Vasquez, this court identified “finding of guilt by
a plea or verdict” as an accepted legal meaning of the term
“conviction.” 

.
        Further, defendant argues that “[t]he fact that ORS
138.105(5) proscribes review of challenges to both the plea
482                                                        State v. Colgrove

and the conviction suggests that those words encompass
different things”—that is, “[t]he plea is the defendant’s
acknowledgment of guilt, whereas the conviction is the
court’s finding of guilt based on the plea.” (Emphases omit-
ted.) According to defendant, if “conviction” means “ ‘judg-
ment of conviction,’ a challenge to the plea would be pre-
cluded as a challenge to the conviction,” and the word “plea”
becomes redundant. As defendant reasons,
    “interpreting ‘conviction’ to mean ‘finding of guilt’ avoids
    redundancy by allowing conviction and plea to mean dif-
    ferent things. By precluding review of the plea, the stat-
    ute bars defendants from arguing that their decision to
    plead guilty was not knowing or voluntary.[3] By precluding
    review of the conviction, the statute bars defendants from
    disputing the court’s finding of guilt based on the plea. But
    the statute does not bar defendants from arguing that, not-
    withstanding their factual guilt, some other legal imped-
    iment precludes the entry of a judgment of conviction.
    Defendant’s interpretation avoids redundancy and gives
    full effect to each word in the statute.”
         However, defendant’s proffered interpretation of
the term “conviction” also introduces redundancy into the
statute. That is so because, if defendant were correct that
an appellate court has authority to review all legal chal-
lenges other than challenges to the validity of the plea or the
“finding of guilt” in the plea, then much of ORS 138.105(5)
becomes meaningless surplusage. Specifically, there would
have been no reason for the legislature to have authorized
review of an adverse determination of a pretrial motion
reserved in a conditional plea under ORS 135.335 or a trial
court ruling not to merge determinations of guilt into one or
more separate convictions.
         By contrast, as noted above, “conviction” also can
refer to “the final judgment entered on a plea or verdict of
guilt.” Vasquez, 

; see 

 (“A ‘judgment’ in
a criminal case constitutes a judicial determination of guilt
    3
      See ORS 135.390(1) (“The court shall not accept a plea of guilty or no contest
without first determining that the plea is voluntary and intelligently made.”);
Dixon v. Gladden, 

, 

 (1968) (explaining that a valid
guilty plea “must be voluntary and must be understandingly made with knowl-
edge by the party of his rights”); see also State v. King, 

, 

 (2017) (same).
Cite as 

 (2022)                                 483

based on a verdict or plea of guilty and imposes a penalty
for the transgression committed by the defendant.”); see also
State v. McDonnell, 

, 

 (1988)
(“A plea or verdict of guilty is not synonymous with a con-
viction. * * * A ‘judgment of conviction’ represents the com-
bined factual and legal determinations that the defendant
committed acts constituting a crime and that there is no
legal impediment to so declaring; it is the string that ties up
the package.”). If “conviction” refers broadly to the judicial
determination of guilt reflected in the judgment entered on
the plea and an appellate court has no authority to review
challenges to the “conviction,” then the need for the express
exceptions embodied in ORS 138.105(5)(a) and (b) becomes
apparent.
          Further, adopting defendant’s understanding of ORS
138.105(5) would require us to conclude that the word “con-
viction” means different things within the statute itself.
Specifically, ORS 138.105(5)(b) also uses the term “convic-
tion” in the context of an exception authorizing the appellate
court to review a trial court’s decision not to merge multiple
determinations of guilt, “unless the entry of separate con-
victions results from an agreement between the state and
the defendant.” (Emphasis added.) In that context, “convic-
tion” more naturally refers to the judicial determination
of guilt reflected in the judgment entered on the plea. See
ORS 137.071(2)(f) (providing that a “judgment document”
shall include the court’s determination of each charge); ORS
137.071(2)(g) (noting that a “determination” may include a
“determination * * * of conviction”); see also State v. White,

, 279 n 4, 

 (2009) (explaining that a
“defendant is not formally ‘convicted’ on any charge until
the trial court enters a judgment”).
         When interpreting statutes, we generally assume
that “the legislature intended the same word to have the
same meaning throughout related statutes unless some-
thing in the text or context of the statute suggests a con-
trary intention.” Village at Main Street Phase II v. Dept. of
Rev., 

, 

 (2014). Further, we typi-
cally presume that the legislature intended to avoid “mean-
ingless surplusage.” State v. Clemente-Perez, 

, 

 (2015); see also Vsetecka v. Safeway Stores,
484                                           State v. Colgrove

Inc., 

, 

 (2004) (“When, as in this
case, a statute contains multiple provisions, ORS 174.010
directs us to read those provisions, if possible, in a way that
will give effect to all of them.”). Because defendant’s pro-
posed construction of the term “conviction” would render
significant parts of ORS 138.105(5) meaningless and would
require us to assume that the legislature ascribed different
meanings to the term “conviction” within the statute itself,
we conclude as a textual matter that the legislature appears
to have intended the term to have its alternative, accepted
legal meaning—that is, “conviction” refers to the judicial
determination of guilt reflected in the judgment entered on
the plea of guilty or no contest.
C. Statutory Context
      1.   ORS 138.105 and related statutes
        Further examination of the statutory context con-
firms that conclusion. See SAIF v. Ward, 

,

 (2022) (“The context of a statute includes other
provisions of the same statute and related statutes, as well
as the preexisting common law and the statutory frame-
work within which the statute was enacted.” (Internal quo-
tation marks omitted.)). As noted, ORS 138.105(5) is a single
provision enacted as part of SB 896—a comprehensive bill
addressing the procedural law governing criminal appeals
that was submitted to the legislature by the Oregon Law
Commission.
          As a result of the enactment of SB 896, separate but
interrelated statutes govern “appealability” and “reviewabil-
ity” in appeals by defendants and by the state. See ORS 138.035
(governing appeals by defendants); ORS 138.105 (governing
reviewability in defendants’ appeals); ORS 138.045 (govern-
ing appeals by the state); ORS 138.115 (governing review-
ability in state’s appeals); see also ORS 138.005(2) (defining
“appealable,” to mean, “in reference to a judgment or order
rendered by a trial court, that the judgment or order is, by
law, subject to appeal by a party”); ORS 138.005(4) (defining
“reviewable” to mean, “in reference to a particular decision of
a trial court on appeal from an appealable judgment or order,
that the appellate court may, by law, consider the decision
and resolve an issue regarding the decision”).
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 (2022)                                     485

         As pertinent here, a defendant, among other things,
   “may take an appeal from the circuit court * * * to the Court
   of Appeals from a judgment:

      “(A) Conclusively disposing of all counts in the accu-
   satory instrument or conclusively disposing of all counts
   severed from other counts;

      “(B) Convicting the defendant of at least one count;
   and

      “(C) Imposing sentence on all counts of which the
   defendant was convicted.”

ORS 138.035(1)(a); see also ORS 138.071(1) (requiring gen-
erally that an appeal be filed within 30 days “after the
judgment or order appealed from is entered in the register”
(emphasis added)). In sum, a defendant may appeal a “judg-
ment” that has been entered in the register that contains a
“conviction” and a “sentence.”
         If a defendant appeals such a judgment, ORS
138.105 governs the issues that an appellate court may
review. ORS 138.105(5)—the provision at issue in this
case—is one of many interrelated subsections in a statute
that appears designed to function as an integrated whole.
Appellate courts are authorized “to review the judgment or
order being appealed, subject to the provisions of this sec-
tion.” ORS 138.105(1). Generally, “[e]xcept as otherwise pro-
vided in [ORS 138.105], the appellate court has authority
to review any intermediate decision of the trial court.” ORS
138.105(3) (emphasis added). To the extent that “conviction”
is understood to mean the judicial determination of guilt as
reflected in the judgment entered on the plea (as our textual
analysis suggested), the appellate court’s lack of author-
ity to review “the validity of * * * a conviction based on the
defendant’s plea of guilty or no contest” in ORS 138.105(5)
is an exception to the general authority to review interme-
diate decisions in ORS 138.105(3). That is so because, if the
lack of authority to review a “conviction” in ORS 138.105(5)
did not also encompass intermediate trial court rulings that
led to the entry of the judgment containing that judicial
determination, there would have been no need to explicitly
486                                                       State v. Colgrove

authorize review, as set out in ORS 138.105(5)(a), of “the trial
court’s adverse determination of a pretrial motion reserved
in a conditional plea of guilty or no contest under ORS
135.335.”
         In addition, although ORS 138.105(5) precludes review
of “the validity of * * * a conviction based on the defen-
dant’s plea of guilty or no contest,” ORS 138.105(7) gener-
ally authorizes the appellate courts to “review any sentence
to determine whether the trial court failed to comply with
the requirements of law in imposing or failing to impose
a sentence,” subject to two exceptions. See ORS 138.105(8)
(governing reviewability of “a sentence imposed on convic-
tion of a felony committed on or after November 1, 1989”);
ORS 138.105(9) (precluding review of “any part of a sentence
resulting from a stipulated sentencing agreement between
the state and the defendant”). The term “sentence” is defined
to mean “all legal consequences established or imposed by
the trial court after conviction of an offense,” including, but
not limited to, a long list of consequences.4 ORS 138.005(5)
(emphasis added). Thus, the use of the term “conviction”
in the definition of “sentence” supports our understanding
that the term was intended to refer to a judicial determina-
tion of guilt reflected in a judgment for which a trial court
could impose a sentence. See McDonnell, 

(“[T]he statutory scheme concerning the conviction of crim-
inal defendants * * * include[s] the following four distinct
events: (1) defendant’s act of pleading guilty or a jury’s act
in reporting a verdict of guilty; (2) acceptance by the trial
judge of the guilty plea or verdict; (3) conviction of the defen-
dant on the plea or verdict; and (4) pronouncement and entry
of defendant’s sentence.”).

   4
       ORS 138.005(5) provides:
       “ ‘Sentence’ means all legal consequences established or imposed by the
   trial court after conviction of an offense, including but not limited to:
        “(a) Forfeiture, imprisonment, cancellation of license, removal from
   office, monetary obligation, probation, conditions of probation, discharge,
   restitution and community service; and
       “(b) Suspension of imposition or execution of any part of a sentence,
   extension of a period of probation, imposition of a new or modified condition of
   probation or of sentence suspension, and imposition or execution of a sentence
   upon revocation of probation or sentence suspension.”
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 (2022)                                487

    2. Preexisting common law and statutory framework
          As noted, the context of a statute also includes
“the preexisting common law and the statutory framework
within which the statute was enacted.” Ward, 

(internal quotation marks omitted); see State v. Cloutier, 

, 

 (2011) (“Our analysis of [a statute]
is also informed by this court’s prior construction of that
statute or its predecessors.”); see also State v. Rusen, 

, 

 (2022) (recognizing principle that
context includes case law existing at the time of a statute’s
adoption). Because SB 896 retained significant features
of the preexisting common law and statutory framework
related to the concepts of “appealability” and “reviewabil-
ity” in cases involving guilty and no contest pleas, an under-
standing of that framework is an appropriate place to start
before we turn to the bill’s legislative history.
         In a nutshell, the task of determining whether an
appellate court had jurisdiction of an appeal in a criminal
case and, if it did, whether the appellate court had authority
to review the issues that an appellant had raised on appeal,
was complex. To resolve those issues, appellate courts were
often placed in the position of applying multiple interrelated
statutes in ORS chapter 138 that, in turn, had been inter-
preted by the courts in myriad contexts over the course of
many years. Those statutes, and the case law interpreting
them, did not always clearly distinguish between the con-
cepts of “appealability” and “reviewability.”
          That lack of clarity was particularly acute in the
context of cases in which defendants had pleaded guilty or
no contest and thereafter sought to appeal. In Cloutier, this
court described, in detail, the history of four interrelated
statutes in ORS chapter 138 that governed appealabil-
ity and reviewability following a guilty or no contest plea,
which were all eventually repealed by SB 896: (1) former
ORS 138.040 (2015), repealed by Or Laws 2017, ch 529, § 26
(generally governing appeals by defendants in criminal mat-
ters); (2) former ORS 138.050 (2015), repealed by Or Laws
2017, ch 529, § 26 (generally governing appealability and
reviewability following guilty or no contest pleas); (3) for-
mer ORS 138.053 (2015), repealed by Or Laws 2017, ch 529,
488                                                     State v. Colgrove

§ 26 (governing appealable dispositions); and (4) former ORS
138.222 (2015), repealed by Or Laws 2017, ch 529, § 26 (gov-
erning appeal and review of sentences imposed for felonies
committed on or after November 1, 1989).5
         As the court in Cloutier explained, in 1864, the “leg-
islature first conferred appellate jurisdiction to review a judg-
ment entered in a criminal case” in a statute that also per-
mitted review of intermediate trial court rulings. 

. Thereafter, the legislature enacted new sentencing laws
in 1905, and this court was eventually asked to determine
whether an appellate court could review a sentence imposed
under those laws after a defendant had pleaded guilty.

. The court concluded that the legislature had
implicitly conferred such authority in the 1864 statute that
authorized appeals from judgments of conviction, “which the
court held included convictions based on guilty pleas.” 

(describing State v. Lewis, 

, 

 (1924), adh’d
to on reh’g, 113 Or 370, 232 P 1013 (1925)). “[T]he effect of a
guilty plea [was] to admit the facts as charged in the indict-
ment; but that [did] not preclude a defendant who [had] so
pleaded from advancing purely legal challenges to the law-
fulness of the conviction or the sentence that resulted.” Id.
(describing Lewis, 

). Then, in 1945, the law
changed when the legislature enacted a new statute that
explicitly gave defendants who pleaded guilty the right to
appeal, but “limited the nature of the issues that could be
the basis of such an appeal to the excessiveness of the sen-
tence.” Cloutier, at 77-78.
         In 1953, the legislature revised and codified the
state’s then-existing statutes into the Oregon Revised
Statutes. Id. at 79. The legislature’s original 1864 grant
of appellate jurisdiction to review a judgment entered in a
criminal case was codified at former ORS 138.040, essen-
tially unchanged from the original version. Id. And the

    5
      As we will explain, the history of those statutes spans a period exceeding
150 years. Statutes were enacted, repeatedly amended, and at times recodified.
Further, the statutes were interpreted by the appellate courts at various points
in between. Our typical practice is to specify the date associated with a former
statute each time we refer to it. However, for convenience, we depart from that
practice here and, throughout the remainder of this opinion, refer generally to
each former statute without further specification.
Cite as 

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legislature’s 1945 authorization of appeals from judgments
on guilty pleas was codified at former ORS 138.050, also
essentially unchanged from its original version. 

         This court was later asked to address the effect of
former ORS 138.050 in State v. Jairl, 

, 

 (1962). In Jairl, the defendant appealed a judgment of
conviction based on a guilty plea, arguing that the trial
court had erred in failing to dismiss the charge against
him for violation of a state statute that required the timely
return of an indictment and in pronouncing sentence in the
absence of counsel. The defendant contended that, because
of those errors, he had been denied a fair trial as guaran-
teed by the state and federal constitutions. 

. The
court explained that former ORS 138.050 prohibited “appel-
late review of convictions based upon a plea of guilty except
to the limited extent granted by” the statute itself. 

. Noting that former ORS 138.040 was the only statute
with wording broad enough to encompass the defendant’s
challenge, the court reasoned that the restrictions in for-
mer ORS 138.050, in effect, had overruled the court’s earlier
decision in Lewis in which the court had held that former
ORS 138.040 permitted defendants who had pleaded guilty
to advance legal challenges to the lawfulness of the convic-
tion or the sentence that resulted from the plea. 

.
         Thereafter, the legislature amended former ORS
138.050 on multiple occasions to effect changes in the scope
of appealability and reviewability. See Cloutier, 

 (describing 1977 and 1985 amendments to former
ORS 138.050). In 1989, the legislature overhauled the state’s
sentencing laws. 

. As a result, “appeal and review of
sentences imposed for felonies committed after November 1,
1989, [was] governed by [former] ORS 138.222,” and “[for-
mer] ORS 138.040 and [former] ORS 138.050 [applied] only
to appeal and review of sentences for misdemeanor offenses.”

. In addition, the legislature sought “to make clear
that probation [was] among the categories of sentencing
decisions that [were] subject to the appellate jurisdiction of
the courts.” 

 As a result, the legislature amended both
former ORS 138.040 and former ORS 138.050 by replacing
the word “sentence” with the word “disposition,” and then
490                                          State v. Colgrove

enacted former ORS 138.053, which specified five types of
appealable dispositions. 

.
         Although the scope of appellate court review of sen-
tences or dispositions in cases involving guilty or no con-
test pleas varied over the years, one aspect of the law had
remained constant: Former ORS 138.050 and former ORS
138.040 prohibited “a defendant’s challenge to a conviction—
as opposed to a sentence—when the defendant ha[d] pleaded
guilty.” State v. Clements, 

, 

(2014), rev den, 

 (2015); see also State v. Davis, 

, 

 (2014), rev den, 

(2015) (“[Former] ORS 138.050 prohibits a defendant who
pleads guilty or no contest to either a misdemeanor or a fel-
ony from challenging his conviction on appeal.” (Emphasis
omitted.)).
         As the foregoing history demonstrates, when the
legislature passed SB 896 in 2017, it had long been settled
that, when a defendant who had pleaded guilty or no con-
test appealed, the defendant could not challenge the convic-
tion. Over time, many legal challenges arising in different
contexts before the enactment of SB 896 were deemed to
be challenges to a defendant’s conviction that fell within
the bar just described. See, e.g., State v. Clevenger, 

, 

 (1984) (entry of judgment without
making a proper inquiry into the adequacy of the factual
basis for the plea); State v. Woodard, 

,

, rev den, 

 (1993) (conviction for the
crime to which the defendant had pleaded as opposed to
another crime); State v. Balukovic, 

, 

 (1998) (revocation of defendant’s deferred
sentencing program for failure to comply with a purportedly
unlawful condition and failure to furnish a competent inter-
preter at the revocation hearing); State v. Anderson, 

, 

 (2007) (lack of authority to enter a
judgment of conviction where the plea had a proviso that a
conviction would not be entered unless the defendant failed
to satisfy a condition and the court erroneously determined
that a condition had not been satisfied); State v. Brown,

, 

 (2009) (acceptance of an
involuntary plea); State v. Landahl, 

,

 (2012), rev den, 

 (2013) (set aside of
Cite as 

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previous judgment dismissing DUII charge); Clements, 

 (denial of motion to withdraw plea); State v.
Herrera, 

, 

 (2016), rev den,

 (2017) (entry of judgment where the state had
failed to initiate revocation proceedings before the period of
conditional discharge had expired).

          One legal challenge had “vexed” the Court of
Appeals over the years—namely, whether “a challenge to a
trial court’s decision not to merge multiple determinations
of guilt, resulting in the entry of a judgment reflecting mul-
tiple convictions, is a challenge to one or more of those con-
victions” that “cannot confer jurisdiction on [the] court in a
case in which the defendant had pleaded guilty or no con-
test.” Davis, 

. In State v. Sumerlin, 

, 

 (1996), the Court of Appeals
had ruled that such challenges were reviewable because
they pertained to whether a disposition exceeded the max-
imum allowable by law. Thereafter, the Court of Appeals
repeatedly adhered to its decision in Sumerlin, rejecting
arguments that that case had been wrongly decided. Davis,

.

         In sum, at the time that the Oregon Law Commission
submitted SB 896 to the legislature for consideration in 2017,
the preexisting statutory and common law framework had
three salient features. First, a defendant who had pleaded
guilty or no contest could not obtain review of legal chal-
lenges pertaining to a conviction, but could obtain review of
challenges pertaining to a sentence, the scope of which was
governed by statute. Second, “conviction” was understood
broadly to encompass all decisions that led to the entry of
the judgment reflecting the trial court’s judicial determi-
nation of a defendant’s guilt. Third, legal challenges con-
cerning merger were reviewable. As we will explain—and
contrary to defendant’s contentions that SB 896 “is more
like the 1864 law” on reviewability and was intended to
“preclude[ ] review of the guilty finding but permit[ ] review
of other rulings”—the legislative history demonstrates an
intent to retain those three aspects of the preexisting frame-
work while making some changes to the scope of review of
sentencing decisions in misdemeanor cases.
492                                         State v. Colgrove

D. Legislative History
         The primary legislative history is a work group
report that the commission submitted to the legislature,
explaining SB 896 in detail. Exhibit 37, Senate Committee
on Judiciary, SB 896, Apr 6, 2017 (Report of the Direct
Criminal Appeals Work Group on SB 896 (2017), Oregon Law
Commission) (Criminal Appeals Report). The work group had
been tasked with “reorganizing, streamlining, and clarify-
ing existing statutory provisions.” Criminal Appeals Report
at 2. In addition, the work group “propose[d] to codify some
case law, to modernize some older statutory provisions, and
to make a few substantive changes to the law, as outlined in
this Legislative Report.” 

 As Judge Stephen Bushong—a
Commissioner of the Oregon Law Commission and the work
group’s chair—explained to the legislature, the purpose of
the report was to provide “a roadmap for the practitioners
who utilize this * * * system,” because, “any time you change
a word or two in a * * * statute,” lawyers “think * * * there’s
some significance or what’s the meaning of that change” and
the work group “wanted to explain in some detail what [it]
did and why, so that it was clear and understandable.” Audio
Recording, Senate Committee on Judiciary, SB 896, Apr 6,
2017, at 1:28:47 (testimony of Judge Stephen Bushong),
https://olis.oregonlegislature.gov (accessed Nov 16, 2022).
         Although defendant points to various memoranda
in appendices attached to the report to support her conten-
tion that the work group likely intended to make legal chal-
lenges reviewable (such as, e.g., an erroneous termination
of a defendant’s diversion), the report explained that “[t]he
memoranda reflect[ed] the views of the respective authors
of the memoranda and [did] not necessarily reflect the view
of all Work Group members or the Work Group collectively.”
Criminal Appeals Report at 3. Further, each memorandum
began with a disclaimer stating, “Disclaimer: Any legal
analysis or expression of opinion is that of the author of the
memorandum and do not necessarily reflect the views of the
Oregon Law Commission, the Work Group as a whole[,] or
its members.” See, e.g., id. at 29 (boldface omitted). Because
the memoranda did not reflect the intention of the work
group or the Oregon Law Commission, and because there
is no indication that the legislature intended to depart from
Cite as 

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the work group’s official position, we focus on the text of the
report itself as opposed to its appendices. See Gaines, 

 (“[T]he court may give whatever weight it deems
appropriate to the legislative history that a party offers.”).
         According to the report, “the current statutory
scheme (and case law)” did not “always clearly distinguish”
between “appealability” (i.e., “a circuit court decision that
the Legislature has authorized the State or the defendant
to appeal, such as a judgment of conviction and sentence”)
and “reviewability” (i.e., “whether the appellate court may
consider and decide requests to review the validity of any of
the myriad decisions a trial court may make along the way
to rendering an appealable judgment or order”). Criminal
Appeals Report at 5-6. The report explained that those con-
cepts were not congruent for a variety of reasons, including
that, in the context of cases involving guilty or no contest
pleas, “the Legislature ha[d] disallowed appellate court
review of the trial court’s decision to enter a judgment of
conviction for [the] crime.” Id. at 6.
         As pertinent to the interpretive issue in this case,
the report explained that the primary intent behind what is
now ORS 138.105(5) was to restate existing legal principles.
Paragraph (5)(a) was “intended to restate the principle cur-
rently found in [former] ORS 138.050(1)(a)”—that is, when a
defendant has “pleaded guilty or no contest to the offense of
which the defendant was convicted, on appeal, the appellate
court may not review the validity of the plea or the conviction,
except when the defendant, under ORS 135.335, has reserved
in writing an adverse pre-trial trial court ruling for appeal.”
Criminal Appeals Report at 20. Paragraph (5)(b) was “new
statutory law relating to merger of determinations of guilt.” Id.
Citing the Court of Appeals decisions in Sumerlin and Davis,
the report explained that, “conceptually, merger has to do
with whether the defendant is guilty of one or more offenses.”
Id. The report further explained that paragraph (5)(b)
reflected the current “appellate practice and authorize[d]
appellate court review of a merger issue,” subject to a new
limitation precluding review “if the trial court convicted the
defendant of multiple offenses pursuant to a plea agreement
in which the defendant agreed to plead guilty or no contest to
the convictions in question.” Id. at 20-21.
494                                                      State v. Colgrove

         Further, the report identified an intent to expand
the scope of review of sentences for misdemeanor offenses,
in what became ORS 138.105(7). Criminal Appeals Report
at 21; see id. at 9 n 4 (“[T]he Work Group does intend to
change the scope of review on appeal of sentences for misde-
meanor convictions.”). Relatedly, the report explained that
the work group had broadly defined the term “sentence”
to mean “all of the legal consequences a court may impose
based on a conviction, including post-judgment events such
as probation revocation” and that the nonexclusive list of
legal consequences specifically delineated in what is now
ORS 138.005(5)(a) and (b) were “derived from the list of legal
consequences described in ORS 137.071(1)(g) that a judge
may impose and, if so imposed, must be in the judgment
of conviction,” and “the list of ‘dispositions’ presently found
in [former] ORS 138.053(1),” respectively. Criminal Appeals
Report at 9.
         In sum, consistently with the preexisting common
law and statutory framework, the work group intended to
“restate” the principle that a defendant who had pleaded
guilty or no contest could not obtain review of legal chal-
lenges to the judicial determination of guilt reflected in the
judgment on appeal, which encompassed intermediate trial
court decisions, as evidenced by the exception identified for
review of adverse pretrial rulings under ORS 135.335.6 The
work group also acknowledged that, conceptually, “merger”
relates to whether a trial court may convict a defendant of
one or more offenses, and it created an exception authoriz-
ing review, which essentially codified the existing appellate
practice. Finally, the work group retained appellate court
    6
      See also Criminal Appeals Report at 14 (“Historically, Oregon law has
imposed limits on a defendant’s opportunity to appeal when a conviction is based
on a plea of guilty or no contest. However, there are exceptions. [Former] ORS
138.050(1) currently allows a defendant to appeal from a judgment of convic-
tion based on a guilty or no contest plea if, under ORS 135.335, as a part of
the defendant’s plea, the defendant has reserved in writing an adverse pre-trial
court ruling for appeal. [Former] ORS 138.050(1) also allows an appeal where the
defendant wishes to take issue with the sentence imposed by the trial court.”);
id. at 20 (discussing the provision of the bill that became ORS 138.105(3), the
general authorization to review “any intermediate decision of the trial court”;
explaining that the text of that provision includes “a qualifier—‘except as pro-
vided in this section’—because, under current law, there are limits on the appel-
late courts’ authority to review intermediate trial court decisions, and the bill
carries forward those limitations” (brackets omitted)).
Cite as 

 (2022)                                   495

authority to review challenges to sentences—the legal con-
sequences that a court may impose after conviction—but
expanded the scope of that sentence review in the context of
misdemeanor cases.
         Defendant contends, however, that the legislative
history indicates that “the legislature did not retain the limits
of former ORS 138.050 or anything like them.” Specifically,
defendant points to aspects of the legislative history indi-
cating that the legislature understood that SB 896 “would
expand appellate review in misdemeanor cases.” From
that history, defendant reasons that it should “come as no
surprise that the bill would allow review in misdemeanor
cases that were not reviewable before, such as DUII
diversion cases.” See, e.g., Audio Recording, Senate Floor
Debate, SB 896, June 14, 2017, at 35:16 (statement of Sen
Floyd Prozanski), https://olis.oregonlegislature.gov (accessed
Nov 16, 2022) (“The measure provides more opportunity for
the appeal of misdemeanor cases, but, at this point, we’re not
sure exactly what impact it may have or not have. The num-
ber of appeals will increase.”). However, our understanding
of the legislative history is different than defendant’s.
         Defendant’s contention finds its origin in discus-
sions concerning the expansion of the scope of review of mis-
demeanor sentences. The fiscal impact statement associated
with SB 896 indicated that the impact was “indeterminate”
and explained that “[t]he Department of Justice (DOJ) [had
noted] that[,] because the measure provides for more oppor-
tunity to appeal misdemeanor cases, there is likely to [be]
some impact on the Appellate Division’s Defense of Criminal
Convictions program.” Fiscal Impact Statement, SB 896,
Apr 5, 2017.
         In addressing the potential, indeterminate fiscal
impact, then-Appellate Commissioner James W. Nass—
who had authored the Criminal Appeals Report as the
work group’s reporter—acknowledged that the change in
the scope of review of misdemeanor sentences could lead to
an increase in the number of cases. Audio Recording, Joint
Committee on Ways and Means Subcommittee on Public
Safety, SB 896, June 5, 2017, at 22:58 (testimony of James
W. Nass), https://olis.oregonlegislature.gov (accessed Nov 16,
496                                              State v. 

). However, Nass explained that such an increase was
“not likely” because misdemeanor sentences cannot exceed
one year in length and cases challenging such sentences
therefore “usually become moot” while an appeal is pending.
Id. at 23:02. According to Nass, the expansion of the scope of
review of sentences in misdemeanor cases
   “was one of the contentious issues that the representatives
   of the district attorneys’ office[s], defense bar, and then the
   Office of Public Defense Services and Solicitor General’s
   Office * * * discussed and worked their way through. I was
   not a party to that, but the representation at the end of the
   day was that they all could live with this.”
Id. at 24:38. In conclusion, Nass commented, the work group
“certainly would not have advocated for making a change in
the law if [the group] thought it would substantially increase
the court’s workload.” Id. at 24:05. Aaron Knott, Legislative
Director for the Department of Justice, essentially expressed
agreement with Nass’s assessment of the potential fiscal
impact, id. at 27:35, as did Ernest Lannet, Chief Defender
of the Criminal Appellate Section of the Appellate Division
of the Office of Public Defense Services and a member of the
work group, who testified that “Commissioner Nass has * * *
represented what has gone on and the process and where we
ended up,” id. at 30:38.
         In the light of that history, defendant is correct
that the legislature understood that SB 896 could cause an
increase in the number of appeals in misdemeanor cases.
However, the history clearly demonstrates that any such
increase would be attributed to the expansion of the scope
of review of sentences in appeals involving misdemeanors.
Thus, defendant’s reliance on that history to conclude that
the legislature intended to permit defendants who plead
guilty or no contest to challenge their convictions on appeal
is misplaced.
         The foregoing analysis demonstrates that defen-
dant’s proposed reading of “conviction” in ORS 138.105(5)
to mean “finding of guilt” is untenable when the text is
examined in context and in light of its legislative history.
We conclude that the legislature intended the term “con-
viction” to refer to the trial court’s judgment—that is, the
Cite as 

 (2022)                                                     497

judicial determination of guilt as reflected in the judgment
entered on the plea, which encompasses intermediate trial
court rulings that led to the entry of the judgment contain-
ing that judicial determination. Accordingly, we further
conclude that the legislature intended for ORS 138.105(5) to
preclude a defendant who has pleaded guilty or no contest
from obtaining appellate review of legal challenges to the
conviction in the judgment entered in the trial court.
           III.    CONSTITUTIONAL CHALLENGES
          That brings us to defendant’s final contention—viz.,
that “interpreting ORS 138.105(5) to preclude review in
this case would render the statute unconstitutional” under
the state and federal constitutions, and that, to avoid such
a constitutional problem, we should adopt her construction
of ORS 138.105(5). See State v. Kitzman, 

,

 (1996) (“[W]hen one plausible construction of a
statute is constitutional and another plausible construction
of a statute is unconstitutional, courts will assume that the
legislature intended the constitutional meaning.”). We turn
first to defendant’s arguments concerning the state consti-
tution. See Sterling v. Cupp, 

, 

(1981) (“The proper sequence is to analyze the state’s law,
including its constitutional law, before reaching a federal
constitutional claim.”).
A.    Oregon Constitution
         Relying on Article VII (Amended), section 3,7 defen-
dant contends that “the legislature can control how a party
initiates an appeal, but it cannot limit the court’s powers
    7
      Defendant’s arguments are based primarily on the second and third sen-
tences of Article VII (Amended), section 3, which provide:
    “[2] Until otherwise provided by law, upon appeal of any case to the supreme
    court, either party may have attached to the bill of exceptions the whole testi-
    mony, the instructions of the court to the jury, and any other matter material
    to the decision of the appeal. [3] If the supreme court shall be of opinion,
    after consideration of all the matters thus submitted, that the judgment
    of the court appealed from was such as should have been rendered in the
    case, such judgment shall be affirmed, notwithstanding any error committed
    during the trial; or if, in any respect, the judgment appealed from should be
    changed, and the supreme court shall be of opinion that it can determine
    what judgment should have been entered in the court below, it shall direct
    such judgment to be entered in the same manner and with like effect as
    decrees are now entered in equity cases on appeal to the supreme court.”
498                                             State v. Colgrove

and duties on appeal” and that appellate courts have “the
power and duty to review the lawfulness of trial court judg-
ments whenever the legislature has authorized a party to
appeal the judgment.” According to defendant, “[t]he distinc-
tion between appealability and reviewability is key”:
   “When the legislature makes decisions about appealabil-
   ity, its power over the appellate process is at is greatest—it
   alone decides whether to authorize a party to appeal. A dis-
   pute about whether a particular judgment or order should
   be appealable is a dispute between the legislature and the
   party who wishes to appeal, not the judiciary.
       “But when the legislature makes decisions about review-
   ability, its power is at its weakest—it is limiting the power
   of the court to adjudicate a case that is properly before the
   court. A dispute over whether an appellate court should
   affirm or reverse a judgment is a dispute between the par-
   ties and the court, in which the legislature should have lit-
   tle or no role.”
However, as we will explain, defendant’s argument rests on
a faulty premise—namely, that the right to appeal a judg-
ment or order implicates only appealability.
        Contrary to defendant’s position, in State v. Nix, 

, 

 (2015), we explained that the right
to appeal, which is a legislative prerogative, encompasses
both “appealability” and “reviewability”:
   “There is no inherent right to an appeal. State v. McAnulty,
   

, 

 (2014)[, cert den, 

   (2015)]. Instead, the right to appeal must be statutorily
   authorized. Waybrant v. Bernstein, 

, 

 (1983). The statute authorizing an appeal may
   include limitations on the issues that may be reviewed in
   an appeal. Logsdon v. State and Dell, 

, 

 (1963).”
See also State v. Endsley, 

, 

(1958) (“ ‘The legislature * * * has the power to define in what
cases, and under what circumstances, and in what manner,
an appeal may be taken to this court.’ ” (Quoting City of
Portland v. Gaston, 

, 

 (1901)). Before
the enactment of SB 896, statutes authorizing an appeal
often governed both “appealability” and “reviewability,” and
Cite as 

 (2022)                                   499

the grants were often coextensive. The legislature’s decision
in SB 896 to express those concepts in more than one statute
does not affect the long-standing principle that the legisla-
ture may limit the issues that a court may review on appeal.
          Defendant further contends that Article VII
(Amended), section 1, in providing that “[t]he judicial power
of the state shall be vested in one supreme court and in
such other courts as may from time to time be created by
law,” thus prohibits legislative limitations on reviewabil-
ity because such statutes “interfere[ ] with the judiciary
in a manner which prevents or obstructs the performance
of its irreducible constitutional task, adjudication.” Circuit
Court v. AFSCME, 

, 

 (1983). In
AFSCME, however, we explained that “[t]here can be no
question that the legislature may enact laws prescribing the
exercise of judicial powers.” 

. “Only an outright
hindrance of a court’s ability to adjudicate a case” or “the
substantial destruction of the exercise of a power essential
to the adjudicatory function will prompt an [A]rticle VII,
section 1[,] violation.” 

 (internal citations omitted).
We do not understand ORS 138.105(5) to affect the court’s
adjudicative function. The limits on review in that statute
affect what issues the court is authorized to review, not how
the court may resolve them. Cf. City of Damascus v. State of
Oregon, 

, 

 (2020) (declining leg-
islature’s instruction to decide reviewable issues in a partic-
ular order). Although defendant is correct that an appellate
court will “affirm” a judgment to the extent that an issue is
unreviewable, that reflects nothing more than the court’s
understanding of the proper disposition when an issue is not
within the scope of review on appeal. Thus, we conclude that
ORS 138.105(5) does not violate the Oregon Constitution as
defendant contends.
B.   United States Constitution
         Defendant also contends that, if ORS 138.105(5)
bars review of a decision to terminate diversion, the statute
violates the Fourteenth Amendment to the United States
Constitution, which provides that “[n]o State shall * * *
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
500                                          State v. Colgrove

the equal protection of the laws.” We have considered defen-
dant’s arguments and reviewed the cases she has cited in
support of them. Ultimately, defendant has not presented
a sufficiently well-developed argument to persuade us that
the statute is unconstitutional.
                     IV. CONCLUSION
         We have examined the text of ORS 138.105(5) in
context—which included a comprehensive review of the pre-
existing common law and statutory framework within which
the statute was enacted—along with the statute’s legislative
history. Having done so, we conclude that ORS 138.105(5)
precludes a defendant who pleads guilty or no contest from
obtaining appellate review of legal challenges to the “convic-
tion” in the judgment entered in the trial court. As used in
that statute, the term “conviction” refers to the trial court’s
judgment—that is, the judicial determination of guilt as
reflected in the judgment entered on the plea, which encom-
passes intermediate trial court rulings that led to the entry
of the judgment containing that judicial determination.
         The practical effect of the reviewability bar in ORS
138.105(5) will vary depending on context. In the context
of DUII diversion, ORS 138.105(5) precludes a defendant
from obtaining direct appellate review of legal rulings made
during the lengthy post-plea diversion process. However, it
appears that, if a trial court dismisses a defendant’s DUII
charge, the state is permitted to appeal and obtain review
of the court’s post-plea rulings that led to the dismissal.
This case highlights that distinction, which appears to be
a function of the interrelationship between the DUII diver-
sion scheme and the law governing criminal appeals. The
inability of a defendant to obtain direct appellate review
of a trial court’s post-plea legal decisions during the DUII
diversion process is curious, particularly when the legisla-
ture has enacted a detailed statutory scheme that affords
DUII defendants various rights and, in some circumstances,
imposes duties on the trial courts. Now that the practical
interrelationship between the DUII diversion scheme and
the law governing criminal appeals is clearly in focus, the
legislature, if it chooses to do so, can revisit and recalibrate
its enactments and permit defendants who plead guilty or
Cite as 

 (2022)                                 501

no contest to DUII to challenge on direct appeal the legal
rulings that were made as part of the post-plea diversion
process as long as the law that it enacts is consistent with
any limits imposed by state and federal law.
         The decision of the Court of Appeals is affirmed.
The circuit court’s judgment of conviction is affirmed in part
and vacated in part, and the case is remanded to the circuit
court for further proceedings. The circuit court’s judgment
for the costs of appointed counsel is reversed.