State v. Davis-McCoy

                                       326

                 Submitted October 4, affirmed October 30, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                CHRISTOFER MARK DAVIS-McCOY,
                       Defendant-Appellant.
                   Jackson County Circuit Court
                       16CR69646; A167424
                                    

     Defendant appeals a judgment revoking his probation on two felony counts
and imposing consecutive sanctions of 28 months’ incarceration and two years of
post-prison supervision as to each count. The sentences of incarceration were the
product of a plea agreement whereby defendant agreed that, if his probation were
to be revoked, he would serve 28-month sentences. Despite that stipulated term
of the plea agreement, he now argues that his terms of incarceration are unlaw-
ful because they exceed the maximum presumptive prison term that initially
could have been imposed under the sentencing guidelines. The state responds
that, because defendant stipulated to those terms of incarceration, his claim of
error is not reviewable under ORS 138.105(9), which provides that an “appellate
court has no authority to review any part of a sentence resulting from a stipu-
lated sentencing agreement between the state and the defendant.” Held: In State
v. Silsby, 

, 

 (2016), rev den, 

 (2017), the court
held that a stipulation to a sentence upon revocation was not reviewable under
the statutory predecessor to ORS 138.105(9), former ORS 138.222(2)(d) (2015),
repealed by Or Laws 2017, ch 529, § 26. Given the textual similarities between
ORS 138.105(9) and former ORS 138.222(2)(d) (2015), and legislative history indi-
cating that ORS 138.105(9) was intended to restate existing limits on review-
ability set forth in former ORS 138.222(2)(d) (2015), defendant’s challenge to his
stipulated sentence is likewise not reviewable.
    Affirmed.



    Lisa C. Greif, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
Cite as 

 (2019)   327

  LAGESEN, P. J.
  Affirmed.
328                                              State v. Davis-McCoy

          LAGESEN, P. J.
         Defendant appeals a judgment revoking his pro-
bation on two felony counts and imposing consecutive
sanctions of 28 months’ incarceration and two years of
post-prison supervision as to each count. The sentences of
incarceration were the product of a plea agreement whereby
defendant agreed that, if his probation were to be revoked,
he would serve 28-month sentences. Despite that stipulated
term of the plea agreement, he now argues that his terms
of incarceration are unlawful because they exceed the max-
imum presumptive prison term that initially could have
been imposed under the sentencing guidelines. The state
responds that, because defendant stipulated to those terms
of incarceration, his claim of error is not reviewable. We
agree with the state and affirm.
         The judgment on appeal was entered in March
2018 and is therefore governed by ORS 138.105.1 That stat-
ute provides that, “[o]n appeal by a defendant, the appellate
court has authority to review the judgment or order being
appealed, subject to the provisions of this section.” ORS
138.105(1). One of those provisions imposes an express lim-
itation on our ability to review stipulated sentences: “The
appellate court has no authority to review any part of a
sentence resulting from a stipulated sentencing agreement
between the state and the defendant.” ORS 138.105(9).
         Although we have not yet had an opportunity to con-
strue that provision, we interpreted its predecessor, former
ORS 138.222(2)(d) (2015), repealed by Or Laws 2017, ch 529,
§ 26, in State v. Silsby, 

, 

 (2016), rev den, 

 (2017). In Silsby, the defen-
dant, as part of her plea agreement, stipulated to a sentence
of 80 months’ incarceration upon revocation, and she later
assigned error to that sentence on the ground that it was
longer than the 25-26 month sentence authorized by the
sentencing guidelines for a probation revocation sentence.

. The state responded that her claim of error was
not reviewable in light of former ORS 138.222(2)(d) (2015),
    1
      ORS 138.105 applies to appeals from judgments entered by the trial court
on or after January 1, 2018. Or Laws 2017, ch 529, § 28.
Cite as 

 (2019)                             329

which provided that an appellate court may not review
“[a]ny sentence resulting from a stipulated sentencing agree-
ment between the state and the defendant which the sen-
tencing court approves on the record.” 

          The defendant in Silsby argued that her sentence
did not fall within the meaning of former ORS 138.222(2)(d)
(2015) because it was not a “stipulated sentence” as “illus-
trated in ORS 135.407.” 

 (discussing State v.
Kephart, 

, 

 (1994), which held
that former ORS 138.222(2)(d) (1993) does not bar review
of sentences “unless they [are] ‘stipulated sentences’ as
illustrated in ORS 135.407”). In the defendant’s view, “ORS
135.407 does not explicitly permit a person to stipulate to
a future sentence upon probation revocation” and, more-
over, “ORS 135.407 requires a sentence to comport with the
guidelines.” Silsby, 

. We rejected those
arguments and instead held that the defendant’s stipulated
sentence had the “hallmarks of a sentence ‘illustrated in’
ORS 135.407. It was imposed pursuant to agreement, it is a
specific sentence, and the trial court imposed that agreed-
upon specific sentence.” 

. Thus, we concluded that
“defendant’s stipulated sentence is one that is ‘illustrated
in’ ORS 135.407” and “ORS 138.222(2)(d) bars our review of
defendant’s claim that that agreed-upon sentence is unlaw-
ful.” 

          In 2017, the legislature repealed former ORS
138.222(2)(d) (2015) as part of an overhaul of statutes related
to criminal appeals, and it enacted ORS 138.105(9) in its
place. The two statutes use an identical phrase—“sentence
resulting from a stipulated sentencing agreement”—and
there is no indication in the context or history of the stat-
ute that the legislature intended to change existing law
with regard to the reviewability of stipulated sentences.
Rather, the legislative history of the 2017 legislation con-
firms that ORS 138.105(9) was “intended to restate the
limits on reviewability currently set forth in ORS 138.222
(2)(d).” See Report of the Direct Criminal Appeals Work
Group on SB 896 (2017) (Criminal Appeals Report), Oregon
Law Commission, 21. Although the new statute differs from
former ORS 138.222(2)(d) (2015) in minor ways, the legisla-
tive history emphasizes that the new provision was intended
330                                                 State v. Davis-McCoy

to preclude review of any portion of a sentence that is the
product of the parties’ stipulation:
       “Subsection (9) is intended to restate the limits on
    reviewability currently set forth in ORS 138.222(2)(d). It
    omits the phrase ‘which the sentencing court approved on
    the record,’ because the important factor is whether the
    parties stipulated to the sentence, not whether the trial
    judge approved the stipulation ‘on the record’ somewhere
    other than as reflected in the judgment of conviction and
    sentence itself. The addition of the phrase ‘any part of a’
    before ‘sentence’ is not intended to change current law.
    Rather, the Work Group added the phrase to make explicit
    the conclusion in State v. Capri, 

, 

 (2012), and State v. Davis, 

,
    

 (1995), that any portion of a sentence not
    agreed to between the state and a defendant is reviewable;
    that is, only those parts of the sentence the defendant and
    the State stipulated to are not subject to review.”
Criminal Appeals Report at 20-21.
         On appeal, defendant has not attempted to distin-
guish Silsby or offered any explanation why our reasoning
in that case should not carry over to ORS 138.105(9). Given
the textual similarities between the two statutes, and the
evident legislative intent to restate the existing limits on
reviewability set forth in former ORS 138.222(2)(d) (2015)—
including the limitation on review of stipulated sentences
described in Silsby2 —we hold that defendant’s challenge to
his stipulated sentence upon revocation is not reviewable
under ORS 138.105(9).
           Affirmed.




    2
      Although Silsby is not mentioned specifically in the section of the Criminal
Appeals Report concerning ORS 138.105(9), it is mentioned elsewhere in the
report, and the drafters of SB 896 were undoubtedly aware of that case.