State v. Juarez-Hernandez ( 2024 )

794 July 17, 2024 No. 496
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BENITO JUAREZ-HERNANDEZ,
Defendant-Appellant.
Washington County Circuit Court
19CR34942, 19CR61978; A180096 (Control), A180097
Theodore E. Sims, Judge.
Submitted May 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Cite as 333 Or App 794 (2024) 795
KAMINS, J.
In this consolidated criminal appeal, defendant
appeals a judgment of conviction for various sex crimes. In
his only assignment of error, defendant contends that the
trial court plainly erred in denying his right of allocution
because he did not speak at his sentencing hearing. Because
defendant had the opportunity to speak at the hearing, we
affirm.
The pertinent facts are undisputed. Defendant was
convicted of various child sex abuse crimes. In two cases,
consolidated for appeal, defendant previously argued to this
court that the trial court erred in concluding that one of the
sexual abuse verdicts should have run concurrently, rather
than consecutively, with one of the counts of using a child
in a display of sexually explicit conduct. State v. Juarez-
Hernandez, 319 Or App 423, 424, 510 P3d 981, rev den, 370
Or 197, 514 P3d 1116 (2022). We agreed and remanded for
resentencing. Id.During that resentencing hearing, defense counsel
described the shorter sentences given to the other defen-
dants in the case and argued that the trial court should
impose a sentence “more in line” with those sentences.
After she articulated defendant’s position, defense counsel
concluded by saying “[o]ther than that, Your Honor, I have
nothing further.” The state argued its position, and the trial
court imposed defendant’s sentence. On appeal, defendant
contends that the trial court erred by denying him an oppor-
tunity to address the court.
Defendant acknowledges that the alleged error is
unpreserved but requests plain error review. “For an error
to be plain error, it must be an error of law, obvious and not
reasonably in dispute, and apparent on the record without
requiring the court to choose among competing inferences.”
State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).
Whether a court violated a defendant’s right to allocution is
reviewed for legal error. State v. Rogers, 330 Or 282, 305-08,
4 P3d 1261 (2000).
Under Article I, section 11, of the Oregon Constitution,
an accused defendant in a criminal prosecution has “the
796 State v. Juarez-Hernandez
right * * * to be heard by himself and counsel[.]” That right of
allocution extends to sentencing hearings. State v. Rickard,
225 Or App 488, 491, 201 P3d 927 (2009).
In this case, any error is not plain. At resentencing,
defense counsel never indicated that defendant wanted to
address the trial court, which is the exact opposite of what
occurred at defendant’s first sentencing. Indeed, at defen-
dant’s first sentencing, defense counsel stated that “I believe
that [defendant] wanted to make a brief statement.” At the
resentencing hearing at issue, however, defense counsel
stated only that they had “nothing further” to say. Because
defendant did not in any way indicate to the court that he
wished to speak, nor does he now argue that the right can-
not be exercised by counsel, the court did not deny him the
right of allocution. See State v. Fern, 110 Or App 185, 187,
822 P2d 1210 (1991) (explaining that when nothing in the
record indicates that a defendant wished to speak, there is
no error for this court to review); see also State v. Ross, 331
Or App 570, 573, 546 P3d 960 (2024) (explaining that the
court did not deny defendant’s right to speak because he
did not indicate that he wished to make an allocution until
after he was sentenced). Accordingly, the trial court did not
plainly err.
Affirmed.