State v. Shubert ( 2021 )

378
Submitted March 4, affirmed March 31, petition for review denied July 29, 2021
(368 Or 511)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER NEIL SHUBERT,
Defendant-Appellant.
Linn County Circuit Court
17CR66808, 18CR73915;
A171298 (Control), A171299
484 P3d 406
Rachel Kittson-MaQatish, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
Cite as 310 Or App 378 (2021) 379
PER CURIAM
In this consolidated appeal, defendant appeals a
judgment of conviction for one count of unlawful possession
of methamphetamine in violation of ORS 475.894 and a sep-
arate probation violation judgment. The probation violation
judgment was based on defendant’s conviction of unlawful
possession of methamphetamine. In the methamphetamine
case, defendant was charged by information. Relying on our
decision in State v. Keys, 302 Or App 514, 523-24, 460 P3d
1020, rev allowed, 366 Or 760 (2020), defendant contends
that he is entitled to reversal of his conviction because the
record does not show that he knowingly waived the right
to a preliminary hearing. And, defendant contends, because
the probation violation judgment was based on that convic-
tion, he is entitled to reversal of that as well.
Although the state has not raised the issue, we
must first consider whether the challenge to the judgment of
conviction is reviewable. That is because the legislature has
limited our authority to review convictions resulting from
guilty pleas, ORS 138.105(5), and, here, defendant’s convic-
tion resulted from a guilty plea.
ORS 138.105(5) provides that, subject to two excep-
tions, “[t]he appellate court has no authority to review the
validity of the defendant’s plea of guilty or no contest, or a
conviction based on the defendant’s plea of guilty or no con-
test[.]” Neither of the two exceptions applies here. Defendant
did not enter a conditional guilty plea reserving the right
to appeal this issue, ORS 138.105(5)(a), and the issue is not
one of merger, ORS 138.105(5)(b). That means we “ha[ve] no
authority to review” defendant’s challenge to his conviction
based on Keys. ORS 138.105(5). Because defendant’s chal-
lenge to the probation violation judgment is dependent on
our acceptance of his Keys contention, we have no basis to
disturb that judgment either.
Affirmed.