State v. Wedebrook ( 2021 )

1
Submitted October 27, 2020, affirmed December 1, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
AMY KATHRYN WEDEBROOK,
Defendant-Appellant.
Clackamas County Circuit Court
17CR40091; A170421
501 P3d 1084
In this criminal appeal, defendant contests, among other things, the trial
court’s imposition of 12 months’ jail time when it sentenced defendant to proba-
tion. Defendant requests plain error review of that aspect of the sentence, which
exceeded the administrative rules limit of 90 days’ jail time in the circumstances
of this case. The state concedes that that portion of the sentence was legally erro-
neous. Held: The sentencing record allows the view that defendant made a tac-
tical or strategic choice that encouraged the court to impose the erroneous sen-
tence that the court announced at sentencing, as part of an effort by defendant
to avoid a longer prison sentence requested by the state. Because of that choice,
defendant may have avoided, to her benefit, a longer term of imprisonment, and
the Court of Appeals therefore declined to exercise our discretion to correct the
plainly erroneous sentence.
Affirmed.
Douglas V. Van Dyk, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Affirmed.
2 State v. Wedebrook
ARMSTRONG, P. J.
Defendant was convicted by unanimous jury ver-
dict of promoting prostitution, ORS 167.012. On appeal, in
three assignments of error, defendant contends that the
trial court erred by: (1) admitting evidence under OEC
404(3) of uncharged misconduct by defendant; (2) imposing
12 months’ jail time when it sentenced defendant to pro-
bation; and (3) instructing the jury that it could return a
nonunanimous verdict. We reject the assignment regarding
the nonunanimous verdict jury instruction for the reasons
set forth in State v. Flores Ramos, 367 Or 292, 478 P3d 515
(2020) (holding that nonunanimous jury instruction was not
a structural error), and State v. Chorney-Phillips, 367 Or
355, 478 P3d 504 (2020) (declining to review as plain error
the nonunanimous jury instruction when the jury returned
a unanimous verdict). We reject without written discus-
sion the assignment directed to the admission of evidence
of uncharged misconduct. For the reasons described below,
we decline to exercise our discretion to correct the error in
the sentence that the trial court imposed and, accordingly,
affirm.
Defendant contends in her second assignment that
the trial court erred when it imposed a 12-month jail term
as part of the probation sentence that it imposed. The state
concedes that the court plainly erred in imposing 12 months’
jail time because that sanction was not authorized under
applicable administrative rules, which generally would limit
jail time to 90 days in this circumstance.
Even accepting the state’s concession that the jail
sentence was plainly erroneous, we still must decide whether
to exercise our discretion to correct the error. See State v.
Taylor, 295 Or App 32, 35-36, 433 P3d 486 (2018) (explain-
ing in the context of criminal sentencing the application
of the two-step analysis for plain error prescribed by Ailes
v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956(1991)).
In addition to the general factors that we consider
when deciding whether to review a plain error, see Ailes, 312
Or at 381-82, in the context of sentencing errors specifically
we consider
Cite as 316 Or App 1 (2021) 3
“whether the defendant encouraged the trial court’s impo-
sition of the erroneous sentence, the possibility that the
defendant made a strategic choice not to object to the sen-
tence, the role of other sentences in the case, and the inter-
ests of the justice system in avoiding unnecessary, repeti-
tive sentencing proceedings.”
State v. Allen, 285 Or App 667, 669, 398 P3d 497, rev den,
361 Or 886 (2017). Of particular importance in this case is
whether defendant “encouraged the trial court’s imposition
of the erroneous sentence.” Id. That is so because, generally,
“invited error is not a basis for reversal.” State ex rel Juv.
Dept. v. S. P., 346 Or 592, 606, 215 P3d 847 (2009).
Here, the state asked for a 20-month prison sen-
tence because “the facts of this case were so egregious with
respect to the vulnerability of [the victim].” The trial court
instead was considering probation but, in light of the vic-
tim’s vulnerability, was inclined to include some custody in
the sentence. The court specifically asked defense counsel,
“am I limited to 90 days of custody units under the rules?
* * * What’s my limitation?” Thereafter, defense counsel
offered that “as far as custody units my understanding * * *
is that anything under a year stays at county.” While the
court acknowledged that there was no relationship between
where a person serves their sentence and the sentence
that a court may lawfully impose, defense counsel added,
“I think your discretion is your discretion.” It is apparent
from the context of the conversation between the court and
defense counsel that the court originally believed the court
might be limited to imposing no more than 90 days’ jail
time under the applicable administrative rules but, after
discussion, was led to believe any jail term under a year
was acceptable. Given the parties’ respective positions as to
what might be an appropriate sentence, it is possible to view
defense counsel’s statements suggesting that the court was
not limited to a 90-day jail sanction to be part of a “tac-
tical or strategic choice” that benefited defendant. Taylor,
295 Or App at 37. The plausible tactical choice defendant
could have made was that, when the court was considering
either a prison sentence or a probation plus jail sentence,
if the court understood that it was limited to a 90-day jail
term under the probation regime, it may well have opted
4 State v. Wedebrook
for the prison sentence. By either nudging the court toward
imposing the erroneous jail sentence or leaving the error
uncorrected when it was announced, defendant avoided, to
her benefit, a potential prison sentence. See id. (discussing
potential and plausible tactical choices for failure to object
to unlawful sentences).
That defendant was instrumental in bringing about
the error dissuades us from exercising our discretion to cor-
rect it. Despite the admittedly erroneous sentence, we will
not exercise our discretion to correct it.
Affirmed.