State v. Thomas , 322 Or. App. 379 ( 2022 )

379
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted September 14, affirmed October 12, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN MICHAEL THOMAS,
Defendant-Appellant.
Linn County Circuit Court
18CR63362; A175261
Michael B. Wynhausen, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed. State v. Merrill, 311 Or App 487, 492 P3d 722,
adh’d to as modified on recons, 314 Or App 460, 495 P3d 219
(2021); State v. Redick, 312 Or App 260, 491 P3d 87 (2021).
Egan, J., concurring.
380 State v. Thomas
EGAN, J., concurring.
Defendant pleaded no contest to one count of driv-
ing under the influence of intoxicants (DUII), ORS 813.010,
and entered into a diversion agreement as allowed by ORS
813.200 to 813.270. The trial court terminated defendant’s
diversion after denying defendant’s motion to extend diver-
sion, and defendant appeals the resulting judgment of con-
viction for one count of DUII.
I must concur with the majority’s disposition in
this case because the issue raised is not reviewable. State v.
Merrill, 311 Or App 487, 496, 492 P3d 722, 727-28, adh’d to
as modified on recons, 314 Or App 460, 495 P3d 219 (2021)
(“[O]n appeal of a judgment of conviction resulting from a
plea of guilty or no contest, ORS 138.105(5) precludes appel-
late review of defendant’s contention that her conviction
based on her plea should be reversed because of an alleged
error in terminating diversion.”).
I nonetheless write to express my concerns about
the merits of the trial court’s challenged decision to deny
an extension of diversion. The trial court chose between two
legally cognizable outcomes and, therefore, its decision was
not an abuse of discretion. Neither was the trial court’s deci-
sion made in legal error. Nevertheless, I would be remiss if
I did not point out that the matter would not have been pre-
sented to us in its current posture had the defense simply
refrained from moving for an extension of time to complete
the requirements of probation, and in doing so, informing
the trial court of his relapse and his subsequent efforts to
correct his conduct.1
For this case to have come to us in this posture, the
trial court had to order the prosecutor to request a show
cause hearing after the court discovered that there was no
procedural method for revoking diversion in the face of a
simple motion for extension of time. In addition, the trial
court’s repeated postponements on that motion hearing
during the peak of COVID protocols aggravated the appear-
ance of defendant’s offense.
1
In his motion to extend his diversion, defendant explained the reason that
he had not completed all of the conditions of diversion: “Honestly, I relapsed * * *.”
Nonprecedential Memo Op: 322 Or App 379 (2022) 381
Although the trial court’s decision was legally cor-
rect and within the parameters of the court’s discretion, the
path that the trial court took (and the path that this court
must affirm) tends to undermine the purpose of diversion
and open discussion between the litigant, the state, and
the court of a common occurrence in addiction recovery—
relapse.2
With that caveat, I concur.
2
See, e.g., Nat’l Inst on Drug Abuse, US Dep’t of Health & Hum Servs, NIH
Publ’n No 20-DA-5605, Drugs, Brains, and Behavior: The Science of Addiction 23
(2007) (noting relapse is “common,” describing the “chronic nature of addiction,”
and stating “relapse is a normal part of recovery”).