State v. Valero ( 2023 )

762
This is a nonprecedential memorandum opinion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 March 17, affirmed May 3, 2023, petition for review denied
August 31, 2023 (371 Or 332)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARLOS SANTANA VALERO, JR.,
Defendant-Appellant.
Washington County Circuit Court
19CR67325; A175475
Beth L. Roberts, Judge. (Amended Judgment dated
September 21, 2021)
D. Charles Bailey, Jr., Judge. (Judgment dated January 21,
2021)
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 762 (2023) 763
JOYCE, J.
Defendant was convicted of unlawful delivery and
possession of methamphetamine (Counts 1 and 2, respec-
tively),1 possession of heroin (Count 3), and attempt to elude
a police officer (Count 4). He raises three assignments of
error that challenge his sentences on Counts 1 and 2. He
also raises a claim of error that the trial court lacked juris-
diction to enter an amended judgment. We affirm.
Entry of amended judgment: At the initial sentenc-
ing proceeding, the court merged the verdicts on Counts 1
and 2 and imposed convictions for Counts 1, 3, and 4. Later,
defendant successfully appealed a nonunanimous jury con-
viction on Count 1, which resulted in reversal of Count 1
and necessitated a remand for resentencing. On remand,
the trial court resentenced defendant on Count 2 in January
2021 and set a new trial date for Count 1. Defendant ulti-
mately pleaded guilty to Count 1 in September 2021, and
the trial court entered an amended judgment that specified
the sentences for all counts (at defendant’s request).2
After the court entered the January 2021 judgment
but before it entered the amended judgment, defendant filed a
notice of appeal from the January 2021 judgment. Defendant
now argues that the trial court did not have jurisdiction to
enter the September 2021 judgment because of his appeal
of the January 2021 judgment. See ORS 19.270 (trial court
retains jurisdiction only for limited purposes once an appeal
has been properly initiated); State v. Johnson, 177 Or App
244, 247 n 2, 35 P3d 1024 (2001) (“under ORS 19.270(1), this
court has jurisdiction over a case once an appeal has been
properly initiated”). But, as the state observes, the January
1
Defendant also challenged, and the state conceded as error, the imposition
of post-prison supervision on Count 2 because the prison term, when combined
with the post-prison supervision term, exceeded the statutory maximum for a
Class C felony. After briefing was complete, the trial court granted a motion to
amend the judgment to correct the judgment to omit the post-prison supervision
term. That correction obviates the need to address defendant’s second and third
claims of error.
2
Because defendant had already served his sentences on Counts 3 and 4,
the court did not resentence him on those counts at the hearing, although it did
reimpose the original sentences on those counts in its September 2021 amended
judgment.
764 State v. Valero
2021 judgment was not an appealable judgment because it
did not conclusively dispose of all the charged counts. See
ORS 138.035(1)(a)(A) (judgment that is appealable by crim-
inal defendant is one “[c]onclusively disposing of all counts
in the accusatory instrument or conclusively disposing of
all counts severed from other counts”). Because defendant’s
first appeal was not properly initiated, see ORS 19.270(1),
the trial court retained jurisdiction to enter the amended
judgment from which defendant now appeals.
Imposition of sentence outside of defendant’s presence:
During defendant’s plea hearing on Count 1, the court asked
defendant if he understood that his sentence would include
36 months of imprisonment and three years of post-prison
supervision. Defendant responded affirmatively. The court
then immediately sentenced defendant, orally announc-
ing that it would “sentence [defendant to] the 36 months in
the Department of Correction as an 8-B,” but omitting any
reference to post-prison supervision. Defendant contends,
and the state does not dispute, that the court’s entry of an
amended judgment that included the term of post-prison
supervision violated defendant’s right to be present when
sentenced, under both the state and federal constitutions.
Assuming that defendant is correct that the court
erred, we agree with the state that the error was harm-
less. Viewing defendant as an 8-B, the court was required
to impose three years of post-prison supervision. See OAR
213-005-0002(2)(a) (“post-prison supervision shall be * * *
three years for Crime Categories 711”). Given that defen-
dant acknowledged that he was agreeing to that sentence
and given that the trial court had no discretion but to
impose that period of post-prison supervision, any error in
including that term in the judgment without having orally
announced it is harmless. See State v. Riley, 195 Or App 377,
384, 97 P3d 1269 (2004), rev den, 340 Or 673 (2006) (entry of
an amended judgment in the defendant’s absence is harm-
less where the sentence “involves neither disputed facts nor
the exercise of judicial discretion but occurs entirely by oper-
ation of law”).
Departure sentence: In Count 2, the state charged
defendant with unlawful possession of methamphetamine
Nonprecedential Memo Op: 325 Or App 762 (2023) 765
and, as an element of that charge, alleged that defendant
had a prior felony conviction. The state also alleged two
aggravating factors: (1) prior sanctions had not deterred
defendant from reoffending and (2) defendant was on super-
vision at the time of the offense. Defendant admitted to and
waived his right to a jury on both factors. Accordingly, the
trial court imposed a 60-month upward departure sentence.
Despite having admitted to the factors, on appeal,
defendant raises an unpreserved challenge to the “failure
to deter” enhancement factor, arguing that that factor was
already captured by the “prior felony conviction” element of
the crime. In defendant’s view, OAR 213-008-0002(2) prohib-
ited the court from using it as an aggravating factor absent
a finding that it was “significantly different from the usual
criminal conduct captured by the aspect of the crime.” OAR
213-008-0002(2) (so stating). Relatedly, he also argues that
the factor was already accounted for in his criminal history
score and that, failing both those arguments, the trial court
did not explain why it had a “substantial and compelling
reason” to depart from the presumptive sentence. OAR 213-
008-0001 (requiring a court to find a substantial and com-
pelling reason for the departure).
We conclude that any error was not plain, because,
as defendant acknowledges, it is not clear whether the prior
felony conviction element of the crime and the inclusion of the
prior offenses in his criminal history score fully encompass
the conduct addressed by the “failure to deter” factor. What
is more, we have previously held that if a defendant does not
agree that a trial court’s departure sentence is supported by
“substantial and compelling” reasons, the defendant must
raise a specific objection; absent such an objection, no error
is apparent on the face of the record. State v. Orsi/Gauthier,
108 Or App 176, 180, 813 P2d 82 (1991) (unpreserved claim
that the court’s reasons for departure are not substantial
and compelling “is not an error of law that may be reviewed
as ‘apparent on the face of the record’ ”). We therefore reject
defendant’s claim of error.
Criminal history score: Lastly, defendant challenges
the trial court’s calculation of his criminal history score on
Count 2. At the January 2021 resentencing for Count 2,
766 State v. Valero
counsel for defendant stated that they “believe [defendant]
would be on the Count 2 a 6-A, if that’s correct.” The state
echoed that characterization, noting that defendant’s crimi-
nal history included attempted murder, first-degree assault,
unlawful use of a weapon, and fourth-degree assault. The
trial court identified defendant as being a 6-A on the sen-
tencing guidelines. At the September 2021 sentencing
(during which, as described above, the trial court reimposed
sentences on all counts), it reimposed the same sentence for
Count 2 and used grid block 6-A. The court also sentenced
defendant on Count 1. Pursuant to the parties’ stipula-
tions, the court sentenced defendant for Count 1 under grid
block 8-B. Defendant now maintains that the court erred
in “re-imposing” the sentence for Count 2 under grid block
6-A, appearing to believe that the court used defendant’s
conviction on Count 1 to calculate (and increase) defendant’s
criminal history score. Defendant asserts that use of the A
grid block was “an error.”
Defendant’s unpreserved claim of error fails. It is
not “obvious” for plain-error purposes, given defendant’s
prior convictions for attempted murder, first-degree assault,
and unlawful use of a weapon, that 6-A is an incorrect grid
block for defendant. See OAR 213-004-0007 (classifying
criminal history category as A where an “offender’s criminal
history includes three or more person felonies in any com-
bination of adult convictions”). Indeed, it was defendant’s
counsel, during sentencing on Count 2, who told the court
that defendant was a 6-A. And the fact that the parties
stipulated to a lower grid block for Count 1 does not render
the sentence for Count 2 unlawful; it simply suggests that
defendant obtained the benefit of a lower grid block.
Affirmed.