State v. Wheeler ( 2022 )

273
Submitted May 4, affirmed June 8, petition for review denied October 20, 2022
(370 Or 404)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID WAYNE WHEELER,
Defendant-Appellant.
Lane County Circuit Court
201425078; A174860
511 P3d 1142
Charles M. Zennaché, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Pagán, Judge, and
Armstrong, Senior Judge.
PER CURIAM
Affirmed.
274 State v. Wheeler
PER CURIAM
Defendant appeals from a probation violation judg-
ment, which revoked his probation and sentenced him to
prison and post-prison supervision (PPS) on two counts of
attempted sexual abuse in the first degree. See ORS 161.405
(defining attempt and the various attempt crime classi-
fications); ORS 163.427 (defining sexual abuse in the first
degree).1 The trial court sentenced defendant to 51 months
in prison and nine months of PPS on Count 1 and 13 months
in prison and 47 months of PPS on Count 2. The trial court
ordered that the sentence on Count 2 be served concurrently
with the sentence on Count 1. Defendant contends that his
aggregate sentence, including his time previously served on
probation, was unconstitutionally disproportionate under
Article I, section 16, of the Oregon Constitution and cruel
and unusual punishment under the Eighth Amendment to
the United States Constitution. As we briefly explain below,
defendant’s contention is unreviewable because he stipu-
lated to his specific grid block classifications and now seeks
review of that part of his sentence. We therefore affirm.
Defendant pleaded guilty to two counts of attempted
first-degree sexual abuse. At the time of his plea, defendant
and the state stipulated to specific grid block classifications
under the felony sentencing guidelines for defendant’s crimes.
Defendant acknowledged the presumptive prison terms for
those classifications, but the parties agreed that defendant
would instead receive a dispositional departure from the
presumptive prison terms to a 60-month term of supervised
probation on both counts. The parties further agreed that, if
defendant’s probation were revoked, he would receive specific
sentences, which were within the presumptive prison terms
for the agreed upon grid blocks for his crimes. The parties
agreed that defendant would receive a 55-month prison sen-
tence and five months of PPS on Count 1 and a 13-month prison
sentence and 47 months of PPS on Count 2. Both PPS terms
represented the statutory maximum of PPS for a Class C
felony, which is required by statute for defendant’s specific
crimes. See ORS 144.103(1); ORS 161.605(3).
1
Both statutes have been amended since defendant’s convictions, see Or
Laws 2019, ch 635, § 15a and Or Laws 2021, ch 82, § 7, but those amendments are
not relevant to our analysis in this case.
Cite as 320 Or App 273 (2022) 275
Approximately a week before the conclusion of defen-
dant’s 60-month probationary period, defendant violated
probation. At the subsequent show-cause hearing, defen-
dant admitted to two probation violations. The parties
jointly agreed to extend defendant’s probation for 12 months,
which the court did. Later that evening and in the follow-
ing days, defendant violated probation again. Defendant
subsequently admitted to two violations. The court found
that defendant violated probation and sentenced defendant
within the range of the presumptive prison terms for the
grid block classifications to which defendant had previously
stipulated. As noted, the trial court sentenced defendant to
51 months of prison and nine months of PPS on Count 12
and 13 months of prison and 47 months of PPS on Count 2.
Those sentences were imposed to be served concurrently.
Defendant contends that his aggregate sentence,
which he contends includes the time he had already served
in probation, is unconstitutionally disproportionate. ORS
138.105(9) provides that an “appellate court has no author-
ity to review any part of a sentence resulting from a stip-
ulated sentencing agreement between the state and the
defendant.” As the Supreme Court recently explained, that
statute precludes review only when two conditions are met:
“First, the parties must have agreed to a specific sentence,
or to a specific component that the court used to calculate
the sentence—such as the grid block classification. Second,
the bar applies to preclude review only of the part of the
sentence on which the parties agreed.”
State v. Rusen, 369 Or 677, 695-96, 509 P3d 628 (2022). The
bar on reviewability applies only if “ ‘certain specific stipula-
tions, like those in ORS 135.407,3 are made.’ ” Id. at 693 (quot-
ing State v. Kephart, 320 Or 433, 446, 887 P2d 774 (1994)).
2
The trial court reduced the prison time for Count 1 from the stipulated sen-
tence by four months to 51 months and, correspondingly, increased the time of the
agreed PPS term by four months to nine months. Defendant’s prison sentence for
Count 1 was still within the presumptive range for the grid block classification
to which defendant and the state stipulated. Defendant’s PPS term was in turn
increased pursuant to ORS 144.103(1).
3
ORS 135.407, among other things, sets forth different types of stipulated
sentencing agreements, including stipulations to grid block classifications, spe-
cific sentences within the presumptive range provided by the grid block, and sen-
tences outside the presumptive sentence range for the grid block.
276 State v. Wheeler
That is what occurred here. Defendant stipulated with the
state to specific grid block classifications. Defendant now
challenges his total sentence, including the time he served
on probation, as unconstitutional. But defendant stipulated
with the state to that total, including to the potential conse-
quence that he may violate probation within the probation-
ary period and then still have to serve the stipulated prison
and PPS sentence. Because defendant therefore is challeng-
ing a sentence “that result[ed] from a stipulated sentenc-
ing agreement” with the state, ORS 138.105(9), we cannot
review the issue that defendant presents to us. See State v.
Thomas, 312 Or App 527, 492 P3d 87 (2021) (concluding that
the defendant’s challenge to probation revocation sentence
on appeal was not reviewable when specific sentence was
the result of stipulation by the parties).
Affirmed.