State v. Merrill , 311 Or. App. 487 ( 2021 )

487
Argued and submitted December 3, 2019; portion of judgment requiring
defendant to pay $490 “state obligation” vacated, remanded for resentencing,
otherwise affirmed May 19; on respondent’s petition for reconsideration filed
June 10, reconsideration allowed by opinion September 9, 2021
See 314 Or App 460, ___ P3d ___ (2021)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JULIE MARIE MERRILL,
Defendant-Appellant.
Douglas County Circuit Court
16CR15177; A167806
492 P3d 722
Defendant pleaded no contest to a charge of driving under the influence of
intoxicants, ORS 813.010(4), and entered diversion. Upon finding that defendant
did not satisfy the terms of her diversion agreement, the trial court terminated
diversion and entered the judgment of conviction. On appeal, defendant contends
that her conviction must be reversed because, in her view, the trial court errone-
ously terminated diversion and entered judgment on her plea. She also contends
that the court erred in imposing a $490 “state obligation” outside of her presence.
Held: The trial court erred in imposing the financial obligation outside of defen-
dant’s presence. As for defendant’s conviction, under ORS 138.105(5), the Court of
Appeals had “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 contest,”
absent circumstances that were not present here.
Portion of judgment requiring defendant to pay $490 “state obligation”
vacated; remanded for resentencing; otherwise affirmed.
George William Ambrosini, Judge.
John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
488 State v. Merrill
LAGESEN, P. J.
Portion of judgment requiring defendant to pay $490
“state obligation” vacated; remanded for resentencing; other-
wise affirmed.
Cite as 311 Or App 487 (2021) 489
LAGESEN, P. J.
Defendant appeals a judgment of conviction for driv-
ing under the influence of intoxicants in violation of ORS
813.010(4). Defendant pleaded no contest to the charge and
entered diversion, as allowed by ORS 813.200 to 813.270.
Upon finding that defendant did not satisfy the terms of her
diversion agreement, the trial court terminated diversion
and entered the judgment of conviction in accordance with
ORS 813.255. On appeal, defendant contends that her con-
viction must be reversed because, in her view, the trial court
erroneously terminated diversion and entered judgment on
her plea. She also contends that the court erred in impos-
ing a financial obligation outside her presence. But ORS
138.105 states that “[o]n appeal by a defendant,” we “ha[ve]
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 contest” except in circumstances not
present here. ORS 138.105(1), (5). Because the legislature
has precluded review of defendant’s conviction under these
circumstances, we must affirm defendant’s conviction. The
legislature has not, however, barred review of defendant’s
claim regarding the financial obligation, and because, as
the state correctly concedes, the trial court erred, we reverse
the portion of the judgment imposing the challenged finan-
cial obligation.
Reviewability. Our appellate review authority is con-
trolled by statute. That means whether we have authority to
review defendant’s arguments for reversing her convictions
is, for the most part, a question of statutory interpretation.
(Defendant also argues that the state and federal constitu-
tions mean we must have the authority to review her claim,
but we set those contentions aside for the moment.)
When we interpret an Oregon statute, our objective
is to determine what “the enacting legislature most likely
intended.” Tarr v. Multnomah County, 306 Or App 26, 33,
473 P3d 603 (2020), rev den, 367 Or 496 (2021). To do so, we
examine the statutory “text, in context, and, where appro-
priate, legislative history and relevant canons of construc-
tion.” Chase and Chase, 354 Or 776, 780, 323 P3d 266 (2014).
490 State v. Merrill
In so doing, we keep in mind that “[a] statute’s text is the
best indicator of legislative intent,” Oregon Trucking Assns.
v. Dept. of Transportation, 364 Or 210, 220, 432 P3d 1080
(2019), as well as the legislature’s explicit guidance on how
we should read its words: “In the construction of a statute,
the office of the judge is simply to ascertain and declare what
is, in terms or in substance, contained therein, not to insert
what has been omitted, or to omit what has been inserted[.]”
ORS 174.010.
As noted, because this is an appeal by a criminal
defendant, ORS 138.105 is the key statute. It delineates
the scope of our review authority in a criminal defendant’s
appeal: “On appeal by a defendant, the appellate court has
authority to review the judgment or order being appealed,
subject to the provisions of this section.” ORS 138.105(1).
In general, ORS 138.105 permits review of a trial court’s
intermediate decisions made before a conviction: “Except as
otherwise provided in this section, the appellate court has
authority to review any intermediate decision of the trial
court.” ORS 138.105(3). But, as those terms indicate, there
are exceptions to reviewability.
One exception addresses pleas and the convictions
that result from pleas. In that context, ORS 138.105(5) lim-
its the grounds on which we may review a conviction itself,
barring review on all but two grounds:
“The 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
contest, except that:
“(a) The appellate court has authority to review the
trial court’s adverse determination of a pretrial motion
reserved in a conditional plea of guilty or no contest under
ORS 135.335.
“(b) The appellate court has authority to review
whether the trial court erred by not merging determina-
tions of guilt of two or more offenses, unless the entry of
separate convictions results from an agreement between
the state and the defendant.”
ORS 138.105(5).
Cite as 311 Or App 487 (2021) 491
The plain text of the provision would seem to pre-
clude review here. Defendant’s conviction resulted from a
no-contest plea. The words of ORS 138.105 state unequiv-
ocally that we have “no authority to review the validity of
* * * a conviction based on the defendant’s plea of guilty or no
contest,” subject to two exceptions that, it is undisputed, do
not apply here. See State v. Shubert, 310 Or App 378, 379, 484
P3d 406 (2021) (holding that, on appeal of judgment of con-
viction resulting from guilty plea, ORS 138.105(5) precluded
review of issue that had not been reserved in a conditional
guilty plea and did not involve merger). The text makes the
legislature’s intentions clear: Unless otherwise provided, we
have no authority to review on appeal challenges seeking
to invalidate convictions based on pleas. To conclude other-
wise would put us in the position of rewriting the statute.
Specifically, we would have to add to the list of reviewable
issues that the legislature itself wrote. “But rewriting stat-
utes ‘to insert what has been omitted’ falls outside of ‘the
office of the judge.’ ORS 174.010. For that reason, we may not
do it under the cloak of interpretation.” Tarr, 306 Or App at
35.
Despite the plain text of the statute, defendant
urges us to conclude that we have the authority to review
and reverse her conviction, making several arguments in
support of that conclusion. None of them, ultimately, per-
suade us that we may disregard the plain textual command
of ORS 138.105(5).
First, defendant argues that, correctly read, the
statute precludes review of “the validity” of a conviction
based on a plea. Defendant argues that the legislature’s
use of the word “validity,” considered in context, signals
an intention to bar only challenges to the “legal suffi-
ciency” of a conviction. That means, according to defendant,
that
“the statute bars a defendant from disputing the facts that
the defendant admitted during their guilty plea or that the
prosecutor recited pursuant to a no-contest plea. But the
statute does not bar defendants from arguing that, not-
withstanding their factual guilt, some other legal impedi-
ment precludes the entry of a judgment of conviction.”
492 State v. Merrill
That interpretation of the statute is not tenable. For
one, if the legislature had intended to preclude review in
such a limited way, it would have said so explicitly. That
is exactly what the legislature did in the whole of ORS
138.105(5) when it identified with a great deal of specificity
what issues are reviewable and what issues are not review-
able in an appeal by a criminal defendant. It did the same in
ORS 138.115 when it listed the things that can be reviewed
in an appeal by the state. Beyond that, if the legislature
had intended the bar on review to be so limited, the excep-
tions to that bar would, in large part, serve no function.
ORS 138.105(5)(b) would not be necessary because a chal-
lenge to a merger decision is not a challenge to the factual
basis for a plea. ORS 138.105(5)(a) would also be of limited
utility because, under defendant’s reading of the statute,
all grounds for challenging a conviction could be raised
on appeal—whether or not reserved in a conditional plea
agreement—with the exception of the challenge to the fac-
tual basis for the plea.
Second, defendant argues that the enactment his-
tory of Oregon appellate review statutes suggests that, in
enacting ORS 138.105, the legislature intended to return
appellate-review law to its pre-1945 condition, as reflected
in Oregon’s 1864 statute governing appellate review and as
described in State v. Lewis, 113 Or 359, 361-62, 230 P 543(1924), adh’d to on reh’g, 113 Or 359, 232 P 1013 (1925). Under
that state of the law, a criminal defendant could raise legal
challenges to a conviction, something that, in defendant’s
view, would allow her to pursue the challenge to her convic-
tion that she raises in this appeal. To the extent that the
enactment history might suggest what defendant argues it
does, the suggestion is spectral and does not convince us
that adopting defendant’s proposed construction of ORS
138.105(5) would be anything other than rewriting it.
Third, defendant argues that the legislative his-
tory of ORS 138.105(5) demonstrates that the legislature
intended to allow appellate review of challenges like hers.
Even if that were so, it would not change our reading of the
statute: “When the text of a statute is truly capable of hav-
ing only one meaning, no weight can be given to legislative
Cite as 311 Or App 487 (2021) 493
history that suggests—or even confirms—that legislators
intended something different.” State v. Gaines, 346 Or 160,
173, 206 P3d 1042 (2009).
In any event, the legislative history shows that the
legislative intention is exactly the one communicated by the
words the legislature selected. As we have explained previ-
ously, the legislature enacted ORS 138.105 in 2017 “as part
of an overhaul of statutes related to criminal appeals.” State
v. Davis-McCoy, 300 Or App 326, 329, 454 P3d 48 (2019). The
overhaul was the product of an Oregon Law Commission
work group. See Report of the Direct Criminal Appeals
Work Group on SB 896 (2017), Oregon Law Commission,
Apr 6, 2017, 1-3 (Criminal Appeals Report). The work group’s
report to the legislature on the provision that was to become
ORS 138.105(5) explained that it retained existing law pre-
cluding review of challenges to convictions based on pleas,
but allowed for review of two types of challenges:
“Subsection (5)(a) is intended to restate the principle cur-
rently found in ORS 138.050(1)(a) that where the defen-
dant pleaded guilty or no contest to the offense of which
the defendant was convicted, on appeal, the appellate
court may not review the validity of the plea or the convic-
tion, except when the defendant, under ORS 135.335, has
reserved in writing an adverse pre-trial court ruling for
appeal.
“Subsection (5)(b) is new statutory law relating to merger
of determinations of guilt. Under ORS 161.067, under cer-
tain circumstances, if a defendant is found guilty of mul-
tiple counts arising from the same criminal episode, the
trial court may convict the defendant of only one offense,
so-called ‘merger.’ * * * Subsection 5(b) reflects [current]
appellate practice and authorizes appellate court review of
a merger issue. That authority is subject to a limitation,
which is new statutory law, that the appellate court may
not review the merger issue if the trial court convicted the
defendant of multiple offenses pursuant to a plea agree-
ment in which the defendant agreed to plead guilty or no
contest to the convictions in question.”
Criminal Appeals Report at 19-21. The former ORS
138.050(1)(a) (2015), repealed by Or Laws 2017, ch 529, § 26,
reviewability principle restated by ORS 138.105(5) is the one
494 State v. Merrill
announced by the provision’s plain text—“that a defendant
who appeal[ed] pursuant to [former] ORS 138.050 [(2015)
could] not challenge the validity of the conviction to which
he or she pleaded.” State v. Landahl, 254 Or App 46, 59,
292 P3d 646 (2012), rev den, 353 Or 788 (2013). Pertinent
to this case, we concluded in Landahl that that reviewabil-
ity principle barred us from reviewing a contention that the
trial court erred in terminating diversion and entering a
judgment of conviction based on the defendant’s plea. Id. at
48-49, 59.
The documents that defendant cites as legisla-
tive history to the contrary are work group memoranda
contained in the appendices to the work group’s report.
See Criminal Appeals Report at 29.1 They reflect that the
members of the work group were engaged and diligent in
carrying out their charge, well-versed in the relevant case
law, and had debates about what direction to take. The dis-
claimer to the appendices, however, makes it quite clear
that the memoranda do not speak for the work group: “Any
legal analysis or expression of opinion is that of the author
of the memorandum and do[es] not necessarily reflect the
views of the Oregon Law Commission, the Work Group as
a whole, or its members.” Id. Given that the memoranda in
the appendices do not speak to the intentions of the work
group that proposed SB 896 to the legislature—and the fact
that the disclaimer made the legislature aware of that—we
are unable to view them as speaking to the intentions of the
legislature, particularly when, as here, it would require us
to overlook the plain text of the statute and the work group’s
officially stated position.
Finally, defendant argues that, even if ORS
138.105(5) precludes review, the state and federal consti-
tutions require it. As for the Oregon constitution, defen-
dant argues that Article VII (Amended), sections 1 and 3,
of the Oregon Constitution operate to (a) preclude the leg-
islature from limiting our appellate review authority and
(b) give us inherent power to review defendant’s claim that
1
In her brief, defendant cites to Exhibit 37, Senate Judiciary Committee, SB
896, Apr 6, 2017, as the location of those documents. Exhibit 37 is a copy of the
work group’s report, and the documents to which defendant refers are the memo-
randa contained in the appendices. See id.
Cite as 311 Or App 487 (2021) 495
the legislature cannot limit. Those arguments conflict with
longstanding case law recognizing that “the right to appeal
is wholly statutory,” Waybrant v. Bernstein, 294 Or 650, 653,
661 P2d 931 (1983), and that “ ‘[t]he legislature * * * has
the power to define in what cases, and under what circum-
stances, and in what manner, an appeal may be taken to
this court,’ ” State v. Endsley, 214 Or 537, 546, 331 P2d 338(1958) (quoting Portland v. Gaston, 38 Or 533, 535, 63 P 1051(1901)).
Alternatively, defendant argues that any bar on
review violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution under these
circumstances. That clause provides that “No State shall
* * * deny to any person within its jurisdiction the equal pro-
tection of the laws.” Defendant’s theory is that the statu-
tory limit on appellate review in this instance violates that
clause because, “[i]f the state has the right to appeal a rul-
ing in the defendant’s favor, then equal protection requires
that the defendant have a reciprocal right to appeal a ruling
in the state’s favor.”
The problem with that argument is that the Equal
Protection Clause, by its terms, addresses and limits unequal
treatment by the state of similarly situated “person[s] within
its jurisdiction.” It does not address the differential treat-
ment of the state versus individuals (or any others who qual-
ify as persons).2 As the Supreme Court explained in reject-
ing the contention that Article I, section 20, of the Oregon
Constitution, and the Equal Protection Clause, mean that a
criminal defendant must have some power to grant immu-
nity to witnesses when the state has that power, “Article I,
section 20, speaks of equal privileges or immunities between
citizens, not between a citizen and the government, and
defendant points to no contrary interpretation of the equal
protection clause.” State v. Clark, 291 Or 231, 245, 630 P2d
810, cert den, 454 US 1084 (1981). Although defendant points
to a decision by the Iowa Supreme Court concluding that
equal protection requires that “whatever avenue of appellate
2
For example, “It is well established that a corporation is a ‘person’ within
the meaning of the Fourteenth Amendment.” Metropolitan Life Ins. Co. v. Ward,
470 US 869, 881 & n 9, 105 S Ct 1676, 84 L Ed 2d 751 (1985).
496 State v. Merrill
review is deemed appropriate by the legislature, that right
of appeal must be reciprocal,” that court did not appear
to recognize, as the Oregon Supreme Court has, that the
Equal Protection Clause concerns the differential treatment
of individuals, not the relationship between individuals and
the government or power imbalances in that relationship.3
In the absence of a case from the United States Supreme
Court approaching the question differently from the Oregon
Supreme Court, and defendant has not identified one, we
are bound by the Oregon Supreme Court’s interpretation of
the Equal Protection Clause.
In sum, on appeal of a judgment of conviction result-
ing from a plea of guilty or no contest, ORS 138.105(5) pre-
cludes appellate review of defendant’s contention that her
conviction based on her plea should be reversed because of
an alleged error in terminating diversion.4 We reject defen-
dant’s challenge to her conviction for that reason.
State obligation. In her second assignment of error,
defendant challenges the trial court’s imposition of a $490
“state obligation” on the ground that the court erred by
imposing it outside of her presence. That claim of error does
not challenge defendant’s conviction and is reviewable under
ORS 138.105(7), which allows review of sentencing decisions
for compliance with the law. As the state concedes, defen-
dant is correct that the court erred. State v. Jacobs, 200 Or
App 665, 671, 117 P3d 290 (2005). We therefore vacate the
portion of the judgment imposing the “state obligation.”
3
As the court pointed out in rejecting the equal protection challenge in Clark,
inequities in the relationship between the state and the individual and, in par-
ticular, power imbalances in criminal prosecutions, fall within the territory of
the Due Process Clause of the Fourteenth Amendment. Clark, 291 Or at 244-45.
Defendant has not raised any arguments under the Due Process Clause.
4
We note that the absence of appellate review does not necessarily mean
that a defendant claiming wrongful termination of diversion is without recourse.
To the extent that the statute governing termination of diversion imposes man-
datory, not discretionary, obligations on the trial court, it may allow for the pos-
sibility of mandamus relief from a decision to terminate diversion, at least in
some circumstances. See, e.g., ORS 813.255(5) (“If the defendant appears at the
hearing on the order to show cause, the court shall dismiss with prejudice the
charge of driving while under the influence of intoxicants” under the specified
circumstances. (Emphasis added.)). That question is not presented here, and we
express no opinion as to whether mandamus is an available remedy given the
reviewability limitations contained in ORS 135.105(5), or would have been an
available remedy under the circumstances of this case.
Cite as 311 Or App 487 (2021) 497
Portion of judgment requiring defendant to pay
$490 “state obligation” vacated; remanded for resentencing;
otherwise affirmed.