State v. Peters , 104 Or. App. 582 ( 1990 )

EDMONDS, J.,

specially concurring.

The majority correctly says that defendant’s appeal is governed by ORS 138.050, which provides that an appeal from a sentence on a plea of guilty or no contest shall only be on the grounds that the sentence exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. However, the majority errs when it holds that defendant does not make a claim that his sentences exceed the maximum allowed by law.

Defendant argues:

“The trial court erred in modifying Defendant’s original sentences, by imposing a minimum term of two-and-one-half years, after the original sentence without a minimum had been executed.

“[0]nce a sentence has been executed by commitment of the Defendant to jail or prison, the Court is without legal power to modify it.

* * * *

“TI e original sentences which the court imposed on July 18,1989, had been executed when [defendant] was delivered to the Oregon State Penitentiary on July 19, 1989. The trial court was without power * * * to modify those sentences on July 25,1989 when it imposed mandatory minimum terms of two and one-half years.”

In State v. Johnson, 96 Or App 641, 773 P2d 812 (1989), we held that an unauthorized part of a sentence that referred the defendant to a mental health department for evaluation and treatment was a sentence that exceeded the maximum allowable by law under ORS 138.050. Likewise, defendant’s claim that the trial court was not authorized to modify his sentences after they had been executed is a claim that the sentences exceeded the maximum allowable by law under ORS 138.050.¹

On the merits, the court signed forms labeled “TEMPORARY TRANSPORT AND CLOSING ORDER[S]” on the day that defendant was orally sentenced. Those documents reflected the maximum sentences imposed, but made no mention of any minimum sentences. Pursuant to those documents, defendant was transported to Oregon State Penitentiary. One week later, defendant’s motion for clarification of the sentences was heard by the court. No formal judgment had yet been entered. At the hearing, the issue was whether, at the time of sentencing, the court had intended by what it had pronounced to impose minimum sentences. After listening to the parties’ arguments, the court said:

“All right, let me make this crystal clear as to what I intended. I intended for [defendant] to serve a minimum sentence of two-and-one-half years.

* * * *

“What my sentence is, which is what I just said clarifying what I earlier said on the 18th of July.

* * * *

“I haven’t signed any judgment. I have signed a preprinted form that floated around this courthouse for years giving directions to the Corrections people on when to pick this man up, what to do with him, but there is no formal judgment order in this case.”

After the hearing, the court signed judgments imposing the minimum sentences.²

The state concedes that, once a sentence has been imposed and execution commenced, the sentencing court is without authority to modify the sentence. State ex rel O’Leary v. Jacobs, 295 Or 632, 669 P2d 1128 (1983); see also ORS 137.010(6). However, it argues that the court’s action did not modify, but only clarified the sentences.

In State v. Bryant, 93 Or App 313, 315, 761 P2d 1361 (1988), we held that a court has authority to correct clerical or scrivener’s errors after a sentence is executed to make the record speak the truth and to conform it to what actually occurred. See also ORS 138.083.³ At the time of the sentencing, the court said:

“So to do that, you need to spend a minimum of two-and-one-half years in the state penitentiary in the drug program and the sex offender program. * * * But what I want you to do is be in a program for two-and-a-half years minimum, and I think I can do that by sentencing you to ten years on each of the drug charges concurrently, and maybe you’ll stay in there two-and-a half years and come out a better person with your treatment program.”

That is not a model of clarity. However, it is sufficiently clear for us to determine the court’s intent. Even if the temporary orders are treated as judgments, in the light of the court’s subsequent finding that they did not accurately reflect the intent of the sentence, the court had authority to correct the errors. Accordingly, I concur in the majority’s result, but not in its reasoning.

1 In State v. Blaney, 101 Or App 273, 790 P2d 549 (1990), the defendant appealed an order revoking a suspended imposition of sentence and imposing sentence. He argued that the trial court lacked authority to enter the order, because the time had expired under former ORS 137.550(4), which required that he be brought before the court within the maximum period for which he might originally have been sentenced. On the basis of former ORS 138.050, we held that the order was not reviewable, because he did not contend that the sentence exceeded the maximum permitted by law; rather, he argued that the trial court lacked authority to impose any sentence. See also State v. Bateman, 95 Or App 456, 771 P2d 314, rev den 308 Or 197 (1989). In contrast, the sentences here are reviewable, because defendant challenges their length and argues that a portion of them is unauthorized. See State v. Johnson, supra.

2 The court signed two judgments on August 25, 1989, and signed the other two judgments on October 4,1989, nunc pro tunc August 25,1989.

3 ORS 138.083, which became effective July 25,1989, provides:

“The sentencing court shall retain authority irrespective of any notice of appeal for 60 days after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors.”