State v. Van Valkenberg

498 P.2d 797 (1972)

STATE of Oregon, Respondent,
v.
Donald VAN VALKENBERG, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted June 26, 1972. Decided July 3, 1972.

George V. Des Brisay, Portland, argued the cause for appellant. With him on the brief were Franklin, Bennett, Des Brisay & Jolles, Portland.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

FORT, Judge.

Defendant pleaded guilty to the crime of illegal sale of a dangerous drug. Former ORS 475.100. He was sentenced to a maximum term of five years' imprisonment. Defendant's sole contention on appeal is that the court was "guilty of abuse of discretion in not permitting the defendant * * * to withdraw his plea of guilty prior to sentencing."

In a number of recent cases we have pointed out that ORS 138.050 limits the scope of direct appeals from a judgment of conviction based upon a guilty plea to matters pertaining to the sentence. State v. Slopak, 3 Or. App. 532, 475 P.2d 421 (1970); State v. Wickenheiser, 3 Or. App. 509, 475 P.2d 422 (1970); State v. Gardner, 3 Or. App. 486, 475 P.2d 92 (1970); State v. Brudos, 3 Or. App. 239, 471 P.2d 861, Sup.Ct. review denied (1970); State v. Middleton, 2 Or. App. 70, 465 P.2d 913 (1970); State v. Kabachenko, 2 Or. App. 202, 465 P.2d 891, Sup.Ct. review denied (1970). Thus we cannot consider defendant's contention that the trial court abused its discretion by not permitting him to withdraw his guilty plea.

It follows that defendant's remedy, if he has any, may be pursued only under the Post-Conviction Relief Act, ORS 138.510, et seq.

Affirmed.