Argued and Submitted: April 12, 2013.
Lane County Circuit Court. 200121093. Eveleen Henry, Judge.
Jesse Wm. Barton argued the cause and filed the brief for appellant.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
[262 Or.App. 52] SERCOMBE, J.
Defendant appeals a corrected judgment entered by the trial court pursuant to ORS 138.083. He contends that the court erred in denying part of the relief requested in his motion to modify the judgment. We conclude that the trial court did not abuse its discretion in denying the relief in question and, therefore, affirm.
In 2002, following a jury trial, the trial court entered a judgment convicting defendant of one count of first-degree assault and two counts of first-degree robbery. On the assault conviction, the trial court imposed an upward departure sentence of 180 months and, with respect to the robbery convictions, the court imposed sentences of 90 months under ORS 137.700. This court affirmed the judgment without opinion. State v. Lewallen, 189 Or.App. 492, 76 P.3d 690 (2003).
In 2010, defendant filed a motion to modify the judgment pursuant to ORS 137.754 and ORS 138.083. Defendant requested that the court (1) modify the judgment to expressly state that he was eligible for sentence-modification programs, (2) merge the two robbery convictions into a single conviction, and (3) modify the departure sentence for the assault--which was based on findings made by the court--by either imposing the presumptive sentence or empanelling a sentencing jury if the state " s[ought] reinstatement of the aggravated departure" sentence. See generally Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (trial court's imposition of an upward departure sentence on the basis of findings by the sentencing court violated the defendant's right to trial by jury). The [262 Or.App. 53] state did not oppose amending the judgment to state that defendant was eligible for sentence-modification programs and to merge the robbery convictions. However, it contended that defendant's request regarding the departure sentence should be denied.
The court held a hearing on the motion in February 2011. At the end of the hearing,
the court stated that, " because the State is not objecting," it would grant two of defendant's requests: the judgment would " be modified to reflect unambiguously that [defendant was] eligible for sentence modifications programs" and, as to the robbery convictions, the court stated that it would " modify the judgment to merge those two, so [defendant did not] end up with two separate convictions." As to defendant's assertion regarding the departure sentence, the court expressed that it was " pretty skeptical." However, it took the matter under advisement to " spend a little more time with [it after having] heard the arguments of the attorneys." The court later issued an order granting the motion as stated at the hearing, but denying the motion to " vacate the imposition of a departure sentence based on aggravating factors" on the assault charge. Accordingly, the court entered a modified judgment that merged the robbery convictions and stated that " defendant is eligible for sentence modification programs, pursuant to ORS 137.754 after the service of 90 months." (Emphasis and boldface omitted.) However, the judgment retained the provision from the earlier judgment that, based on findings made by the court, defendant would serve a departure sentence of 180 months on the assault conviction.
Defendant appeals from that judgment. On appeal, he asserts that the trial court erred in denying " that part of his motion to modify that sought correction of the aggravated-departure sentence on [the assault charge], which the court based on non-juried factors." The state first responds that this " court lacks authority to review defendant's claim" of error. (Boldface omitted.) In particular, the state contends that the only potential basis for review in this case is ORS 138.222(4)(a), which provides that the appellate court may review a claim that " [t]he sentencing court failed to comply with the requirements of law in imposing or failing to impose a sentence." According to the state, however, [262 Or.App. 54] that provision does not authorize review, because denial of a motion pursuant to ORS 138.083 " cannot be characterized as a failure to comply with the requirements of law in imposing or failing to impose a sentence, because this is not a sentencing and a trial court is not required to do anything." (Emphasis omitted.) However, we concluded otherwise in State v. Harding, 222 Or.App. 415, 420, 193 ...