May 17, 2012, Argued and Submitted; May 8, 2014,
Resubmitted En Banc; September 1, 2011, On Respondent's Motion to Dismiss Filed;
September 15, 2011, Appellant's Response Filed
Lane County Circuit Court. 200004228. Maurice K. Merten, Judge.
Bear Wilner-Nugent argued the cause and filed the briefs for appellant.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General.
Before Haselton, Chief Judge, and Armstrong, Wollheim, Ortega, Sercombe, Nakamoto, Egan, DeVore, Tookey, and Garrett, Judges, and Schuman, Senior Judge.
[265 Or.App. 11]
This is a criminal appeal in which defendant pleaded guilty in 2000 to five counts of crimes committed against his children before the passage of Ballot Measure 11 1994) but then fled Oregon before sentencing. In 2009, defendant was sentenced after his apprehension in California. Defendant now appeals the judgment of conviction for one count of sodomy in the first degree, ORS 163.405, and four counts of sexual abuse the first degree, ORS 163.427.
Defendant assigns error to the sentencing court's denial of his motions to postpone sentencing (his first assignment of error), to withdraw his guilty plea (his second assignment), and to enforce the original plea agreement reached in 2000 (his third assignment). Defendant's sentence, which includes a 190-month prison term that the state recommended, differs significantly from what the state had agreed to recommend to the court as part of the 2000 plea agreement. The state has moved to dismiss the entire appeal on two grounds: first, that we lack jurisdiction
to adjudicate the assignments of error under either ORS 138.050(1) or ORS 138.222(7) and, alternatively, that we should apply the " former fugitive doctrine" because of defendant's lengthy escape from justice. The state also contends that, to the extent we deny its motion to dismiss, defendant's assignments of error are barred due to the restrictions on reviewability set forth in ORS 138.222 and that, if we reach any of the assignments, we should reject them on their merits.
For the reasons below, we decline to dismiss defendant's appeal under the former-fugitive doctrine and instead conclude (1) that defendant's first assignment of error is appealable under ORS 138.222(7) but nonetheless unreviewable; (2) that we lack jurisdiction to adjudicate defendant's second assignment of error; and (3) that defendant's third assignment of error, although appealable and reviewable, fails on its merits.
The relevant facts are procedural. On October 30, 2000, defendant pleaded guilty to four counts of first-degree [265 Or.App. 12] sexual abuse and one count of first-degree sodomy, after his attorney confirmed with the court that it would be bound by a negotiated plea and sentence. All of the crimes were alleged to have occurred in 1991 or later. The prosecutor described on the record the sentence that defendant would receive as follows: he would receive a dispositional departure to a 20-year term of probation and serve six months in the county jail, with alternatives to reduce the time to be served allowed; pay a compensatory fine to the victims, his daughters; complete sex-offender treatment as required by a probation officer; and have standard probation conditions for sex offenders, such as registration as a sex offender. The court's minutes of the proceedings for the change of plea also reflect those terms and that " Judge Hodges is bound to negotiations."
The sentencing was then set for November before a second judge. That judge declined to sentence defendant because, after hearing the statements of one of the victims and of defendant's ex-wife, he disagreed that the court should be bound by the negotiated sentence. He referred the matter back to the first judge.
A week later, the parties again appeared before the first judge, who had learned what had occurred at the sentencing hearing. That judge informed defendant that the court would no longer be bound to give him the sentence called for by the parties' agreement, stating that the negotiated sentence was no longer " a guaranteed result" but that it " could well be that after everything shakes out, that would be what happens." The judge also told defendant that, in light of that change, defendant could consider whether he wanted to withdraw his plea. The sentencing was then reset to occur on a date in December, before any judge, to enable the victims to attend.
On December 6, 2000, the parties appeared before a third judge for sentencing. The prosecutor explained that she had misunderstood that the victims supported the negotiated sentence, and she understood that they were willing to testify at a trial. The prosecutor further explained that there would be no " bound agreement" in light of the fact that two sentencing judges had refused to be bound and that a [265 Or.App. 13] presentence investigation would have to be done. Defendant then elected to go forward with his plea. The court ordered a presentence investigation report, with sentencing to be rescheduled a date in February 2001 to allow time for the report to be prepared. On the same day that defendant made his election, the prosecutor wrote a memorandum to the presentence investigation report writer stating that the " state has made no commitments for a recommendation" on sentencing and that the case could be considered as one with an " open sentence."
The court issued an order setting defendant's sentencing for February 13, 2001, but defendant absconded and failed to appear. The court issued a bench warrant for his arrest. More than eight years later, defendant was arrested in California and returned to Oregon. Defendant was brought before the court on October 8, 2009. Defendant's attorney did not appear with him. The court
set defendant's sentencing to occur less than a week later, on October 14, 2009.
The same attorney who represented defendant during the proceedings in 2000 represented defendant again for his sentencing in 2009. Defendant moved to postpone the sentencing and filed two other motions before sentencing, one to withdraw his guilty plea and one to enforce the plea agreement. His motion to withdraw his plea was premised on an argument that the state had breached the plea agreement. He contended in the motion to enforce the plea agreement that, if he could not withdraw his guilty plea, the state was obliged to continue to recommend the agreed-upon sentence from October 2000 at his sentencing. The state, represented by a different prosecutor than in 2000, opposed all three motions.
The parties then appeared at the sentencing hearing on October 14, which occurred before the same judge who had ordered the presentence investigation report in 2000. During argument on the three motions, the prosecutor acknowledged that the state had agreed to adhere to the negotiated sentencing recommendation at the February 2001 sentencing. However, the prosecutor explained that, because defendant had absconded, the state " no longer [265 Or.App. 14] feels bound by those negotiations." The state recommended that defendant receive consecutive sentences on four of the counts totaling 190 months in prison and a concurrent sentence on the remaining count. The sentencing court denied defendant's motions, followed the state's recommendation, and sentenced defendant, among other things, to serve 190 months in prison.
Defendant now appeals, asserting three assignments of error. In his first assignment, defendant asserts that the sentencing court abused its discretion by denying his motion to set over the sentencing so that his attorney could adequately prepare. In his second assignment, he argues that the state breached the plea agreement when the prosecutor told the presentence investigation report writer in 2000 that there was no sentencing recommendation, which in his view entitled him to withdraw his plea. If that is not so, defendant argues in his third assignment of error, then the state had to perform its obligation under the 2000 plea agreement; in other words, the prosecutor was required to recommend to the sentencing court, and the court should have considered defendant eligible for the much different, agreed-upon probationary sentence.
In addition to filing its responsive brief, the state has moved to dismiss the appeal based on lack of jurisdiction and the former-fugitive doctrine. The Appellate Commissioner ordered the parties to further brief the jurisdictional question in light of State v. Cloutier, 351 Or. 68, 261 P.3d 1234 (2011); concluded that the interests served by the former-fugitive doctrine might not be implicated by particular assignments of error; and deferred the motion to the merits panel. The state's motion to dismiss the appeal is now before us.
II. MOTION TO DISMISS
In its motion, the state first contends that we lack jurisdiction over the appeal given both the applicable jurisdictional limitations when a defendant appeals after pleading guilty, as set forth in ORS 138.050(1), and the nature of defendant's assignments of error. Under ORS 138.050(1), [265 Or.App. 15] except as provided in ORS 135.335, which allows for conditional pleas,
" a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:
" (a) Exceeds the maximum allowable by ...