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State v. Bigsby

Court of Appeals of Oregon

December 24, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
DEAGAN EMIL BIGSBY, Defendant-Appellant

Argued and Submitted March 18, 2014

Umatilla County Circuit Court. CF120032. Christopher R. Brauer, Judge.

George W. Kelly argued the cause and filed the brief for appellant.

Michael A. Casper, Deputy Solicitor 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 DeVore, Judge, and Garrett, Judge.

OPINION

Page 94

[267 Or.App. 769] DEVORE, J.

Defendant appeals a judgment of conviction for strangulation constituting domestic violence. ORS 163.187; ORS 132.586. Defendant assigns error to the trial court's determination that the stipulated facts, recounted in his petition for entry of a guilty plea, were sufficient for the court to find that the act constituted domestic violence. The state contends, among other things, that the judgment is not appealable under ORS 138.050(1). After review of an unusual process, we conclude that the judgment is not appealable on the grounds that defendant raises.

On January 26, 2012, defendant was indicted on two counts: felony fourth-degree assault, ORS 163.160(3), and felony strangulation, ORS 163.187(4).[1] As to the second count, the indictment charged that defendant " did unlawfully and knowingly impede the normal breathing and blood circulation of [defendant's wife] by applying pressure on the neck and throat[.]" The indictment added, as an element of the crime pursuant to ORS 132.586, that the act constituted domestic violence as defined by ORS 135.230.[2]

Page 95

On April 16, 2012, the parties negotiated a guilty plea on a lesser charge of misdemeanor strangulation constituting domestic violence.[3] At least on paper, it appeared to be a complete agreement. Defendant agreed to plead guilty to the second count, strangulation constituting domestic [267 Or.App. 770] violence, but with the indictment modified to charge the offense as a Class A misdemeanor. The state dismissed the assault count. On a multi-purpose printed form, entitled " Petition to Plead Guilty / No Contest / Conditional Guilty Plea," defendant indicated:

" 8. I want to plead: X Guilty
Count 2 : misdemeanor Strangulation * * * X Misdemeanor"

Later, the form specified the acts involved with a description:

" 17. X I PLEAD 'GUILTY' because in Umatilla County, Oregon, I did ...

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