Submitted June 23, 2014
12CR0900. Coos County Circuit Court. Michael J. Gillespie, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[268 Or.App. 294] NAKAMOTO, J.
In this criminal case, defendant appeals a judgment of conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010, assigning error to the trial court's imposition of a lifetime suspension of her driving privileges. Defendant argues that the permanent suspension of her driving privileges violates her substantive due process right to travel under the United States Constitution. The state argues that we must dismiss defendant's appeal because her claim is not appealable under ORS 138.050. As explained below, we agree with the state that we lack jurisdiction over defendant's challenge to her sentence and, accordingly, we dismiss her appeal.
The facts are mainly procedural and are undisputed. Defendant pleaded guilty to, and was convicted of misdemeanor DUII. Defendant had two prior DUII convictions in 1985. Because defendant had a total of three DUII convictions, the court was required under ORS 813.400(2) and ORS 809.235(1)(b), to impose a lifetime suspension of defendant's driving privileges. Defendant objected, arguing that a lifetime suspension of driving privileges based on the two, older DUII convictions violated her substantive due process rights. The court overruled the objection and imposed the suspension of defendant's license. Thereafter, defendant filed this appeal challenging the constitutionality of the lifetime suspension.
The state moved to dismiss defendant's appeal on the ground that her constitutional claim was not appealable [268 Or.App. 295] under ORS 138.050 given the Oregon Supreme Court's interpretation of that statute in State v. Cloutier, 351 Or. 68, 261 P.3d 1234 (2011). The Appellate Commissioner agreed with the state and ordered dismissal of the appeal. Defendant then petitioned for reconsideration, arguing that Cloutier did not address whether a defendant who has pleaded guilty to a misdemeanor may appeal a sentence under ORS 138.050(1) (a) on the ground that the statute under which the defendant was sentenced was unconstitutional on substantive due process grounds. On reconsideration, the Appellate Commissioner vacated the order of dismissal and referred the issue to the panel considering defendant's appeal on the merits. The state's motion to dismiss the appeal is now before us.
Criminal defendants do not have an inherent right to appellate court review. Rather, " the right to appeal is wholly statutory and an appellant must establish that the decision from which the appeal is taken is appealable under some statutory provision." Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). As in this case, " [w]hen the appeal is from a judgment based on a plea to a misdemeanor, jurisdiction lies, if at all, under ORS 138.050(1)." State v. Davis, 265 Or.App. 425, 432, 335 P.3d 322 (2014).
Under ORS 138.050(1),
" except as otherwise provided in ORS 135.335, [concerning 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 ...