and submitted January 12, 2017.
review from the Court of Appeals CC 080982, CA A154662.
O. Ferry, Deputy Public Defender, Salem, argued the cause and
fled the brief for the petitioner on review. Also on the
brief was Ernest G. Lannet, Chief Defender, Office of Public
Jonathan N. Schildt, Assistant Attorney General, Salem,
argued the cause and fled the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Or. 545] Case Summary: Defendant was convicted of five
counts. The convictions were reversed on appeal and remanded.
On remand, defendant pled guilty to two of the original five
counts. At resentencing, the trial court imposed a new
sentence that was shorter in total than the original
sentence, but included a sentence of 12 months'
imprisonment on a misdemeanor count that had originally
carried a sentence of probation only. Defendant challenged
the new sentence as violating the rule against vindictiveness
set out in State v. Partain, 349 Or. 10, 239 P.3d
232 (2010), and North Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Court of
Appeals affirmed, concluding that defendant's second
sentence did not trigger the "presumption of
vindictiveness." Held: A "presumption of
vindictiveness" applies when a second sentence in
aggregate is longer than the first sentence in aggregate;
therefore, defendant's second, shorter sentence did not
violate the rule against vindictiveness.
decision of the Court of Appeals and the judgment of the
circuit court are affirmed.
Or. 546] BALMER, C. J.
prophylactic rule of State v. Partain. 349 Or. 10,
239 P.3d 232 (2010), protects against vindictiveness in the
resentencing of a criminal offender after a successful
appeal. Partain, in turn, was based on North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969), where the United States Supreme Court
held that due process "requires that vindictiveness
against a defendant for having successfully attacked [a]
first conviction must play no part in the sentence [the
defendant] receives after a new trial." Id. at
725. In this case, the specific issue is how Partain
and Pearce apply if an offender's total sentence
has decreased after resentencing, but a sentence imposed for
one of several individual counts has increased. A separate
and preliminary issue is whether this court and the Court of
Appeals have jurisdiction to hear this case and review
defendant's claims. We conclude that the appellate courts
have jurisdiction to consider defendant's appeal. On the
merits, we conclude that defendant's sentence does not
violate the rule against vindictiveness.
found defendant guilty of five crimes relating to an incident
where defendant provided a minor with alcohol and sexually
abused her. Defendant was convicted and sentenced as follows:
two terms of 75 months' imprisonment for two counts of
sexual abuse in the first degree, ORS 163.427; 20 months'
imprisonment for one count of attempted sodomy in the second
degree, ORS 163.395; 60 months' probation for one count
of providing alcohol to a person under 21 years of age, ORS
471.410(2); and 60 months' probation for one count of
sexual harassment, ORS l66.O65(4)(a). The sentencing court
ordered that the three prison terms run consecutively and
that the probation terms run concurrently. In total,
defendant was sentenced to 170 months' imprisonment and
60 months' probation. Defendant appealed and the Court of
Appeals reversed because of evidentiary error at trial.
State v. Febuary, 253 Or.App. 658, 666, 292 P.3d 604
(2012) (Febuary I).
remand, defendant made a plea bargain with the state.
Defendant pled guilty to one count of sexual abuse [361 Or.
547] in the first degree and one count of providing alcohol
to a person under 21. The state dismissed the remaining three
charges. The state asked for a sentence of 12 months on the
providing alcohol conviction, on which the defendant
originally had received only probation. Defendant argued that
imposing any sentence of imprisonment on the providing
alcohol count was vindictive and would violate his due
process rights under Pearce.
hearing arguments, the court sentenced defendant to 75
months' imprisonment on the sexual abuse count and 12
months' imprisonment on the providing alcohol count, to
run consecutively. As a result, his final sentence was 87
months in prison. The judge stated that he had a
"non-vindictive reason" for changing the sentence
on the providing alcohol count: the nature of defendant's
crime, which he described as "malicious" and
"profoundly offensive." The judge explained that
defendant's crime was not "just a matter of leaving
a jug of whiskey on the coffee table for a child to use while
they're watching television." Rather, defendant
provided alcohol to a minor "to facilitate the
commission of sex abuse in the first degree." The judge
further stated that his previous decision to impose a
sentence of probation for the providing alcohol conviction
occurred in the context of the "overall [sentencing]
scheme, " i.e., defendant's otherwise total
sentence of 170 months' imprisonment. At resentencing,
however, the single other count carried a sentence of 75
months. The judge explained that the shorter total sentence
motivated his decision to change the sentence on the
misdemeanor from probation to 12 months' imprisonment.
again appealed, arguing that the increased sentence on the
providing alcohol count was prohibited under Pearce
and violated his due process rights. Defendant did not assert
that the sentence violated any other statutory or
constitutional limits. The Court of Appeals identified the
issue as "the precise standard for measuring whether a
new sentence triggers the presumption of vindic-tiveness,
" which, it observed, "since the issuance of
Pearce, 'has been the subject of some
confusion.'" State v. Febuary, 274 Or.App.
820, 826, 361 P.3d 661 (2015) (Febuary II) (quoting
United States v. Campbell, 106 F.3d 64, 67 (5th Cir
1997)). The court noted that the federal courts of appeals
have split [361 Or. 548] in their resolution of that issue,
with a majority of circuits applying the "aggregate
approach, " which looks at whether an offender's
total sentence has increased following a successful appeal
and resentencing to apply the rule of Pearce. Id. A
minority of circuits employ the "remainder
aggregate" approach, which applies the rule of
Pearce when "the new sentence on the remaining
counts exceeds the original sentence on those
counts." Id. (quoting Campbell,
106 F.3d at 68).
court then analyzed our decision in Partain and
concluded that, in that case, this court did not consider
"the length or nature of the individual sentences that
had been imposed by the trial court, but only the length of
the total sentences that had been imposed." Id.
at 829. Here, because the length of the total sentence
decreased, the court concluded that a presumption of
vindictiveness did not apply and affirmed the trial court.
Id. at 832.
petitioned for review, and we allowed the petition. After we
allowed the petition, the state filed a motion to determine
jurisdiction, contending that neither the Court of Appeals
nor this court had appellate jurisdiction over the case. We
instructed the parties to address that issue at oral
jurisdictional issue in this case is whether an appellate
court may review a defendant's due process [361 Or. 549]
challenge to a misdemeanor sentence in a case where the
defendant was sentenced on both misdemeanor and felony
convictions, and the defendant pleaded guilty. The state
argues that because defendant is challenging the increased
sentence on his misdemeanor conviction for providing alcohol
to a minor, his appeal is governed by ORS 138.040 and ORS
138.050, and those statutes do not permit an appeal in the
circumstances present here. Responding to defendant's
claim that ORS 138.222 confers jurisdiction here, the state
argues that ORS 138.222 applies to the appeal and review of
felonies only, and does not confer appellate jurisdiction
over defendant's case because defendant seeks review of
his misdemeanor sentence and not his felony sentence.
Defendant asserts that ORS 138.222 confers jurisdiction here
regardless of the particular arguments that he makes on
appeal. We agree with defendant and conclude that ORS 138.222
confers appellate jurisdiction over this case.
begin with basic principles: A criminal defendant does not
have an inherent right to appeal; he or she must appeal
pursuant to some statute authorizing the appeal and granting
the appellate court jurisdiction. State v. Cloutier,
351 Or. 68, 74, 261 P.3d 1234 (2011). Furthermore, the
ability of a party to appeal a case, and of a court to hear
it, is distinct from reviewability. State v.
Montgomery, 294 Or. 417, 420, 657 P.2d 668 (1983).
"Appealability generally is concerned with whether an
appeal can be taken at all. Usually, but not always, appeals
lie only from final judgments and orders. Reviewability
generally involves the consideration of a variety of rulings
and orders made by the court, usually before judgment."
Id. (emphasis omitted). Therefore, we must conclude
both that the judgment is appealable and that the claim
defendant raises is reviewable.
analysis in Cloutier of the statutes that allow for
appeals of criminal convictions is helpful. In that case, we
explained that two statutes governing criminal appeals, ORS
138.040 and ORS 138.050, do not govern appeal and review in
all criminal appeals, even though the text of those
provisions might suggest as much. 351 Or at 90. Rather, those
statutes must be read together with later-enacted ORS
138.222. ORS 138.222(7) "begins by authorizing appeals
of judgments of conviction based on a sentence for felonies
[361 Or. 550] committed on or after November 1, 1989."
Cloutier, 351 Or at 90. ORS 138.222(1) provides,
"Notwithstanding the provisions of ORS 138.040 and
138.050, a sentence imposed for a judgment of conviction
entered for a felony * * * may be reviewed only as provided
by this section." Based on those provisions, we
concluded that ORS 138.222 governed appeal and review of
sentences for felonies and therefore "ORS 138.040 and
ORS 138.050 *** apply only to appeal and review of sentences
for misdemeanor offenses." Cloutier, 351 Or at
Cloutier did not address, and what we must address
in this case, is how appeal and review work in cases such as
this, which include both felony and misdemeanor convictions
and sentences. Appeals are generally taken from "final
judgments and orders, " not sentences.
Montgomery, 294 Or at 420; see also ORS
138.053 (describing appealable orders and judgments in
criminal cases). Here, a single judgment contains convictions
and sentences for both a misdemeanor and a felony, so the
question is whether ORS 138.222 or ORS 138.050 governs the
appeal and review.
provisions of ORS 138.222 provide for appellate jurisdiction
and define the ...