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State v. Johnson

Court of Appeals of Oregon

October 11, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DEREK TYLER JOHNSON, Defendant-Appellant.

          Argued and submitted May 24, 2016.

         Multnomah County Circuit Court 14CR24944 Adrienne C. Nelson, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and DeHoog, Judge, and Ja mes, Judge. [*]

         Case Summary:

         Defendant appeals a judgment of conviction entered following a no contest plea. He assigns error to the trial court's sentencing order directing that he "may not be considered" for certain early release programs enumerated in ORS 137.750(1). Defendant argues that the trial court erred by departing from the tentative plea agreement to which the court had agreed without giving defendant an opportunity to withdraw his plea, as required under ORS 135.432(3).

         Held:

         The trial court erred because it departed from the tentative plea agreement without providing defendant an opportunity to withdraw his plea as required under ORS 135.432(3).

         Reversed and remanded.

         [288 Or.App. 221] DEHOOG, J.

         Defendant appeals a judgment of conviction entered following a no contest plea. He assigns error to the trial court's sentencing order directing that he "may not be considered" for certain early release programs enumerated in ORS 137.750(1). Although defendant raises multiple arguments regarding the order, we address only whether the trial court erred by departing from the tentative plea agreement to which it had agreed without giving defendant an opportunity to withdraw his plea, as required under ORS 135.432(3). Because we agree with defendant that the trial court erroneously departed from the agreement without adhering to the statutory requirements for doing so, we reverse and remand.

         The relevant facts are procedural. After reaching a negotiated settlement, defendant entered a written plea of no contest to four counts of an indictment. Defendant's plea petition included a notation of "936" next to the recommended sentence for Counts 1 and 2.[1] In its colloquy with defendant, the trial court stated, "Counsel ha[ve] spoken to me in chambers. I told them that I would agree to the offer and do the sentencing as everyone had expected." After reiterating, "As I stated earlier, I'm going to follow the recommendation, " the trial court pronounced sentence on each count as follows:

"Count 1, his natural gridblock is a 9B, but this is going to be a downward durational from his gridblock sentence of 61 to 65 months down to 50 months prison, credit for time served, Senate Bill 936 ...

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