State v. Clevenger

667 P.2d 9, 64 Or. App. 183

• Court: Court of Appeals of Oregon
• Decided: October 25, 1983
• Docket: 81-2006, 81-2389; CA A23835, CA A23836
• Status: Published

Opinion

PER CURIAM.

Defendant appeals his convictions of theft in the first degree and assault in the second degree, following pleas entered as part of a plea bargain that resulted in the dismissal of several other charges. He assigns error to the trial court’s denying his motion to withdraw his plea of no contest to the assault charge and his plea of guilty to the theft charge, contending that the factual basis for the no contest plea ceased to exist as of the time of sentencing and that the guilty plea was rendered involuntary because of certain misrepresentations made by a police officer.

This court is not authorized to consider on direct appeal defendant’s claim that the trial court abused its discretion by denying his motion to withdraw his pleas. ORS 138.050; State v. Lugo, 48 Or App 919, 618 P2d 986 (1980); State v. Slopak, 3 Or App 532, 475 P2d 421 (1970). Only matters relating to the sentence may be considered unless, as a matter of law, there has been no valid guilty plea under ORS 135.380(2) 1 and, therefore, no conviction. State v. Reichert, 39 Or App 905, 593 P2d 1298 (1979). If defendant has a remedy, it is under the Post Conviction Act.

Appeal dismissed.

1 ORS 135.380(2) provides:

“A defendant with counsel may plead guilty or no contest on the day of arraignment or any time thereafter. A defendant without counsel shall not be allowed to plead guilty or no contest to a felony on the day of arraignment.”