State v. Crocker

95 Or. App. 260, 1989 Ore. App. LEXIS 202

• Court: Court of Appeals of Oregon
• Decided: February 22, 1989
• Docket: 87-CR-1724, 87-CR-1725; CA A46952
• Status: Published

Opinions

BUTTLER, J.

Defendant pleaded guilty to rape in the second degree; the trial court suspended imposition of sentence and placed him on probation for five years, subject to conditions. On appeal, defendant contends that the condition that he not be in a private home in which there are children under the age of 18 is overbroad.

The state contends that, because defendant pleaded guilty, this court may consider only whether the sentence exceeds the maximum allowed by law or is unconstitutionally cruel and unusual, ORS 138.050,¹ and that, because defendant makes neither of those contentions, there is nothing for us to consider. Given the recent decision in State v. Carmickle, 307 Or 1, 762 P2d 290 (1988), decided after this case was submitted, the more fundamental question is whether we may consider any part of the judgment or whether we may consider defendant’s contention, unrestricted by the limitations imposed by ORS 138.050. In Carmickle, the question was whether the defendant could refuse probation. In holding that he could do so, the court held that an order imposing probation is not a sentence, although the judgment suspending imposition of sentence and placing him on probation was an appealable judgment under ORS 138.040.² Because Carmickle had not pleaded guilty or no contest, ORS 138.050 did not come into play. Carmickle arose under ORS 138.040, which provides that the appellate court, in reviewing any sentence, is limited to considering whether it “exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual.” (Emphasis supplied.) However, the court in Carmickle was not so limited it held, because the order on probation was not a sentence, although it was appealable as a judgment on a conviction.

In this case, we are governed by ORS 138.050, not ORS 138.040, because defendant pleaded guilty; the specific statute controls over the general one. ORS 174.020.³ ORS 138.050 permits an appeal “from a judgment of conviction where it imposes a sentence that exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual.” (Emphasis supplied.) Here, we have a judgment of conviction that ORS 138.040 says is appealable, at least by a defendant who has not pleaded guilty or no contest, but which Carmickle holds does not impose a sentence. Because it does not impose a sentence, much less one that is contended to exceed the maximum allowable by law or to be unconstitutionally cruel and unusual, it appears that, under ORS 138.050, one who pleads guilty and is granted probation may not appeal from the judgment of conviction⁴ if imposition of sentence is suspended.⁵

Although we concede that the result appears to present a “most ingenious paradox”⁶ and one that the legislature may not have intended, we believe that the holding in Carmickle requires it.⁷

The dissent would decide that, given the result we have reached, ORS 138.050 violates Article I, section 20. Although we agree that the question arises, because it has not been raised, argued or briefed, we believe that we should defer deciding it until it is properly presented.

Appeal dismissed.

1 ORS 138.050 provides:

“A defendant who has pleaded guilty or no contest may take an appeal from a judgment on conviction where it imposes a sentence that exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. If the judgment of conviction is in the circuit court or the district court, the appeal shall be taken to the Court of Appeals; if it is in the justice of the peace court or municipal court or city recorder’s court, the appeal shall be taken to the district court for the county in which such court is located or if there is no district court for the county, to the circuit court for the county. On such appeal, the appellate court shall only consider the question whether a sentence has been imposed that exceeds the maximum sentence allowable by the law or is unconstitutionally cruel and unusual. If in the judgment of the appellate court the punishment imposed does exceed the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment which should be administered.”

2 ORS 138.040 provides:

“The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(3). Upon an appeal, or cross-appeal, any decision of the court in an intermediate order or proceeding may be reviewed, and any sentence of the court may be reviewed as to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. A judgment suspending imposition or execution of sentence or placing a defendant on probation shall be deemed a judgment on a conviction and shall not be subject to appeal after expiration of the time specified in ORS 138.071 except as may be provided in ORS 138.050 and 138.510 to 138.680. If in the judgment of the appellate court the punishment imposed by the sentence appealed from exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered.”

3 ORS 174.020 provides:

“In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”

4 State v. Martin, 282 Or 583, 580 P2d 536 (1978), held that a judgment of conviction like the one involved here was appealable. However, the court in Carmickle pointed out that Martin is no longer “in point,” because it was decided under the 1975 version of ORS 138.040 and ORS 138.050, which have been materially amended since then. 307 Or at 7 n 2. When Martin was decided, ORS 138.050 provided that one who has pleaded guilty may take an appeal “from a judgment on conviction where it imposes an excessive fine or excessive, cruel or unusual punishment.” Under that provision, the judgment here would be appealable, notwithstanding Carmickle, because the provision does not, as the present statute does, refer to a “judgment on conviction where it imposes a sentence * * (Emphasis supplied.)

5 Arguably, if a trial court imposes a term of incarceration and suspends execution of that sentence for a specified period of time during which the defendant is placed on probation, there would be a sentence within the meaning of ORS 138.050.

6 Gilbert & Sullivan, “The Pirates of Penzance.”

7 As the court pointed out in Carmickle:

“A criminal defendant has no constitutional right to appeal. Gairson v. Gladden, 247 Or 88, 90, 425 P2d 761 (1967). Appellate jurisdiction is limited and springs from statute. State v. Curran, 291 Or 119, 122, 628 P2d 1198 (1981). ‘An appeal is not a matter of absolute right, but a statutory privilege.’ State v. Endsley, 214 Or 537, 539, 331 P2d 338 (1958).” 307 Or at 6.

The dissent appears to interpret Carmickle as holding that a defendant who has pleaded not guilty and has been placed on probation may challenge the conditions of probation on appeal. Carmickle does not so hold and, given its holding that the defendant may reject probation, it is an open question whether he may challenge the conditions if he does not reject probation.