State v. Dixon

952 P.2d 571, 152 Or. App. 395, 1998 Ore. App. LEXIS 102

Opinion

PER CURIAM

Defendant appeals from the sentence imposed following his convictions for assault in the first degree with a firearm, ORS 163.185, and robbery in the first degree with a firearm, ORS 164.415. The court sentenced defendant under the dangerous offender statute, ORS 161.725, and also applied ORS 137.635, which mandates determinate sentences for certain felonies. Defendant assigns error to that decision, arguing that the sentence improperly combines the dangerous offender statute and ORS 137.635.

Defendant failed to preserve that argument. He contends, however, that we should review it as error apparent on the face of the record. ORAP 5.45(2). An error is apparent on the face of the record if it involves a point of law that is “not reasonably in dispute.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).

We decline to review defendant’s arguments. The trial court’s error, if any, is not apparent on the face of the record. Defendant’s contention is essentially that ORS 161.725 allows courts to impose indeterminate sentences on dangerous offenders, while ORS 137.635 requires determinate sentences. Therefore, he argues, the statutes cannot operate together, and a court must choose between them. That proposition has not been addressed by our case law and is, at least, debatable. Accordingly, it is not error apparent on the face of the record, and we may not review it. Brown, 310 Or at 355.

Affirmed.