State v. Jones

Court of Appeals of Oregon

State v. Jones

879 P.2d 881, 129 Or. App. 413, 1994 Ore. App. LEXIS 1187

Court of Appeals of Oregon·Decided August 10, 1994·No. 90C-20365; CA A79797·Published·Cited by 47 cases

Opinions

[415] DEITS, P. J.

Defendant challenges the trial court’s imposition of 60 months of post-prison supervision on his conviction of rape in the first degree. ORS 163.375. We remand for entry of a corrected judgment.

At sentencing, the court determined that defendant’s conviction for first degree rape fell into gridblock 10-A, and it imposed an upward departure sentence of 240 months.¹ The prosecutor then asked, “This would be 60 months post-prison supervision?” and the court responded, “Yes, it will.” Defendant did not object, and the final judgment reflected the court’s ruling. Defendant argues, and the state concedes, that the trial court should have imposed a 36-month term of post-prison supervision, pursuant to OAR 253-05-002(2)(c).² Although defendant did not preserve the error below, he requests that we exercise our discretion to review the error.

Under ORAP 5.45(2), we may not review an unpreserved error unless it is an ‘ ‘error [] of law apparent on the face of the record.” If we elect to exercise our discretion to consider such an error, we must articulate our reasons for doing so. Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991).

We conclude that the error is apparent on the face of the record. An illegal sentence, such as the one imposed here, is an error of law. State v. Cook, 108 Or App 576, 582, 816 P2d 697 (1991), rev den 312 Or 588 (1992). The error is on the face of the record because “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” See State v. Brown, [416] 310 Or 347, 355, 800 P2d 259 (1990). Finally, the error is apparent. An “apparent” error is one in which the legal point is obvious and not reasonably in dispute. See State v. Farmer, 317 Or 220, 224 n 4, 856 P2d 623 (1993). Particularly in view of the state’s concession of error on this legal point, we believe the error here is not reasonably in dispute.

The court’s order of 60 months of post-prison supervision is an error of law apparent on the face of the record that we may, in our discretion, choose to consider. To guide our decision, we consider a number of factors, some of which are set forth in Ailes v. Portland Meadows, Inc., supra, 312 Or at 382 n 6:

“[I]n deciding whether to exercise its discretion to consider an error of law apparent of the face of the record, among the factors that a court may consider are: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error. Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.” (Citations omitted.)

We are not bound by the state’s concession of error in our disposition of the case, nor can the concession confer upon us the authority to reach an otherwise unreviewable claim of error, see State v. Cavota, 121 Or App 598, 856 P2d 322 (1993) (state’s concession of error immaterial where Court of Appeals lacked authority to review a sentence resulting from plea negotiations); State v. Woods, 121 Or App 661, 856 P2d 321 (1993) (same). Nevertheless, it is appropriate for us to consider the Ailes factors in view of that concession. First, there are no “competing interests of the parties” when one of the parties concedes an error. The state’s concession also satisfies the policies behind the general rule of preservation and raising of error in that the adversary is not denied the opportunity to present its position to the court. Finally, the state’s concession of error impacts our consideration of the ends of justice in the particular case. When the official representative of the state indicates that the state has no [417] desire to enforce an illegal sentence, the ends of justice will not be satisfied by a refusal to correct what everyone involved acknowledges to be error. Considering the above, as well as the facts that, here, the error significantly implicates defendant’s liberty interest and correction of the conceded error may be accomplished with a minimum of judicial time and resources, we are persuaded to exercise our discretion to review the unpreserved error.³ We remand for entry of a corrected judgment deleting the 60-month term of post-prison supervision and imposing a 36-month term.

Conviction affirmed; remanded for entry of corrected judgment.

Footnotes

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[415] DEITS, P. J.

Defendant challenges the trial court’s imposition of 60 months of post-prison supervision on his conviction of rape in the first degree. ORS 163.375. We remand for entry of a corrected judgment.

At sentencing, the court determined that defendant’s conviction for first degree rape fell into gridblock 10-A, and it imposed an upward departure sentence of 240 months.¹ The prosecutor then asked, “This would be 60 months post-prison supervision?” and the court responded, “Yes, it will.” Defendant did not object, and the final judgment reflected the court’s ruling. Defendant argues, and the state concedes, that the trial court should have imposed a 36-month term of post-prison supervision, pursuant to OAR 253-05-002(2)(c).² Although defendant did not preserve the error below, he requests that we exercise our discretion to review the error.

Under ORAP 5.45(2), we may not review an unpreserved error unless it is an ‘ ‘error [] of law apparent on the face of the record.” If we elect to exercise our discretion to consider such an error, we must articulate our reasons for doing so. Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991).

We conclude that the error is apparent on the face of the record. An illegal sentence, such as the one imposed here, is an error of law. State v. Cook, 108 Or App 576, 582, 816 P2d 697 (1991), rev den 312 Or 588 (1992). The error is on the face of the record because “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” See State v. Brown, [416] 310 Or 347, 355, 800 P2d 259 (1990). Finally, the error is apparent. An “apparent” error is one in which the legal point is obvious and not reasonably in dispute. See State v. Farmer, 317 Or 220, 224 n 4, 856 P2d 623 (1993). Particularly in view of the state’s concession of error on this legal point, we believe the error here is not reasonably in dispute.

The court’s order of 60 months of post-prison supervision is an error of law apparent on the face of the record that we may, in our discretion, choose to consider. To guide our decision, we consider a number of factors, some of which are set forth in Ailes v. Portland Meadows, Inc., supra, 312 Or at 382 n 6:

“[I]n deciding whether to exercise its discretion to consider an error of law apparent of the face of the record, among the factors that a court may consider are: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error. Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.” (Citations omitted.)

We are not bound by the state’s concession of error in our disposition of the case, nor can the concession confer upon us the authority to reach an otherwise unreviewable claim of error, see State v. Cavota, 121 Or App 598, 856 P2d 322 (1993) (state’s concession of error immaterial where Court of Appeals lacked authority to review a sentence resulting from plea negotiations); State v. Woods, 121 Or App 661, 856 P2d 321 (1993) (same). Nevertheless, it is appropriate for us to consider the Ailes factors in view of that concession. First, there are no “competing interests of the parties” when one of the parties concedes an error. The state’s concession also satisfies the policies behind the general rule of preservation and raising of error in that the adversary is not denied the opportunity to present its position to the court. Finally, the state’s concession of error impacts our consideration of the ends of justice in the particular case. When the official representative of the state indicates that the state has no [417] desire to enforce an illegal sentence, the ends of justice will not be satisfied by a refusal to correct what everyone involved acknowledges to be error. Considering the above, as well as the facts that, here, the error significantly implicates defendant’s liberty interest and correction of the conceded error may be accomplished with a minimum of judicial time and resources, we are persuaded to exercise our discretion to review the unpreserved error.³ We remand for entry of a corrected judgment deleting the 60-month term of post-prison supervision and imposing a 36-month term.

Conviction affirmed; remanded for entry of corrected judgment.

Footnotes

State v. Jones, 879 P.2d 881, 129 Or. App. 413, 1994 Ore. App. LEXIS 1187 (Or. Ct. App. 1994).

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