State v. Rodriquez

Court of Appeals of Oregon

State v. Rodriquez

870 P.2d 270, 127 Or. App. 89, 1994 Ore. App. LEXIS 379

CourtCourt of Appeals of Oregon

DecidedMarch 23, 1994

Docket92C-20853; CA A77716

StatusPublished

Cited by1 cases

This text of 870 P.2d 270 (State v. Rodriquez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Rodriquez, 870 P.2d 270, 127 Or. App. 89, 1994 Ore. App. LEXIS 379 (Or. Ct. App. 1994).

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Opinion

De MUNIZ, J.

Defendant appeals the sentence imposed after he pled guilty to burglary in the first degree pursuant to a plea agreement, ORS 164.225. The indictment originally charged defendant with a burglary in crime seriousness category 9. Pursuant to the plea negotiations, and in exchange for defendant’s guilty plea, the state agreed to strike the subcategory allegation that defendant caused or threatened physical injury to the victim. The trial court was informed that the last sentence of the indictment was to be stricken, changing the crime seriousness category from 9 to 8. It replied, “O.K.” However, at sentencing, the court imposed a 36-month prison term as a downward departure, apparently using the presumptive sentence for grid block 9G, which was in the presentence investigation report.

Defendant contends that the court exceeded its authority by not sentencing him according to grid block 8H, because the amended indictment charged him with a category 8 burglary in the first degree. He does not argue that a sentence of 36-months imprisonment was not possible,¹ but, instead, argues that his case is indistinguishable from State v. Owens, 112 Or App 462, 829 P2d 726 (1992). In Owens, the defendant, who had been convicted of arson, was sentenced under category 10 for an offense that presented a serious threat to human life, instead of category 9, as alleged in the indictment. Neither party noticed the error, but we addressed it as an error apparent on the face of the record and accepted the state’s concession that the trial court erred in sentencing the defendant for a category 10 arson.

However, we decided State v. Owens, supra, before the Supreme Court’s decisions in State v. Farmer, 317 Or 220, 856 P2d 623 (1993), and State v. Castrejon, 317 Or 202, 856 P2d 616 (1993). It is clear from those decisions that we do not have unbridled discretion to review unpreserved errors. Rather, we must justify our exercise of discretion. Defendant made no protest to any discrepancy between the agreement and the sentence. We agree with the state that defendant has [92]*92not provided a compelling argument for us to exercise our discretion to review the unpreserved error.²

Affirmed.

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De MUNIZ, J.

Defendant appeals the sentence imposed after he pled guilty to burglary in the first degree pursuant to a plea agreement, ORS 164.225. The indictment originally charged defendant with a burglary in crime seriousness category 9. Pursuant to the plea negotiations, and in exchange for defendant’s guilty plea, the state agreed to strike the subcategory allegation that defendant caused or threatened physical injury to the victim. The trial court was informed that the last sentence of the indictment was to be stricken, changing the crime seriousness category from 9 to 8. It replied, “O.K.” However, at sentencing, the court imposed a 36-month prison term as a downward departure, apparently using the presumptive sentence for grid block 9G, which was in the presentence investigation report.

Defendant contends that the court exceeded its authority by not sentencing him according to grid block 8H, because the amended indictment charged him with a category 8 burglary in the first degree. He does not argue that a sentence of 36-months imprisonment was not possible,¹ but, instead, argues that his case is indistinguishable from State v. Owens, 112 Or App 462, 829 P2d 726 (1992). In Owens, the defendant, who had been convicted of arson, was sentenced under category 10 for an offense that presented a serious threat to human life, instead of category 9, as alleged in the indictment. Neither party noticed the error, but we addressed it as an error apparent on the face of the record and accepted the state’s concession that the trial court erred in sentencing the defendant for a category 10 arson.

However, we decided State v. Owens, supra, before the Supreme Court’s decisions in State v. Farmer, 317 Or 220, 856 P2d 623 (1993), and State v. Castrejon, 317 Or 202, 856 P2d 616 (1993). It is clear from those decisions that we do not have unbridled discretion to review unpreserved errors. Rather, we must justify our exercise of discretion. Defendant made no protest to any discrepancy between the agreement and the sentence. We agree with the state that defendant has [92]*92not provided a compelling argument for us to exercise our discretion to review the unpreserved error.²

Affirmed.

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870 P.2d 270, 127 Or. App. 89, 1994 Ore. App. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriquez-orctapp-1994.

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