Chapter 138

138.010

NOTES OF DECISIONS

Except as provided in ORS 157.010, the use of the writ of review in criminal cases has been abolished by this section. Doran v. State, 270 Or 758, 529 P2d 928 (1974)

Parking violation is “criminal action.” Shelton v. Allen, 77 Or App 177, 711 P2d 222 (1985)

Court acted beyond statutory authority granted by this section when court revoked defendant’s probation for same violation on which court had based earlier extension of probation. State v. Smith, 98 Or App 543, 779 P2d 1097 (1989)

138.012

NOTES OF DECISIONS

Transcript of testimony properly admitted in prior trial and sentencing proceeding is admissible in new penalty-phase proceeding without regard to issue of relevancy or balancing. State v. Guzek, 342 Or 345, 153 P3d 101 (2007)

138.020

NOTES OF DECISIONS

Appellate court hearing of an appeal by defendant made after verdict but before sentence is inappropriate because the defendant can appeal only from a “judgment” or “judge on a conviction.” State v. McFarland, 10 Or App 90, 497 P2d 1283 (1972), Sup Ct review denied

Where appeal may be taken as matter of statutory right, appellate court retains discretion to dismiss appeal of fugitive from justice. State v. Sterner, 124 Or App 439, 862 P2d 1321 (1993), Sup Ct review denied

Court may not automatically dismiss appeal of former fugitive but may dismiss where former fugitive status of defendant interferes with appellate process. State v. Lundahl, 130 Or App 385, 882 P2d 644 (1994); State v. Ristick, 204 Or App 626, 131 P3d 762 (2006)

Where aggravated murder case is remanded for new penalty-phase proceeding, ruling by court prior to start of proceeding is ruling made prior to trial for state appeal purposes. State ex rel Carlile v. Frost, 326 Or 607, 956 P2d 202 (1998)

138.040

NOTES OF DECISIONS

In general

Where the appeal is from a judgment in a criminal writ of review proceeding in the circuit court resulting in a judgment of conviction, the proper avenue of appeal is to the Court of Appeals. Doran v. State, 270 Or 758, 529 P2d 928 (1974)

Trial court lacked authority to stay period of probation pending outcome of appeal. State ex rel Dillavou v. Foster, 273 Or 319, 541 P2d 811 (1975); State v. Popp, 118 Or App 508, 848 P2d 134 (1993)

Appeal from suspended sentence is governed by this section, and thus appellate review was precluded where defendant, who had pleaded guilty and received suspended sentence, failed to file his appeal pursuant to ORS 138.050 (alleging excessive sentence) within 30-day period required by ORS 138.071. State v. Martinez, 35 Or App 381, 581 P2d 955 (1978), Sup Ct review denied

Imposition of 10 p.m. curfew as condition of probation on 20-year-old woman was not excessive and was reasonably related to effective probation. State v. Sprague, 52 Or App 1063, 629 P2d 1326 (1981), Sup Ct review denied

Where defendant was convicted in stipulated facts trial rather than after plea of guilty or no contest, ORS 138.050 was inapplicable and sentence was reviewable on direct appeal under this section and ORS 138.053. Schantz v. Maass, 114 Or App 167, 834 P2d 508 (1992)

Criminal defendant does not waive objection to admission of evidence by presenting testimony or other evidence to rebut evidence to which defendant objected. State v. McGinnis, 335 Or 243, 64 P3d 1123 (2003)

Where state appeals under ORS 138.060 and defendant cross-appeals, appellate court ordinarily will exercise discretion to review cross-appeal only if assignment of error in cross-appeal is inextricably linked to state assignment of error on appeal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

When appeal lies

Public Defender lacks standing to prosecute appeal of conviction for driving under influence of intoxicants obtained in absentia and without defendant’s authorization. State v. Lyon, 36 Or App 255, 584 P2d 345 (1978)

Probation condition alleged by defendant to be unreasonable was reviewable under this section. State v. Fisher, 32 Or App 465, 574 P2d 354 (1978), Sup Ct review denied

Probation order is judgment on conviction for purposes of ORS 138.050, and is thus appealable. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Court of Appeals has no jurisdiction over appeal from circuit court affirmance of municipal court convictions, where constitutionality of ordinance or charter provision is not at issue. City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980)

Since orders denying transcripts are not intermediate orders under this section and since this section does not provide for review of subsequent orders of trial courts, appeals of these matters cannot be taken pursuant to this section, but rather must be brought under [former] ORS 19.010. State v. Montgomery, 58 Or App 630, 650 P2d 111 (1982), as modified by 294 Or 417, 657 P2d 668 (1983); State v. Sullens, 314 Or 436, 839 P2d 708 (1992)

ORS 138.071 (4) does not allow delayed appeal from juvenile court disposition order placing juvenile under jurisdiction of juvenile court, because such order is not “judgment of conviction.” State ex rel Juv. Dept. v. Hardy, 93 Or App 584, 763 P2d 406 (1988), Sup Ct review denied

Order of probation is appealable as judgment on conviction, and appeal or review is not limited to whether it exceeds maximum allowable by law or is unconstitutionally cruel and unusual as in case of appeal of sentence. State v. Carmickle, 307 Or 1, 764 P2d 290 (1988)

Under this section and ORS 138.050 criminal defendant may appeal from order which revokes his probation and reinstates his previously suspended sentence. State v. Altman, 97 Or App 462, 777 P2d 969 (1989)

Where defendant’s probation was continued and no sentence was imposed this section, not ORS 138.050, controlled scope of review and court erred in continuing defendants’ probation over defendant’s request that he be sentenced. State v. Benway, 97 Or App 685, 776 P2d 880 (1989)

Where defendant challenged indictment on ground that corrected indictment was returned, challenge is not moot because indictment is valid and may be basis of prosecution notwithstanding existence of separate indictment. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

Order imposing condition of probation after plea of no contest is reviewable under this section. State v. Donovan, 307 Or 461, 770 P2d 581 (1989); State v. Crocker, 96 Or App 111, 771 P2d 1026 (1989)

Where final document in criminal case, whether denominated “judgment” or something else, states on its face that trial court intends to impose restitution at future date, that document is not “judgment” from which appeal may be taken under this section because it does not yet contain complete sentence. State v. Bonner, 307 Or 598, 771 P2d 272 (1989)

Order denying motion for new trial based on newly discovered evidence or juror misconduct is reviewable on appeal under this statute. State v. Sullens, 314 Or 436, 839 P2d 708 (1992)

LAW REVIEW CITATIONS: 51 OLR 367, 652 (1972)

138.050

NOTES OF DECISIONS

This section limits the scope of direct appeals from a judgment of conviction based upon a guilty plea to matters pertaining to the sentence. State v. VanValkenberg, 10 Or App 51, 498 P2d 767 (1972)

In order for a reviewing court to exercise its powers to review an alleged excessive sentence, the court must have before it some evidence as to the basis of the sentencing court’s action. State v. Foltz, 14 Or App 482, 513 P2d 1208 (1973), Sup Ct review denied

Issue relating to duration of sentence is reviewable whether or not issue was raised on direct appeal or in post-conviction proceeding. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

An appeal from imposition of special costs was properly considered. State v. Olson, 22 Or App 344, 539 P2d 166 (1975)

The Court of Appeal’s jurisdiction over an appeal following a guilty plea is limited to matters specified in this section. State v. Waggoner, 25 Or App 403, 549 P2d 685 (1976)

Order denying withdrawal of a guilty plea is not appealable. State v. Burchett, 26 Or App 637, 553 P2d 1074 (1976)

Probation condition alleged by defendant to be unreasonable was reviewable. State v. Fisher, 32 Or App 465, 574 P2d 354 (1978), Sup Ct review denied

Intervention by Court of Appeals in sentencing decisions will arise only if trial court fails to comply with statutory duty to consider presentence report, fails to state on record reasons for sentence imposed, or sentence imposed is “clearly mistaken” or “clear abuse of discretion.” State v. Dinkel, 34 Or App 375, 579 P2d 245 (1978), Sup Ct review denied

There is no requirement that trial court support sentence imposed by explicit reference to presentence report. State v. Rogers, 34 Or App 523, 579 P2d 258 (1978)

Appeal from suspended sentence is also governed by ORS 138.040, and thus appellate review was precluded where defendant, who had pleaded guilty and received suspended sentence, failed to file appeal made under this section within period required by ORS 138.040. State v. Martinez, 35 Or App 381, 581 P2d 955 (1978), Sup Ct review denied

Record was insufficient to support court order which, as condition of probation, prohibited defendant from associating with ex-convicts including her husband. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Probation order is appealable. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Issue of whether trial court abused discretion by refusing to permit defendant to withdraw guilty plea cannot be raised on direct appeal. State v. Allen, 68 Or App 5, 680 P2d 997 (1984), Sup Ct review denied

Probationary condition that defendant no longer live in Troutdale was broader than necessary to achieve purpose of probation. State v. Jacobs, 71 Or App 560, 692 P2d 1387 (1984)

Defendant convicted on plea of guilty or no contest has no right to direct appeal of any matter relating to conviction other than sentence; overruling to extent of inconsistency, State v. Burnett, 228 Or 556, 365 P2d 1060 (1961), State v. Bloor, 229 Or 49, 365 P2d 103, 365 P2d 1075 (1961), State v. Gidley, 231 Or 89, 371 P2d 992 (1962), State v. Cornelius, 249 Or 454, 438 P2d 1020 (1968) and State v. Evans, 290 Or 707, 625 P2d 1300 (1981). State v. Clevenger, 297 Or 234, 683 P2d 1360 (1984)

Where defendant has had alcohol and controlled substance convictions and was convicted in present case for unprovoked assault, probation condition that he abstain from consuming alcohol is not “cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense.” State v. Douglas, 82 Or App 222, 728 P2d 548 (1986)

When defendant pleaded guilty and was sentenced under dangerous offender statute and trial court denied defendant opportunity to examine psychiatrist who filed written report for sentencing purposes, this section did not authorize appeal. State v. Loyer, 303 Or 612, 740 P2d 177 (1987)

Where court suspended sentence and imposed five-years probation for Class A misdemeanor and after probation was revoked, sentenced defendant to five-years imprisonment, review allowed by this section determined maximum penalty was one-year imprisonment and sentence imposed exceeded sentence allowable by law. State of Oregon v. Seibert, 95 Or App 742, 770 P2d 613 (1989)

Portion of sentence referring defendant to institution for mental health evaluation and treatment was without statutory authority and thus exceeded maximum sentence allowable by law. State v. Johnson, 96 Or App 641, 773 P2d 812 (1989)

Where defendant pleaded guilty, order of probation is appealable although evidence exists that conditions restricting alcohol consumption are reasonably related to protection of public or defendant’s reformation. State v. Dirksen, 97 Or App 272, 775 P2d 909 (1989)

Where defendant pleaded guilty and court imposed sentence, contentions that court’s findings are insufficient to support imposition of dangerous offender sanctions or consecutive sentences do not challenge length or constitutionality of sentences and are, therefore, outside scope of review. State v. Gehring, 97 Or App 325, 775 P2d 918 (1989), Sup Ct review denied

Under this section and ORS 138.040 criminal defendant may appeal from order which revokes his probation and reinstates his previously suspended sentence. State v. Altman, 97 Or App 462, 777 P2d 969 (1989)

Where defendant pleaded guilty and court imposed sentence, review is controlled by this section and defendant’s contention that court did not adequately assess his desire to proceed without counsel during probation revocation is beyond scope of review. State v. Humphries, 97 Or App 682, 776 P2d 1326 (1989), Sup Ct review denied

After defendant pleaded guilty, his contention that he should have been allowed to cross-examine psychologist who submitted report for imposition of dangerous offender sanction was beyond scope of review. State v. Phillips, 99 Or App 375, 781 P2d 1272 (1989)

Appellate review of order imposing sentence on defendant who has pleaded guilty is limited to “the sentence and whether it is longer than specified for the crime or is unconstitutionally cruel and unusual.” State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

ORS 138.222 precludes review of sentence imposed under plea agreement and, where defendant was aware of and did not dispute sentencing classification of crime to which he pleaded guilty, classification of crime seriousness was not reviewable. State v. Stevens, 111 Or App 258, 826 P2d 12 (1992)

Where restitution was ordered without following proper procedure, restitution order was reviewable as disposition exceeding maximum allowed by law. State v. Anderson, 113 Or App 416, 833 P2d 321 (1992)

Where defendant was convicted in stipulated facts trial rather than after plea of guilty or no contest, this section was inapplicable and sentence was reviewable on direct appeal under ORS 138.040 and 138.053. Schantz v. Maass, 114 Or App 167, 834 P2d 508 (1992)

After defendant pleads no contest and is sentenced, he cannot attempt to circumvent statute and seek review by arguing that his conduct amounted to different crime. State v. Woodard, 121 Or App 483, 855 P2d 1139 (1993), Sup Ct review denied

On reconsideration defendant’s claim of error in court’s denial of motion to rescind remand order and return case to juvenile court was not related to sentencing and therefore was beyond scope of review. State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), Sup Ct review denied

Provision in stipulated sentencing agreement that reserved defendant’s right to appeal lawfulness of sentence could not confer review authority. State v. Upton, 132 Or App 579, 889 P2d 376 (1995), Sup Ct review denied

Subject matter jurisdiction of trial court cannot be raised on appeal. State v. Belzons, 140 Or App 198, 915 P2d 428 (1996), Sup Ct review denied

Remand following post-conviction relief does not permit resentencing on all convictions. State v. Coburn, 146 Or App 653, 934 P2d 579 (1997)

Where defendant who pleaded guilty or no contest fails to make required colorable showing regarding disposition, proper action is for appellate court to dismiss appeal for lack of jurisdiction. State v. Stubbs, 193 Or App 595, 91 P3d 774 (2004)

To be appealable under this section, “disposition” must either be unconstitutionally cruel and unusual or exceed maximum allowable by law because not imposed consistently with statutory requirements. State v. Stubbs, 193 Or App 595, 91 P3d 774 (2004)

Appeal is not available under this section from municipal court conviction for municipal code violation. City of Lowell v. Wilson, 197 Or App 291, 105 P3d 856 (2005), Sup Ct review denied

“Disposition” includes, but is not limited to, sentence. State v. Nave, 214 Or App 324, 164 P3d 1219 (2007), Sup Ct review denied

Claim that sentence is not proportionate to offense qualifies as assertion that disposition is unconstitutionally cruel and unusual. State v. Baker, 346 Or 1, 202 P3d 174 (2009)

COMPLETED CITATIONS: State v. Wolberg, 5 Or App 295, 483 P2d 104 (1971), Sup Ct review denied, cert. denied, 404 US 1015 (1972)

138.053

NOTES OF DECISIONS

Where defendant was convicted in stipulated facts trial rather than after plea of guilty or no contest, ORS 138.050 was inapplicable and sentence was reviewable on direct appeal under ORS 138.040 and this section. Schantz v. Maass, 114 Or App 167, 834 P2d 508 (1992)

Conditional discharge under ORS 475.245 does not occur after judgment and therefore is not appealable. State v. Spencer/Fenner, 130 Or App 158, 881 P2d 154 (1994)

Where program completion is alternative to entry of conviction, order terminating program participation is not reviewable. State v. Balukovic, 153 Or App 253, 956 P2d 250 (1998)

138.057

NOTES OF DECISIONS

Appeal under this section is available only for violation of state statute, not for violation of municipal charter or ordinance. City of Lowell v. Wilson, 197 Or App 291, 105 P3d 856 (2005), Sup Ct review denied

138.060

NOTES OF DECISIONS

Failure by state to appeal an order made prior to trial dismissing indictment renders the matter res judicata where the state, rather than appeal the order, attempts to proceed under new indictment charging same crime. State v. Brownlee, 13 Or App 480, 510 P2d 1340 (1973)

Where state appealed from district court’s suppression of evidence but failed to appeal under this section from circuit court’s affirmance of the order of suppression, state may not raise suppression issue in later de novo trial in circuit court. State v. Krey, 18 Or App 22, 523 P2d 600 (1974)

In determining whether the state may appeal an order “suppressing” evidence, the significant factor is whether the order has been made as the result of some pretrial action by the parties. State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

State may not appeal evidentiary rulings in probation revocation proceedings. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976); State v. Hindman, 125 Or App 434, 866 P2d 481 (1993)

Order is “suppressing evidence” if order results from pretrial action by party objecting to evidence. State v. Koennecke, 274 Or 169, 545 P2d 127 (1976)

Order sustaining demurrer to accusatory instrument without dismissing complaint is appealable. State v. Thomas, 34 Or App 187, 578 P2d 452 (1978)

Where court dismissed information and ordered new trial after jury was unable to reach verdict, dismissal order was “made prior to trial” for purpose of this section. State v. Smith, 35 Or App 511, 582 P2d 26 (1978)

Uniform traffic citation and complaint was “accusatory instrument” within meaning of this section. State v. Riggs, 35 Or App 571, 582 P2d 457 (1978), Sup Ct review denied

Evidence was properly suppressed where affidavit in support of warrant stated that confidential reliable informant was on premises and observed marijuana within past 96 hours, but did not state how much or in whose possession marijuana was seen or prior history of suspects. State v. Kittredge/Anderson, 36 Or App 603, 585 P2d 423 (1978)

Evidence was improperly suppressed where affidavit in support of warrant stated that confidential reliable informant had visited residence weekly over 7 to 8 month period, had seen various kinds of drugs on each occasion, and that informant’s last visit was 3 to 4 weeks ago. State v. Black/Black, 36 Or App 613, 585 P2d 44 (1978), Sup Ct review denied

Circuit court disposition of appeal of municipal court order in arrest of judgment was order of trial court which could be appealed by the city. City of Toledo v. Richards, 40 Or App 71, 549 P2d 422 (1979), Sup Ct review denied

State can appeal from order suppressing evidence, but has no right of appeal from order allowing discovery against it. State v. Langlois, 287 Or 503, 600 P2d 872 (1979); State ex rel Glode v. Branford, 149 Or App 562, 945 P2d 1058 (1997), Sup Ct review denied

Where trial court denied state’s motion for pretrial hearing under ORS 135.037, and trial court dismissed case after state refused to proceed, scope of appeal under this section did not include order preceding dismissal order. State v. Caruso, 289 Or 315, 613 P2d 752 (1980)

Order, resulting from pretrial action of parties, suppressing letter of certification of intoxilyzer machine was appealable by state. State v. Pfortmiller, 53 Or App 394, 632 P2d 459 (1981), Sup Ct review denied

Where state could have raised issue of admissibility of statements for rebuttal purposes at first omnibus hearing, but did not, appeal of suppression of testimony at second hearing did not have to be considered despite fact second order was appealable under this section. State v. Strachan, 60 Or App 513, 654 P2d 1151 (1982)

“Prior to trial” means prior to point in criminal proceeding where jeopardy attaches. State v. Hattersley, 294 Or 592, 660 P2d 674 (1983); State v. Sanchez, 136 Or App 329, 901 P2d 978 (1995), Sup Ct review denied; State v. Summers, 151 Or App 301, 948 P2d 754 (1997)

An order sustaining demurrer to one count of multi-count accusatory instrument is appealable order. State v. Parker, 299 Or 534, 704 P2d 1144 (1985)

Where defendant was tried in municipal court for driving under influence of intoxicants in violation of state statute and municipal court granted defendant’s motion to suppress evidence, circuit court had jurisdiction over plaintiff’s appeal from municipal court and Court of Appeals had jurisdiction over appeal to that court. City of Lake Oswego v. Mylander, 301 Or 178, 721 P2d 433 (1986)

Where trial judge erroneously granted new trial in criminal case, mandamus not available as remedy. State ex rel Schrunk v. Keys, 97 Or App 65, 776 P2d 861 (1989)

Where state had right to appeal evidentiary ruling of admissibility of documents relating to alcohol breath testing equipment, court erred in dismissing complaint prior to appeal. State v. Mueller, 96 Or App 185, 772 P2d 433 (1989)

Election by state to appeal granting of demurrer does not bar later reindictment. State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), modified 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

Motion challenging indictment must be made either by pretrial motion to set aside indictment or, in specialized circumstances, by post-trial motion in arrest of judgment. State ex rel Schrunk v. Bonebrake, 318 Or 312, 865 P2d 1289 (1994)

List of orders appealable by state in criminal cases is exclusive. State v. Rietveld, 151 Or App 318, 948 P2d 758 (1997)

“Judgment of conviction” does not include order in probation violation proceeding. State v. Roy, 198 Or App 209, 108 P3d 88 (2005)

Supreme Court has exclusive jurisdiction over all state appeals from pretrial orders dismissing indictment for murder or aggravated murder, including orders dismissing indictment with prejudice and entering judgment of acquittal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

COMPLETED CITATIONS: State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied; State v. Elliott, 6 Or App 249, 486 P2d 1296 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 7 WLJ 464 (1971)

138.071

NOTES OF DECISIONS

Thirty-day filing requirement of this section was applicable where state, lacking statutory right to appeal, brought mandamus action challenging judge’s granting of new trial. State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355 (1978)

Judgments and orders in criminal cases become effective for purposes of commencing appeals period when entered in journal by county clerk. State v. Panichello, 71 Or App 519, 692 P2d 720 (1984)

Delayed appeal from juvenile court disposition order placing juvenile under jurisdiction of juvenile court is not available because such order is not “judgment of conviction.” State ex rel Juv. Dept. v. Hardy, 93 Or App 584, 763 P2d 406 (1988), Sup Ct review denied

Where court granted motion for new trial after date motion was conclusively deemed denied under ORS 136.535, deadline for state to file appeal from new trial order was measured from date motion was deemed denied. State v. Lesley, 173 Or App 232, 21 P3d 190 (2001)

COMPLETED CITATIONS: Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 652, 653, 655 (1972)

138.081

NOTES OF DECISIONS

Specific listing of parties to be notified in criminal appeal controls over general requirement to notify persons whose rights may be affected by decision on appeal. State v. Pelham, 136 Or App 336, 901 P2d 972 (1995), Sup Ct review denied

Appeal notice procedure applicable to criminal actions does not apply to traffic infraction appeals. City of Pendleton v. Elk, 137 Or App 513, 905 P2d 237 (1995)

LAW REVIEW CITATIONS: 51 OLR 652, 653, 655 (1972)

138.083

NOTES OF DECISIONS

Defendant’s failure to seek correction of error on sentencing order does not bar defendant from seeking appellate review. State v. Rood, 129 Or App 422, 879 P2d 886 (1994). But see State v. Graham, 143 Or App 85, 923 P2d 664 (1996).

For judgments entered after September 8, 1995, proper avenue of redress for all unpreserved errors in terms of post-prison supervision is petition to trial court, not appeal. State v. Graham, 143 Or App 85, 923 P2d 664 (1996)

Order denying motion to correct judgment is not appealable. State v. Hart, 188 Or App 650, 72 P3d 671 (2003), Sup Ct review denied

Trial court has authority to correct sentencing error notwithstanding that sentence has been executed. State v. Easton, 204 Or App 1, 126 P3d 1256 (2006), Sup Ct review denied; State v. Harding, 222 Or App 415, 193 P3d 1055 (2008), on reconsideration225 Or App 386, 202 P3d 181 (2009)

Where defendant fails to preserve issue at sentencing, but raises issue in motion for corrected judgment, defendant may raise issue on appeal from corrected judgment. State v. Harding, 222 Or App 415, 193 P3d 1055 (2008), on reconsideration 225 Or App 386, 202 P3d 181 (2009)

Modification that acts only to make otherwise legally incorrect sentence comply with mandatory sentencing law is administrative change that does not involve right of participation by defendant. State v. Rickard, 225 Or App 488, 201 P3d 927 (2009)

138.110

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

138.135

NOTES OF DECISIONS

Trial court has authority and responsibility for deciding whether defendant should be released pending appeal. State v. Wimber, 108 Or App 1, 814 P2d 169 (1991)

ATTY. GEN. OPINIONS: Corrections Division Field Services authority to supervise person placed on probation during pendency of appeal, (1983) Vol 44, p 16

138.145

ATTY. GEN. OPINIONS: Corrections Division Field Services authority to supervise person placed on probation during pendency of appeal, (1983) Vol 44, p 16

138.185

NOTES OF DECISIONS

The trial court retains jurisdiction to correct the transcript even until the disposition of the cause by the appellate court. State v. Wertheimer, 6 Or App 507, 488 P2d 1199 (1971)

Under this section, together with [former] ORS 19.029 and [former] ORS 19.078, imposing duty on court reporter to produce transcript within 30 days, reporter lacked authority to determine for herself that free-lance depositions had priority over timely filing of transcripts. In the Matter of Virginia Hanks, 44 Or App 521, 606 P2d 1151 (1980), aff’d 290 Or 451, 623 P2d 623 (1981)

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

138.220

NOTES OF DECISIONS

When appellant fails to provide a record essential to review matters claimed to be error, the reviewing court will not speculate as to what the record might have shown. State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied

In order for the ruling to be subject to review, the aggrieved party must: (1) Properly present his claim of error to the trial court for immediate resolution or cure; and (2) see to it that the ruling has been properly preserved, designated as part of the record, and presented to the appellate court. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

A reporter should be available for transcription in the event that any portion of a criminal proceeding serves as the basis of an assignment of error, but the conduct of any portion thereof off the record does not require reversal. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

Denial of a motion for a new trial based upon irregularities at trial does not of itself preserve an issue for appellate review. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

Where no proper exception is taken to the giving of instructions in the trial court, the objection cannot be raised on appeal in the absence of exceptional circumstances. State v. Johnson/Mitchell, 17 Or App 242, 521 P2d 355 (1974), Sup Ct review denied

COMPLETED CITATIONS: State v. Regan, 5 Or App 491, 484 P2d 861 (1971), Sup Ct review denied

138.222

NOTES OF DECISIONS

Imposition of departure sentence is discretionary determination by sentencing court and if defendant does not agree that court’s reasons are substantial and compelling, defendant must indicate basis of objection or there is no error to review. State v. Orsi/Gauthier, 108 Or App 176, 813 P2d 82 (1991); State v. Cook, 108 Or App 576, 816 P2d 697 (1991), Sup Ct review denied

Defendant may not appeal sentence within presumptive guidelines under ORS 138.222 (4)(a) because ORS 138.222 (2)(a) expressly prohibits review within presumptive sentence and ORS 138.222 (4)(a) allows review of claim that presumptive sentence rests on legal error. State v. Cook, 108 Or App 576, 816 P2d 697 (1991), Sup Ct review denied

Claim of error that number of concurrent sentences has been miscounted is claim relating to classification of prior conviction for criminal history purposes and is within scope of review. State v. Munro, 109 Or App 188, 818 P2d 971 (1991), Sup Ct review denied

Task of sentencing court in classifying out-of-state conviction for criminal history purposes under Sentencing Guidelines is limited to determining whether elements of offense under laws of other state constitute felony or Class A misdemeanor under current Oregon law. State v. Tapp, 110 Or App 1, 821 P2d 1098 (1991); State v. Lee, 110 Or App 42, 821 P2d 1100 (1991)

Although defendant pleaded guilty to drug charges and was sentenced according to guidelines classification for scheme and network convictions and, after plea, scheme and network provisions were held unconstitutional, to allow review of defendant’s sentence would nullify prohibition of this section against review of sentence imposed pursuant to plea agreement. State v. Rathbone I, 110 Or App 414, 823 P2d 430 (1991), Sup Ct review denied

Claim that sentencing court erred in ranking conviction for racketeering because racketeering is unranked crime for sentencing purposes was reviewable. State v. Rathbone II, 110 Or App 419, 823 P2d 432 (1991), Sup Ct review denied

Review is of sentencing court’s factual basis and reasons for departure from presumptive sentence and review explanation of why circumstances are so exceptional that imposition of presumptive sentence would not accomplish purposes of guidelines. State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992)

This section precludes review of sentence imposed under plea agreement and, where defendant was aware of and did not dispute sentencing classification of crime to which he pleaded guilty, classification of crime seriousness was not reviewable. State v. Stevens, 111 Or App 258, 826 P2d 12 (1992); State v. Becker, 120 Or App 230, 851 P2d 1150 (1993)

Appellate court has authority to review sentence of probation without departure to determine whether sentencing court complied with requirements of law. State v. Schuh/Hookie, 112 Or App 362, 829 P2d 1040 (1992), Sup Ct review denied

Appeal court has no authority to review length of departure sentence if it is within sentencing guidelines. State v. Barber, 113 Or App 603, 832 P2d 51 (1992); State v. Martin, 320 Or 448, 887 P2d 782 (1994)

Review limitation applies to sentences imposed on remanded juveniles. State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), Sup Ct review denied

Boilerplate language in petition to enter guilty plea stating that district attorney agreed to recommend particular sentencing guideline gridblock constituted plea agreement that precluded review. State v. Hallinan, 125 Or App 316, 865 P2d 449 (1993)

Stipulated sentence resulting from plea agreement between defendant and state is not reviewable. State v. Adams, 315 Or 359, 847 P2d 397 (1993)

Provisions permitting appellate review of departure sentences and sentencing errors are exceptions only to catch-all provision allowing review of sentencing issues, not to situations where appellate review is expressly prohibited. State v. Adams, 315 Or 359, 847 P2d 397 (1993)

Express prohibitions against appellate review are not limited to prohibiting review of sentence length. State v. Adams, 315 Or 359, 847 P2d 397 (1993)

Where plea agreement imposing dispositional departure of probation recited incorrect grid block, court was precluded from reviewing sentence imposed in accordance with correct grid block following probation revocation. State v. Guyton, 126 Or App 143, 868 P2d 1335 (1994), Sup Ct review denied. But see State v. Hoffmeister, 164 Or App 192, 990 P2d 910 (1999)

1993 amendment relating to review of some plea-bargained sentences does not apply to sentences imposed before effective date of amendment. State v. George, 127 Or App 581, 873 P2d 468 (1994), Sup Ct review denied

Order of restitution imposed prior to 1993 amendment as part of negotiated plea was not reviewable. State v. Nelson, 127 Or App 741, 874 P2d 108 (1994)

“Stipulated sentencing agreement” means stipulated sentences of type illustrated under ORS 135.407. State v. Kephart, 320 Or 433, 887 P2d 774 (1994)

Provision in stipulated sentencing agreement that reserved defendant’s right to appeal sentence did not make ORS 135.407-type agreement subject to review. State v. Upton, 132 Or App 579, 889 P2d 376 (1995), Sup Ct review denied

Challenge to requirement that sentences within guidelines be served consecutively was reviewable as claim that court failed to comply with law in imposing sentence. State v. Stokes, 133 Or App 355, 891 P2d 13 (1995)

Where plea agreement did not include specific assent to departure sentence or imposition of consecutive sentences, those parts of sentence were reviewable. State v. Reeves, 134 Or App 38, 894 P2d 1170 (1995), Sup Ct review denied

Portion of sentence not included in sentencing agreement stipulated between state and defendant is subject to review. State v. Davis, 134 Or App 310, 895 P2d 1374 (1995)

Nonreviewable nature of determination under ORS 137.079 whether criminal history exists does not preclude review of whether consideration of criminal history during sentencing was proper. State v. Leslie, 134 Or App 366, 895 P2d 342 (1995), Sup Ct review denied

Restitution order is not part of presumptive sentence and therefore not precluded from review. State v. Marquez, 139 Or App 379, 912 P2d 390 (1996), Sup Ct review denied

Objective circumstances considered as crime-sentencing factors do not constitute elements of underlying charge and are determined independently of defendant’s culpable mental state. State v. Casavan, 139 Or App 544, 912 P2d 946 (1996), Sup Ct review denied

Post-prison supervision is not part of presumptive sentence and therefore court may review propriety of supervision period imposed. State v. Owen, 142 Or App 314, 921 P2d 424 (1996)

Court may review application of statute requiring imposition of determinate sentence. State v. Brown, 143 Or App 263, 923 P2d 1236 (1996)

“Presumptive sentence” means period of incarceration specified in sentencing guidelines gridblock and does not mean determinate sentence. State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997)

1997 amendment allowing court to correct sentencing error by review rather than by mandamus did not retroactively expand court’s subject matter jurisdiction and therefore does not violate ex post facto or separation of powers provision of Oregon Constitution. State v. Jackman, 155 Or App 358, 963 P2d 170 (1998), Sup Ct review denied; State v. Bowman, 160 Or App 8, 980 P2d 164 (1999), Sup Ct review denied

Imposition of sentence resulting from stipulated sentencing agreement does not preclude appeal alleging that court failed to impose minimum sentence prescribed by ORS 137.700. State v. Albrich, 157 Or App 64, 969 P2d 1033 (1998), Sup Ct review denied

Failure to comply with statutory procedure for certifying interpreter is not error “in imposing or failing to impose sentence.” State v. Sanchez, 160 Or App 182, 981 P2d 361 (1999), Sup Ct review denied

Where sentence imposed by court under incorrect gridblock is presumptive probation, court may not subsequently impose probation revocation sanction under correct gridblock. State v. Hoffmeister, 164 Or App 192, 990 P2d 910 (1999)

Provision that entire case is to be remanded if sentencing court commits error requiring resentencing applies to all reviewable sentencing errors, not just errors involving lack of evidence in record or lack of justification for departure. State v. Edson, 329 Or 127, 985 P2d 1253 (1999)

Reviewing court is not precluded from reviewing procedural errors that precede actual imposition of sentence so long as review is of claim that “sentencing court failed to comply with requirements of law.” State v. Lavitsky, 171 Or App 506, 17 P3d 495 (2000), Sup Ct review denied

Where Court of Appeals determines that trial court erred regarding merging of sentences, Court of Appeals will treat error as requiring remand of entire case to trial court for resentencing. State v. Rodvelt, 187 Or App 128, 66 P3d 577 (2003), Sup Ct review denied; State v. Sanders, 189 Or App 107, 74 P3d 1105 (2003), Sup Ct review denied

Limitation on right of defendant to appeal from proceeding in which sentence was entered subsequent to certain events limits scope of appellate review, but does not provide source of appellate jurisdiction over proceeding. State v. Roy, 198 Or App 209, 108 P3d 88 (2005)

Where trial court imposes authorized sentence after determining defendant does not qualify for different authorized sentence, determination is reviewable for failure to comply with requirements of law in not imposing sentence. State v. Arnold, 214 Or App 201, 164 P3d 334 (2007)

Aspect of sentence that affects offender’s eligibility for subsequent modification of sentence is reviewable for failure to comply with requirements of law in imposing sentence. State v. Casiano, 214 Or App 509, 166 P3d 599 (2007)

Where entire case is before court on remand, authority of court to resentence on “any conviction” in case allows imposition of greater sentence for conviction that was part of same judicial proceeding but was not appealed. State v. Muyingo, 225 Or App 156, 200 P3d 601 (2009), on reconsideration 226 Or App 327, 203 P3d 365 (2009), Sup Ct review denied

Where case is remanded for resentencing, new sentence may exceed original sentence if increase is not punishment for pursuing appeal. Olson v. Howard, 237 Or App 256, 239 P3d 510 (2010)

Where appeal of sentence is successful on grounds other than unlawfully excessive sentence, Due Process Clause of Fourteenth Amendment bars state from imposing total sentence on remand that is more severe than initial sentence. State v. Partain, 349 Or 10, 239 P3d 232 (2010)

Court may consider, on remand, principles of constitutional law first announced after original sentencing. State v. Hollingquest, 241 Or App 1, 250 P3d 366 (2011)

On remand, trial court may impose any lawful sentence, whether that sentence is same as or different than original sentence. State v. Hollingquest, 241 Or App 1, 250 P3d 366 (2011)

Where court imposed sanction as part of probation revocation, sanction was governed by criminal history score at time of original sentence notwithstanding later reduction in criminal history score. State v. Anderson, 243 Or App 222, ___ P3d ___ (2011)

138.230

NOTES OF DECISIONS

The court may exercise its power under this section to affirm, notwithstanding the error, if the error was either so technical in nature or so unsubstantial that as a practical matter there was little, if any, likelihood that the erroneous evidence affected the verdict. State v. Van Hooser, 11 Or App 146, 501 P2d 78 (1972), aff’d 266 Or 19, 511 P2d 359 (1973)

Defendant’s admission of a matter as to which prejudicial error violating the privilege against self-incrimination had occurred cured this error. State v. Hunt, 15 Or App 76, 514 P2d 1363 (1973), Sup Ct review denied

138.480

NOTES OF DECISIONS

Public Defender lacked standing to prosecute appeal of conviction for driving under influence of intoxicants obtained in absentia and without defendant’s authorization. State v. Lyon, 36 Or App 255, 584 P2d 345 (1978)

138.500

NOTES OF DECISIONS

Indigency is a question of fact, reviewable only to determine whether there was an abuse of discretion. State v. Hari, 16 Or App 357, 518 P2d 1054 (1974), Sup Ct review denied

This section does not give Supreme Court authority to award attorney fees on appeal in habeas corpus cases to counsel appointed by circuit courts. Penrod/Brown v. Cupp, 284 Or 417, 587 P2d 96 (1978)

This section and [former] ORS 151.280, authorizing Public Defender Committee to determine when Public Defender is unable to serve as appointed appellate counsel, do not unconstitutionally encroach upon power of judiciary to regulate practice of law. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

Under this section, requiring that court furnish indigent defendant such portions of transcript as are “necessary” and “material to the decision on appeal,” it was proper for trial court to require affidavit informing court of defendant’s contentions on appeal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

This section does not violate indigent defendant’s constitutional right to transcript on appeal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

Where trial court denied request for transcript under this section and defendant wanted to renew the request, defendant should have filed motion before Court of Appeals to order transcript under ORAP 6.15. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)

When motion is made for transcript to be provided at public expense: 1) appellate counsel’s affidavit in support of motion must reflect contact with trial counsel and, in reasonable detail, trial counsel’s efforts to assist, including recollections of specific trial court rulings on objections, jury instructions given or requested and pretrial motions or rulings; 2) if motion for judgment of acquittal was made, and denial of motion is to be claimed error, transcript must be provided for entire evidentiary portion of trial; 3) if appeal includes challenge to sentence imposed, full transcript of evidentiary portions of trial must be provided, as well as testimony presented on pretrial motions; and 4) appellate counsel is, in absence of any evidence to the contrary, entitled to presumption that representations of reasons for needing transcript are made honestly and in good faith. State v. Bonner, 66 Or App 1, 672 P2d 1333 (1983)

Where public defender services corporation was under contract to provide trial court services but would not be contractually compensated for appellate representation, this section did not exclude compensation as court-appointed counsel on appeal. State v. Garcias, 298 Or 152, 690 P2d 497 (1984)

In criminal case with appointed counsel on appeal: 1) Court of Appeals shall set attorney fees based on determination of reasonableness of fee requested; 2) if Court of Appeals reduces amount of fee claimed, court shall provide counsel with brief explanation for reduction; 3) after reduction by Court of Appeals, counsel may petition for reconsideration and submit additional documentation and explanation to court; 4) Court of Appeals shall set final amount of compensation without further explanation; and 5) to extent assessment of lawyer’s work is factual, Court of Appeals’ factual decision is final. State v. Longjaw, 307 Or 47, 761 P2d 1331 (1988)

Under this section, Court of Appeals had discretion to grant extension of time in which to petition for court-appointed attorney fees, and where counsel had documented and unanticipated medical condition which substantially interfered with ability to file petition for fees in timely manner, extraordinary circumstances warranting further time were presented. State v. Vanderburg, 98 Or App 428, 781 P2d 1216 (1989)

Form advising that court appointed attorney spent too much time researching and writing brief and preparing for and attending oral argument sufficiently explained why Court of Appeals reduced attorney fees. State v. Robinson, 313 Or 565, 835 P2d 908 (1992)

Finding that counsel asserted frivolous argument in bad faith or for improper purpose is not required to find fees unreasonable. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)

This section does not authorize compensation to court-appointed counsel for expending unnecessary time preparing frivolous argument. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)

Where appellate judgment had already issued, error by counsel in calculating time for requesting court-appointed attorney compensation was not extraordinary circumstance excusing late filing. State ex rel Juv. Dept. v. Blomquist, 126 Or App 637, 870 P2d 238 (1994)

In determining whether to grant relief from default after late filing of request for court-appointed attorney compensation, court considers how late request is, whether judgment has been entered, how promptly counsel sought to cure problem and reasons given for delay. State ex rel Juv. Dept. v. Davis, 126 Or App 641, 870 P2d 236 (1994)

“Criminal action” has same meaning as definition set forth in ORS 131.005. Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied

Where, after due diligence, appellate counsel is unable to designate possible contention of error justifying provision of transcript at public expense, transcript is not required for representation by appellate counsel to be constitutionally adequate. State v. Richter, 140 Or App 1, 914 P2d 703 (1996), Sup Ct review denied

Appointment of appellate counsel is not authorized where appeal is from limited judgment ordering criminal defendant to pay portion of appointed trial counsel costs. State v. Shank, 206 Or App 280, 136 P3d 101 (2006)

138.510 to 138.680

NOTES OF DECISIONS

Any person who is convicted of a crime may seek relief under this section, whether or not he is in custody, regardless of whether his conviction is for a felony or misdemeanor. Morasch v. State, 261 Or 299, 493 P2d 1364 (1972)

Habeas corpus is a proper method of questioning the constitutionality of treatment accorded prisoners. Bekins v. Cupp, 274 Or 115, 545 P2d 861 (1976)

These sections afforded plain, speedy and adequate remedy in lower courts and state Supreme Court would not exercise original habeas corpus jurisdiction. Sweet v. Cupp, 640 F2d 233 (1981)

Post-conviction relief is not suspension of writ of habeas corpus; it provides different procedure but retains all necessary substantive and procedural advantages of the writ. Atkeson v. Cupp, 68 Or App 196, 680 P2d 772 (1984), Sup Ct review denied

Post-conviction relief under these sections is available to those convicted of DUII Class A traffic infractions to remedy constitutional violations. Evers v. State, 69 Or App 450, 685 P2d 1024 (1984)

Availability of post-conviction relief to persons convicted under state law but not to those convicted under municipal law does not violate Article I, section 20, or equal protection clause of Fourteenth Amendment, because persons convicted under municipal law do not constitute true class, and there is no discriminatory application of law. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)

Granting of delayed appeal authorized where necessary to rectify substantial denial of constitutional rights. State v. Macy, 316 Or 335, 851 P2d 579 (1993)

Federal constitutional principle requiring that facts that increase penalty for crime beyond statutory maximum be submitted to jury does not apply retroactively to afford post-conviction relief. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

State will retroactively apply new federal rule regarding constitutionality only if rule places certain kinds of conduct beyond proscription or if procedural rule affects fundamental fairness required for accurate conviction. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

LAW REVIEW CITATIONS: 68 OLR 269 (1989)

138.510

NOTES OF DECISIONS

“Laws of this state” means laws enacted by state, not municipality; those convicted under municipal ordinance are not convicted under laws of this state. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)

Filing of timely petition is not required in order for untimely petition to be “subsequent petition” asserting relief that could not reasonably have been raised in original or amended petition. Fine v. Zenon, 114 Or App 183, 834 P2d 509 (1992)

“Subsequent petition” means post-conviction petition filed after expiration of applicable limitation period of this section. Fine v. Zenon, 114 Or App 183, 834 P2d 509 (1992)

Where Court of Appeals decided after period for seeking post-conviction relief had expired that language in sentencing guidelines was unconstitutionally vague, defendants could not file for relief. Mora v. Maass, 120 Or App 173, 851 P2d 1154 (1993), aff’d 319 Or 570, 877 P2d 641 (1994)

Petitioner who neglected to appeal Parole Board order sustaining 15 year minimum sentence may not challenge parole consideration date in habeas corpus proceeding where date was set at expiration of minimum sentence and petitioner could not demonstrate other grounds for relief. Sager v. Board of Parole, 121 Or App 607, 856 P2d 329 (1993), Sup Ct review denied

Where correct information is available from other sources, receipt of erroneous advice does not make information type that could not reasonably have been raised during 120-day period. Brown v. Baldwin, 131 Or App 356, 885 P2d 707 (1994), Sup Ct review denied

One-year limit for filing post-conviction petition relating to conviction becoming final before August 5, 1989, is consistent with right of habeas corpus, notwithstanding lack of escape clause. Wallis v. Baldwin, 152 Or App 295, 954 P2d 192 (1998), Sup Ct review denied

Where late petition seeks relief based on change in law or new legal pronouncement, grounds for relief could “reasonably have been raised” earlier if legal principle underlying change or pronouncement was sufficiently settled and familiar that defendant could have anticipated and raised issue in timely manner. Long v. Armenakis, 166 Or App 94, 999 P2d 461 (2000), Sup Ct review denied

Mental disorder does not constitute ground for relief justifying untimely filing of petition. Fisher v. Belleque, 237 Or App 405, 240 P3d 745 (2010), Sup Ct review denied

LAW REVIEW CITATIONS: 68 OLR 270 (1989)

138.520

NOTES OF DECISIONS

Where there was a substantial question, at the time thereof, of the petitioner’s competency to waive indictment, to waive trial by jury and to enter a plea of guilty the post-conviction court shall conduct a hearing to determine whether or not the petitioner was competent at the times in question. Brady v. Calloway, 11 Or App 30, 501 P2d 72 (1972), Sup Ct review denied

Post-conviction court has authority to make release decision as part of or supplemental to relief granted and has jurisdiction to grant supplementary orders respecting release and bail even though case is on appeal. Johnson v. Maass, 98 Or App 97, 778 P2d 508 (1989)

Post-conviction relief may not be granted for attorney’s failure to investigate and present alibi defense that was based on false information petitioner gave to his attorney. Johnson v. Maass, 99 Or App 693, 784 P2d 107 (1989), Sup Ct review denied

Post-conviction court may apply remedy that is just and proper to correct error identified by petitioner, notwithstanding that applied remedy may exceed scope of remedy sought by petitioner. Brock v. Baldwin, 171 Or App 188, 14 P3d 651 (2000), Sup Ct review denied

Sentencing court may not modify sentence that has already been completely served. State v. Bisby, 212 Or App 86, 157 P3d 262 (2007), Sup Ct review denied

138.527

NOTES OF DECISIONS

“Frivolous” petition or response is one that reasonable lawyer would know is without factual basis or well-grounded legal argument. Davis v. Armenakis, 151 Or App 66, 948 P2d 327 (1997), Sup Ct review denied

138.530

NOTES OF DECISIONS

In general

Imposition of sentence not including jail time does not excuse failure to advise defendant of maximum possible sentence. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

This section does not permit bringing second post-conviction proceeding alleging incompetence of counsel in first proceeding as ground for post-conviction relief. Hetrick v. Keeney, 77 Or App 506, 713 P2d 688 (1986), Sup Ct review denied

Trial court’s failure to comply with ORS 135.395 did not constitute basis for post-conviction relief under this section. Dockery v. Maass, 99 Or App 219, 781 P2d 1230 (1989), Sup Ct review denied

“Fundamental fairness” is neither independent grounds for relief nor basis for affording relief where person reconsiders foregoing appeal and petitioner was not entitled to relief where codefendant had prevailed in overturning conviction. Hunter v. Maass, 106 Or App 438, 808 P2d 723 (1991), Sup Ct review denied

Where constitutional issue could reasonably have been raised at trial, but was not raised, defendant was not entitled to assert issue to obtain post-conviction relief, distinguishing Wells v. Peterson, 315 Or 233, 844 P2d 192 (1992). Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994)

To demonstrate prejudice of constitutional magnitude, petitioner must show that act or omission had tendency to affect result of prosecution. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)

Policy is for Oregon courts to apply federal retroactivity rules to newly announced federal constitutional principles as grounds for post-conviction relief. Teague v. Palmateer, 184 Or App 577, 57 P3d 176 (2002), Sup Ct review denied

Substantial denial of constitutional rights

Delay in imposition of enhanced penalty does not constitute denial of right of speedy trial. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

In determining whether guilty plea was voluntarily made, record must show that accused intelligently and understandingly made plea. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied

When petitioner’s challenge is based on voluntariness of his guilty plea, court may take testimony as well as consider trial court record. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied

Pleading guilty without being advised as to parole ineligibility raises no constitutional issue. Jones v. Cupp, 7 Or App 415, 490 P2d 1038 (1971)

Because petitioner’s sentence was increased prior to his commitment in execution of judgment, no double jeopardy was involved. Scharbrough v. Cupp, 7 Or App 596, 490 P2d 529 (1971), Sup Ct review denied

Claim that juror supplied information not in evidence to other jurors during deliberations did not allege and prove that constitutional violation was material factor leading to conviction. Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148 (1993), Sup Ct review denied

Right to counsel

The state has the burden of showing the communication to petitioner of the right of “free” counsel or his independent knowledge thereof. Harris v. Cupp, 6 Or App 400, 487 P2d 1402 (1971), Sup Ct review denied

In evaluating the competence of defendant’s previous counsel, the court will apply a test of reasonable competence under the circumstances. Rook v. Cupp, 18 Or App 608, 526 P2d 605 (1974), Sup Ct review denied

Petition alleging failure by counsel to object to an improper comment, to cross-examine or at a minimum to impeach a witness on a critical fact and to argue effectively was sufficient to state a cause of action. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied

Defense counsel’s failure to investigate defendant’s alibi was arguably a dereliction of duty, but it was not prejudicial where court in post-conviction proceeding found that alibi testimony would not have been credible. Howe v. Cupp, 55 Or App 247, 637 P2d 933 (1981), Sup Ct review denied

Petitioner failed to prove decision to waive counsel was influenced by fact that counsel had not informed him that life sentence upon conviction of murder would also include imposition of mandatory minimum term. Twitty v. Maass, 105 Or App 387, 805 P2d 706 (1991)

Relief must be granted under this section if defendant proves by preponderance of evidence that: (1) neither trial judge nor counsel advised defendant of dangerous offender statute; and (2) defendant was not otherwise aware of statute’s potential effect before entry of plea. Meyers v. Maass, 106 Or App 32, 806 P2d 695 (1991)

Where defense counsel requested one acquittal-first jury instruction about lesser included offenses and failed to object to two others, assistance of counsel was inadequate. Aikens v. Maass, 122 Or App 321, 858 P2d 148 (1993), Sup Ct review denied

Where counsel offered erroneous advice on matter playing significant role in decision to accept plea bargain, counsel was inadequate. Long v. State of Oregon, 130 Or App 198, 880 P2d 509 (1994)

Misleading defendant as to right to testify was denial of effective counsel. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)

Where defense attorney has previously acted as prosecutor against defendant, prejudice is presumed only if cases have substantial connection. Smart v. Maass, 148 Or App 431, 939 P2d 1184 (1997), Sup Ct review denied

Failure of trial counsel to make adequate investigation does not entitle defendant to post-conviction relief absent showing that failure tended to affect result of trial. Carias v. State of Oregon, 148 Or App 540, 941 P2d 571 (1997)

Lack of jurisdiction

Late filing of an information in a habitual criminal proceeding does not raise the issue of jurisdiction. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

“Jurisdiction” under this section refers to jurisdiction over defendant and charged offense and invalidity of orders and convictions supporting charge does not deprive trial court of jurisdiction. Franklin v. State of Oregon, 109 Or App 274, 819 P2d 739 (1991), Sup Ct review denied

Excessive or unconstitutional sentence

The legislative intent in the enactment of this statute was not to establish a new ground for collateral relief, but rather to codify a ground for relief previously available in habeas corpusproceedings. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

A mere irregularity in sentencing is not a basis for relief. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

Sentence imposed pursuant to former statute authorizing a sentence for an indeterminate term for certain sex offenders was not unconstitutionally imposed. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

When case has been remanded to trial court for correction of judgment, petitioner may not assert challenges to judgment that were not raised in petition. State v. Henderson, 146 Or App 81, 932 P2d 577 (1997)

Post-prison supervision is part of sentence and therefore subject to challenge for lawfulness through post-conviction relief even though supervision might not yet be in effect. Lattymer v. Thompson, 170 Or App 160, 12 P3d 535 (2000), Sup Ct review denied

Where sentence resulted from stipulated sentencing agreement, petitioner may not seek relief on basis that sentence exceeds maximum allowed by law. Haney v. Schiedler, 202 Or App 51, 120 P3d 1225 (2005)

COMPLETED CITATIONS: O’Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

138.540

LAW REVIEW CITATIONS: 68 OLR 271 (1989)

138.550

NOTES OF DECISIONS

Collateral post-conviction relief is not available when the issues petitioner seeks to raise are issues which could reasonably have been raised by a direct appeal. Lerch v. Cupp, 9 Or App 508, 497 P2d 379 (1972), Sup Ct review denied

Questions relating to duration of sentence are cognizable in a post-conviction proceeding even though they could have been raised on appeal. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

Where, subsequent to imposition of sentence for conviction of misdemeanor, trial court added condition of probation that petitioner reimburse county for certain expenses of his trial, petitioner was not barred from bringing proceeding under this section challenging the condition. Stacey v. State of Oregon, 30 Or App 1075, 569 P2d 640 (1977)

Where, upon appeal to circuit court from DUII conviction in justice court, plaintiff failed to renew request for jury trial despite actual knowledge that question was pending before Supreme Court, failure to do so barred assertion of constitutional error in post-conviction relief petition. Boyer v. State, 43 Or App 629, 603 P2d 1228 (1979)

Where petitioner claims that post-conviction relief is unavailable and trial court’s dismissal of petition for writ of habeas corpus was error, question of whether issue could reasonably have been raised on direct appeal thereby barring petitioner from obtaining post-conviction relief must be litigated first. Twitty v. Maass, 95 Or App 715, 770 P2d 963 (1989), on reconsideration 96 Or App 631, 773 P2d 1336 (1989)

Where claim in habeas corpus proceeding was based on constitutional principle articulated after petitioner’s direct appeal, claim would be considered in post-conviction proceeding and court did not err in dismissing petition. Twitty v. Maass, 96 Or App 631, 773 P2d 1336 (1989)

Petitioner was not entitled to post-conviction relief for trial counsel’s failure to obtain interpreter because petitioner was granted delayed appeal in which petitioner can challenge criminal trial court’s rulings. Solic v. Zenon, 108 Or App 360, 815 P2d 716 (1991), Sup Ct review denied

This section does not allow raising issue that could have been raised at trial or upon direct appeal when petitioner does not argue that counsel at trial was incompetent or that petitioner was excusably unaware of facts that could have provided basis for challenge made in post-conviction relief proceedings. Franklin v. State of Oregon, 109 Or App 274, 819 P2d 739 (1991), Sup Ct review denied

Petitioner’s claims that petitioner could not have known of inadequacies in representation at trial due to first post-conviction counsel’s neglect do not provide grounds for post-conviction relief. Miller v. Maass, 117 Or App 610, 845 P2d 933 (1993), Sup Ct review denied

Issues raisable at trial are reviewable on direct appeal only if preserved at trial, and are raisable on post-conviction relief only if not preserved at trial. Goodwin v. State of Oregon, 125 Or App 359, 866 P2d 466 (1993), Sup Ct review denied

Where constitutional issue could reasonably have been raised at trial but was not raised, defendant was not entitled to assert issue to obtain post-conviction relief, distinguishing Wells v. Peterson, 315 Or 233, 844 P2d 192 (1992). Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994)

Prohibition against assertion of post-conviction relief grounds that petitioner could have, but did not, raise on direct appeal applies to both constitutional and statutory grounds for relief. Walton v. Thompson, 196 Or App 335, 102 P3d 687 (2004), Sup Ct review denied

“Hearing” on subsequent petition refers to hearing within meaning of ORS 138.620. Ware v. Hall, 342 Or 444, 154 P3d 118 (2007)

COMPLETED CITATIONS: Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

138.560

NOTES OF DECISIONS

Exception in this section does not deny post-conviction relief to persons convicted of misdemeanors and no longer in custody. Morasch v. State, 261 Or 299, 493 P2d 1364 (1972)

Prisoner filing of petition in county where not imprisoned raises venue issue, not jurisdictional issue. Phelps v. State of Oregon, 136 Or App 363, 901 P2d 965 (1995)

138.570

LAW REVIEW CITATIONS: 68 WLR 271 (1989)

138.580

NOTES OF DECISIONS

Court may not act sua sponte to grant relief on grounds not specified in petition. Bowen v. Johnson, 166 Or App 89, 999 P2d 1159 (2000), Sup Ct review denied

Provision that argument, citations and discussion of authorities “may” be submitted in separate memorandum of law does not prohibit court from requiring submission of trial memorandum. Phan v. Morrow, 185 Or App 628, 60 P3d 1111 (2003)

138.590

NOTES OF DECISIONS

Fact that this section requires employment of counsel for indigent petitioners does not, by itself, make Post-Conviction Release Act analogous to furnishing of counsel in criminal cases nor subject petitioners to ORS 161.665, the Recoupment Statute. Hawk v. State of Oregon, 51 Or App 655, 626 P2d 931 (1981)

Where petitioner requests appointment of counsel pursuant to this section, eligibility for appointment must be determined prior to hearing which finally disposes of petition. Rodacker v. State of Oregon, 79 Or App 31, 717 P2d 659 (1986)

Court may not dismiss filing of petition for post-conviction relief that is accompanied by affidavit of indigency and motion for appointment of counsel without first ruling on issue of indigency and appointing counsel if petitioner found to be indigent. Kumar v. Schiedler, 128 Or App 572, 876 P2d 808 (1994)

Petitioner alleging ineffective assistance of post-conviction counsel is not entitled to hearing on motion to replace counsel. Elkins v. Thompson, 174 Or App 307, 25 P3d 376 (2001), Sup Ct review denied

LAW REVIEW CITATIONS: 68 OLR 271 (1989)

138.610

NOTES OF DECISIONS

Trial court has no obligation to advise petitioner of petitioner’s right to ask leave of court to withdraw petition. Beck v. Wright, 111 Or App 534, 826 P2d 102 (1992)

Four considerations bearing on appropriate exercise of discretion in ruling on motion to amend are: 1) nature of proposed amendments and relationship to existing pleadings; 2) prejudice, if any, to opposing party; 3) timing of proposed amendments and related docketing concerns; and 4) colorable merit of proposed amendments. Ramsey v. Thompson, 162 Or App 139, 986 P2d 54 (1999), Sup Ct review denied

138.620

NOTES OF DECISIONS

Evidence, in post-conviction proceeding, that petitioner secured own appeal bond, contacted attorney following conviction and sentencing, but failed to respond to attorney’s letter concerning pending appeal, was sufficient to support finding that petitioner was not denied counsel on appeal. Whitlow v. Kerner, 35 Or App 539, 581 P2d 976 (1978)

Where record showed that defendant was not informed of his rights prior to pleading guilty and there was no evidence to show that he otherwise knew what rights he waived by guilty plea, state failed to carry burden of proving that plea was voluntarily, knowingly and intelligently made. Boag v. State, 44 Or App, 605 P2d 304 (1980)

Where petitioner requests appointment of counsel pursuant to ORS 138.590, eligibility for appointment must be determined prior to hearing which finally disposes of petition. Rodacker v. State of Oregon, 79 Or App 31, 717 P2d 659 (1986)

Where merits of petition were not before court on motion to dismiss for lack of subject matter jurisdiction and court nonetheless considered merits and made factual determination that post-conviction relief was unavailable without according petitioner opportunity to present evidence or be heard otherwise on claim, court erred in dismissing on merits. McClaflin v. Wright, 101 Or App 10, 788 P2d 1027 (1990)

COMPLETED CITATIONS: James v. Cupp, 5 Or App 181, 482 P2d 543 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

138.630

NOTES OF DECISIONS

Obligation to provide free trial transcript to indigent defendant for post-conviction relief purposes is limited to instances where sufficient information shows information sought is necessary and material. Perkins v. Tarno, 136 Or App 409, 901 P2d 953 (1995), Sup Ct review denied

138.640

NOTES OF DECISIONS

Where petitioner sought post-conviction relief contending he had received invalid consecutive sentences and post-conviction court dismissed petition and entered order relying on grounds neither presented to court nor responsive to petition, remand to Court of Appeals for consideration to enter proper final order was appropriate. Wilson v. Maass, 305 Or 434, 752 P2d 840 (1988)

Where document from which appeal was attempted in post-conviction case did not make final disposition of the case, it did not meet requirements of this section and case was remanded for disposition. Stelljes v. Maass, 306 Or 655, 761 P2d 925 (1988)

Judgment denying relief must (1) identify claims for relief and make separate rulings on each claim; (2) declare whether denial is based on petitioner’s failure to follow available state procedures or to failure establish merits of claim; and (3) make legal basis for denial apparent. Datt v. Hill, 347 Or 672, 227 P3d 714 (2010)

138.650

NOTES OF DECISIONS

Factfinding by Court of Appeals in post-conviction proceedings is contrary to this section. Hartzog v. Keeney, 304 Or 57, 742 P2d 600 (1987)

Appellate review in post-conviction proceeding is limited to questions of law. Yeager v. Maass, 93 Or App 561, 763 P2d 184 (1988), Sup Ct review denied

“Manner of taking appeal” refers to procedures for filing and prosecution of appeal, not to taxation of appellate costs and disbursements. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied

Good cause exception (ORS 138.071) to 30-day time limit for filing notice of appeal in criminal case is not available for appeal from denial of post-conviction relief. Felkel v. Thompson, 157 Or App 218, 970 P2d 657 (1998)

Delayed appeal is not available as remedy for claim of inadequate assistance of post-conviction relief counsel. Miller v. Baldwin, 176 Or App 500, 32 P3d 234 (2001)

In post-conviction appeal, reviewing court may reverse, affirm or modify judgment of post-conviction court only if reviewing court finds error in issue appearing upon record. Pratt v. Armenakis, 199 Or App 448, 112 P3d 371 (2005), on reconsideration 201 Or App 217, 118 P3d 821 (2005), Sup Ct review denied

COMPLETED CITATIONS: Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 652 (1972)