State v. Colgrove

474

Argued and submitted November 9, 2021, resubmitted January 25; decision

of Court of Appeals affirmed, circuit court’s judgment of conviction affirmed

in part and vacated in part, and case remanded to circuit court for further

proceedings; circuit court’s judgment for costs of appointed counsel reversed

December 1, 2022

STATE OF OREGON,

Respondent on Review,

v.

RHONDA COLGROVE,

Petitioner on Review.

(CC 17CR57106) (CA A169952) (SC S068372)

521 P3d 456

Defendant pleaded guilty to misdemeanor driving under the influence of

intoxicants and filed a petition to enter diversion. The trial court accepted defen-

dant’s guilty plea that had been filed as part of the petition, but it withheld entry

of a judgment of conviction. Defendant failed to pay $335 in fees and to attend a

victim impact panel within the diversion period. The trial court thereafter termi-

nated the diversion agreement and entered a judgment of conviction. Defendant

appealed, challenging her conviction on the ground that the trial court had erro-

neously terminated her diversion agreement. The Court of Appeals assumed that

defendant’s challenge was reviewable under ORS 138.105(5), but concluded that

it failed on the merits. Held: ORS 138.105(5) precludes a defendant who pleads

guilty or no contest from obtaining appellate review of legal challenges to the

“conviction” in the judgment entered in the trial court. As used in that statute,

the term “conviction” refers to the trial court’s judgment—that is, the judicial

determination of guilt as reflected in the judgment entered on the plea, which

encompasses intermediate trial court rulings that led to the entry of the judg-

ment containing that judicial determination.

The decision of the Court of Appeals is affirmed. The circuit court’s judgment

of conviction is affirmed in part and vacated in part, and the case is remanded

to the circuit court for further proceedings. The circuit court’s judgment for the

costs of appointed counsel is reversed.

On review from the Court of Appeals.*

Kyle Krohn, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender.

Rolf C. Moan, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

______________

* On appeal from the Umatilla County Circuit Court, Paul G. Crowley and

Daniel J. Hill, Judges. 308 Or App 441, 480 P3d 1026 (2021).

Cite as 370 Or 474 (2022) 475

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, and DeHoog, Justices.**

NELSON, J.

The decision of the Court of Appeals is affirmed. The cir-

cuit court’s judgment of conviction is affirmed in part and

vacated in part, and the case is remanded to the circuit

court for further proceedings. The circuit court’s judgment

for the costs of appointed counsel is reversed.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case.

476 State v. Colgrove

NELSON, J.

This criminal case concerns the meaning of ORS

138.105(5), which provides, in part, that “[t]he appellate

court has no authority to review the validity of * * * a convic-

tion based on the defendant’s plea of guilty or no contest[.]”

Specifically, we must determine whether that statute pre-

cludes a defendant who has pleaded guilty or no contest

from obtaining appellate review of legal challenges to the

conviction in the judgment entered in the trial court. For the

reasons that follow, we conclude that such challenges are not

reviewable under ORS 138.105(5). Accordingly, we affirm

the decision of the Court of Appeals on different grounds.

I. BACKGROUND

A. DUII Diversion Statutes

This case concerns a driving under the influence of

intoxicants (DUII) conviction following the termination of

a diversion agreement. We therefore begin by providing an

overview of the statutes governing DUII diversion. See ORS

813.200 - 813.270 (governing the diversion program for per-

sons charged with DUII).

Generally, a defendant charged with DUII who

satisfies certain eligibility requirements may file a peti-

tion for diversion. ORS 813.215. The content of the petition

is governed by ORS 813.200, and, among other things, it

must include a guilty or no contest plea. If the trial court

allows a diversion petition, the judge shall “[a]ccept the

* * * plea” but “withhold entry of a judgment of conviction.”

ORS 813.230(1). The petition then becomes the agreement

between the defendant and the court. ORS 813.230(2). As

part of that agreement, the court “may require as a con-

dition of a [DUII] diversion agreement that the defendant

attend a victim impact treatment session” and “pay a rea-

sonable fee to the victim impact program to offset the cost of

the defendant’s participation.” ORS 813.235.

The diversion agreement “shall be for a period of

one year after the date the court allows the petition.” ORS

813.230(3) (emphasis added). However, if a defendant needs

additional time beyond one year to complete the require-

ments of diversion, the defendant may request an extension

Cite as 370 Or 474 (2022) 477

“[w]ithin 30 days prior to the end of the diversion period.”

ORS 813.225(1). The trial court has discretion to grant an

extension if it finds that “the defendant made a good faith

effort to complete the conditions of the diversion agreement

and that the defendant can complete the conditions of the

diversion agreement” within the requested extension of

the diversion period. ORS 813.225(4). Generally, the court

is permitted to grant only one extension of the diversion

period, which cannot exceed 180 days from the end date of

the original one-year period.1 ORS 813.225(5), (6). “During

the diversion period[,] the court shall stay the [DUII] offense

proceeding pending completion of the diversion agreement

or its termination.” ORS 813.230(3).

At any time before the court dismisses the DUII

charge with prejudice, or on the court’s own motion or the

motion of a district or city attorney, the court may issue

an order requiring the defendant to show cause why the

court should not terminate the diversion agreement. ORS

813.255(1). The order to show cause must (1) state the rea-

sons for the proposed termination; (2) set an appearance

date; and (3) specify the amount of any fees owed and, if

the fees owed are less than $500, inform the defendant that

the court may dismiss the DUII charge with prejudice if the

defendant “has complied with and performed all of the con-

ditions of the diversion agreement and pays the remaining

amount before or on the date of the hearing.” Id. The order

must be served on the defendant and on the defendant’s

attorney, if any. ORS 813.255(2). The court “shall terminate

the diversion agreement and enter the guilty plea or no con-

test plea” if the defendant “fails to appear at the hearing on

the order to show cause or if, at the hearing on the order to

show cause, the court finds by a preponderance of the evi-

dence” that the defendant no longer qualifies for diversion

under ORS 813.215 or “[t]he defendant failed to fulfill all

of the terms of the diversion agreement.” ORS 813.255(3)

(emphasis added).

However, if a defendant has fully complied with and

performed the conditions of the diversion agreement, the

1

There is an exception that is inapplicable in this case. See ORS 813.225(7)

(exception for certain members of the military).

478 State v. Colgrove

defendant is entitled to dismissal of the DUII charge with

prejudice. See ORS 813.250(1) (“At any time after the conclu-

sion of the period of a [DUII] diversion agreement described

in ORS 813.230, a defendant who has fully complied with

and performed the conditions of the diversion agreement

may apply by motion to the court wherein the diversion

agreement was entered for an order dismissing the charge

with prejudice.”); see also City of Pendleton v. Standerfer, 297

Or 725, 731, 688 P2d 68 (1984), abrogated on other grounds

by State v. Probst, 339 Or 612, 124 P3d 1237 (2005) (explain-

ing that “[a] defendant who has fully complied with and per-

formed the conditions of the diversion agreement is entitled

to have the charge dismissed with prejudice,” citing the sub-

stantively identical statutory precursor to ORS 813.250(1)).

Additionally, if a defendant appears at a show cause hear-

ing, “the court shall dismiss with prejudice” the DUII charge

if the defendant has complied with all diversion conditions

except for the payment of $500 or less in fees, provided the

remaining fees are paid by 5:00 p.m. on the day of the show

cause hearing. ORS 813.255(5) (emphasis added).

B. The Facts

With that understanding of the statutes, we set out

the basic facts. Defendant pleaded guilty to misdemeanor

DUII and filed a petition to enter diversion. Defendant’s

diversion petition stated, in part, that she had “read

and underst[ood] all of the information in the attached

Explanation of Rights and DUII Diversion Agreement” and

“agree[d],” among other things, to “[a]ttend a victim impact

panel as ordered by the court.” (Emphasis in original.) The

accompanying Explanation of Rights and DUII Diversion

Agreement form stated, in part, that, if defendant “fail[ed]

to fulfill the terms of the agreement by the end of the diver-

sion period, the court [would] sentence [her] without a trial.”

Defendant’s guilty plea also included a statement that

defendant understood that, if she “fail[ed] to comply with

the diversion agreement within the diversion period, the

court [would] enter a judgment of conviction on the charge

and w[ould] sentence [her].” The trial court issued an order

allowing defendant’s diversion petition, ordering her to

attend a victim impact panel, and establishing a one-year

diversion period with specific beginning and ending dates.

Cite as 370 Or 474 (2022) 479

As required by ORS 813.230, the trial court also accepted

defendant’s guilty plea that had been filed as part of the

petition, but it withheld entry of a judgment of conviction.

Defendant failed to pay $335 in fees and to attend

a victim impact panel within the diversion period. The trial

court thereafter terminated the diversion agreement and

entered a judgment of conviction, and defendant appealed.2

As pertinent here, defendant challenged her conviction on

the ground that the trial court had erroneously terminated

her diversion agreement either because the agreement had

not set a deadline to attend the victim impact panel or

because the trial court had discretion to waive the atten-

dance requirement. The Court of Appeals assumed that

defendant’s challenge was reviewable under ORS 138.105(5),

but concluded that it failed on the merits. State v. Colgrove,

308 Or App 441, 480 P3d 1026 (2021). We allowed defen-

dant’s petition for review and now address the reviewabil-

ity issue that the Court of Appeals did not—viz., whether

ORS 138.105(5) precludes a defendant who pleads guilty or

no contest from obtaining appellate review of legal chal-

lenges to the conviction in the judgment entered in the trial

court.

II. REVIEWABILITY UNDER ORS 138.105(5)

A. Defendant’s Arguments

Again, ORS 138.105(5)—set out in full below—

provides, in part, that the appellate court has no authority

“to review the validity of * * * a conviction based on the defen-

dant’s plea of guilty or no contest[.]” Defendant advocates a

2

After the trial court entered the original judgment of conviction, it amended

that judgment in ways that are not material to our review. Although defendant

appealed the original and amended judgments, we refer to “the judgment of con-

viction” throughout this opinion.

Defendant also appealed a separate judgment entered on December 3, 2018,

that required her to pay a particular amount for the cost of court-appointed coun-

sel. On appeal, defendant challenged, among other things, the imposition of var-

ious fines and fees in the judgment of conviction and the imposition of the costs

of counsel in the December 3, 2018, judgment. Ultimately, the Court of Appeals

reversed the latter judgment and vacated the $255 DUII conviction fee in the

judgment of conviction, remanded the entire case for resentencing, and otherwise

affirmed. On review, defendant has not challenged those rulings in the event that

we reject her contentions related to the conviction itself. Accordingly, we do not

discuss those rulings further.

480 State v. Colgrove

narrow reading of that statute. Specifically, she contends

that the resolution of the reviewability issue reduces to

the meaning of the term “conviction” as it is used in ORS

138.105(5). Noting that the term is not defined for purposes

of that statute, defendant asserts that the term should be

given its legal meaning. See Ogle v. Nooth, 355 Or 570, 578,

330 P3d 572 (2014) (“[W]hen words are used in the context

of a legal proceeding * * * they may be used as legal terms of

art, and, if so, we give precedence to their legal meanings.”).

According to defendant, in Vasquez v. Courtney, 272 Or 477,

480, 537 P2d 536 (1975), this court explained that the term

“conviction” has two accepted meanings:

“The first refers to a finding of guilt by a plea or verdict.

The second, more technical meaning refers to the final

judgment entered on a plea or verdict of guilt. In the latter

case conviction has not been accomplished until the judg-

ment is made by the court.”

See also Webster’s Third New Int’l Dictionary 499 (unabridged

ed 2002) (defining “conviction” to mean “the act of proving,

finding, or adjudging a person guilty of an offense or crime”).

In the context of ORS 138.105(5), defendant contends

that the term “ ‘conviction’ means ‘finding of guilt’ ” because

the term “usually has that meaning in statutes governing

criminal procedures—such as appeals—whereas it means

judgment of conviction in statutes governing collateral con-

sequences or collateral review,” and because “interpreting

conviction as a finding of guilt” rather than as “a judgment

of conviction” is consistent with “[o]ther parts of ORS chap-

ter 138.” Defendant further argues that the legislative his-

tory supports that interpretation. Specifically, as defendant

explains, “[t]he evolution of Oregon’s criminal appeal stat-

utes contains little evidence that the legislature intended

to preclude appellate review of diversion terminations. And

the legislature’s 2017 revision of the appeal statutes shows

that it intended to relax the strict limits on review after a

guilty plea that had previously applied.” Accordingly, defen-

dant reasons that, “[u]nder ORS 138.105(5), defendants

who plead guilty may not challenge their factual guilt, but

they may raise other legal challenges to the entry of a judg-

ment of conviction—including the erroneous termination of

diversion.”

Cite as 370 Or 474 (2022) 481

To resolve defendant’s contentions, we must inter-

pret ORS 138.105(5). When interpreting a statute, our goal is

to determine the legislature’s intent by examining the stat-

utory text in context along with any legislative history that

appears useful to our analysis. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009). As we will explain, although

defendant’s proposed construction of the term “conviction”

in ORS 138.105(5) to mean “finding of guilt” is not wholly

implausible, her construction becomes untenable when the

text of the statute is viewed in context and in the light of its

legislative history.

B. Statutory Text

We begin with the text of the statute, which was

enacted as part of Senate Bill (SB) 896 (2017). ORS 138.105(5),

provides, in full:

“The appellate court has no authority to review the valid-

ity of the defendant’s plea of guilty or no contest, or a con-

viction based on the defendant’s plea of guilty or no contest,

except that:

“(a) The appellate court has authority to review the

trial court’s adverse determination of a pretrial motion

reserved in a conditional plea of guilty or no contest under

ORS 135.335.

“(b) The appellate court has authority to review

whether the trial court erred by not merging determina-

tions of guilt of two or more offenses, unless the entry of

separate convictions results from an agreement between

the state and the defendant.”

(Emphases added.)

According to defendant, the legislature intended

the term “conviction” in the first part of that statute to mean

“finding of guilt.” It is plausible that, as used in the phrase

“a conviction based on the defendant’s plea of guilty or no

contest,” the term “conviction” could have that meaning. As

noted, in Vasquez, this court identified “finding of guilt by

a plea or verdict” as an accepted legal meaning of the term

“conviction.” 272 Or at 480.

Further, defendant argues that “[t]he fact that ORS

138.105(5) proscribes review of challenges to both the plea

482 State v. Colgrove

and the conviction suggests that those words encompass

different things”—that is, “[t]he plea is the defendant’s

acknowledgment of guilt, whereas the conviction is the

court’s finding of guilt based on the plea.” (Emphases omit-

ted.) According to defendant, if “conviction” means “ ‘judg-

ment of conviction,’ a challenge to the plea would be pre-

cluded as a challenge to the conviction,” and the word “plea”

becomes redundant. As defendant reasons,

“interpreting ‘conviction’ to mean ‘finding of guilt’ avoids

redundancy by allowing conviction and plea to mean dif-

ferent things. By precluding review of the plea, the stat-

ute bars defendants from arguing that their decision to

plead guilty was not knowing or voluntary.[3] By precluding

review of the conviction, the statute bars defendants from

disputing the court’s finding of guilt based on the plea. But

the statute does not bar defendants from arguing that, not-

withstanding their factual guilt, some other legal imped-

iment precludes the entry of a judgment of conviction.

Defendant’s interpretation avoids redundancy and gives

full effect to each word in the statute.”

However, defendant’s proffered interpretation of

the term “conviction” also introduces redundancy into the

statute. That is so because, if defendant were correct that

an appellate court has authority to review all legal chal-

lenges other than challenges to the validity of the plea or the

“finding of guilt” in the plea, then much of ORS 138.105(5)

becomes meaningless surplusage. Specifically, there would

have been no reason for the legislature to have authorized

review of an adverse determination of a pretrial motion

reserved in a conditional plea under ORS 135.335 or a trial

court ruling not to merge determinations of guilt into one or

more separate convictions.

By contrast, as noted above, “conviction” also can

refer to “the final judgment entered on a plea or verdict of

guilt.” Vasquez, 272 Or at 480; see id. at 479 (“A ‘judgment’ in

a criminal case constitutes a judicial determination of guilt

3

See ORS 135.390(1) (“The court shall not accept a plea of guilty or no contest

without first determining that the plea is voluntary and intelligently made.”);

Dixon v. Gladden, 250 Or 580, 585, 444 P2d 11 (1968) (explaining that a valid

guilty plea “must be voluntary and must be understandingly made with knowl-

edge by the party of his rights”); see also State v. King, 361 Or 646, 666, 398 P3d

336 (2017) (same).

Cite as 370 Or 474 (2022) 483

based on a verdict or plea of guilty and imposes a penalty

for the transgression committed by the defendant.”); see also

State v. McDonnell, 306 Or 579, 581-82, 761 P2d 921 (1988)

(“A plea or verdict of guilty is not synonymous with a con-

viction. * * * A ‘judgment of conviction’ represents the com-

bined factual and legal determinations that the defendant

committed acts constituting a crime and that there is no

legal impediment to so declaring; it is the string that ties up

the package.”). If “conviction” refers broadly to the judicial

determination of guilt reflected in the judgment entered on

the plea and an appellate court has no authority to review

challenges to the “conviction,” then the need for the express

exceptions embodied in ORS 138.105(5)(a) and (b) becomes

apparent.

Further, adopting defendant’s understanding of ORS

138.105(5) would require us to conclude that the word “con-

viction” means different things within the statute itself.

Specifically, ORS 138.105(5)(b) also uses the term “convic-

tion” in the context of an exception authorizing the appellate

court to review a trial court’s decision not to merge multiple

determinations of guilt, “unless the entry of separate con-

victions results from an agreement between the state and

the defendant.” (Emphasis added.) In that context, “convic-

tion” more naturally refers to the judicial determination

of guilt reflected in the judgment entered on the plea. See

ORS 137.071(2)(f) (providing that a “judgment document”

shall include the court’s determination of each charge); ORS

137.071(2)(g) (noting that a “determination” may include a

“determination * * * of conviction”); see also State v. White,

346 Or 275, 279 n 4, 211 P3d 248 (2009) (explaining that a

“defendant is not formally ‘convicted’ on any charge until

the trial court enters a judgment”).

When interpreting statutes, we generally assume

that “the legislature intended the same word to have the

same meaning throughout related statutes unless some-

thing in the text or context of the statute suggests a con-

trary intention.” Village at Main Street Phase II v. Dept. of

Rev., 356 Or 164, 175, 339 P3d 428 (2014). Further, we typi-

cally presume that the legislature intended to avoid “mean-

ingless surplusage.” State v. Clemente-Perez, 357 Or 745,

755, 359 P3d 232 (2015); see also Vsetecka v. Safeway Stores,

484 State v. Colgrove

Inc., 337 Or 502, 510, 98 P3d 1116 (2004) (“When, as in this

case, a statute contains multiple provisions, ORS 174.010

directs us to read those provisions, if possible, in a way that

will give effect to all of them.”). Because defendant’s pro-

posed construction of the term “conviction” would render

significant parts of ORS 138.105(5) meaningless and would

require us to assume that the legislature ascribed different

meanings to the term “conviction” within the statute itself,

we conclude as a textual matter that the legislature appears

to have intended the term to have its alternative, accepted

legal meaning—that is, “conviction” refers to the judicial

determination of guilt reflected in the judgment entered on

the plea of guilty or no contest.

C. Statutory Context

1. ORS 138.105 and related statutes

Further examination of the statutory context con-

firms that conclusion. See SAIF v. Ward, 369 Or 384, 394,

506 P3d 384 (2022) (“The context of a statute includes other

provisions of the same statute and related statutes, as well

as the preexisting common law and the statutory frame-

work within which the statute was enacted.” (Internal quo-

tation marks omitted.)). As noted, ORS 138.105(5) is a single

provision enacted as part of SB 896—a comprehensive bill

addressing the procedural law governing criminal appeals

that was submitted to the legislature by the Oregon Law

Commission.

As a result of the enactment of SB 896, separate but

interrelated statutes govern “appealability” and “reviewabil-

ity” in appeals by defendants and by the state. See ORS 138.035

(governing appeals by defendants); ORS 138.105 (governing

reviewability in defendants’ appeals); ORS 138.045 (govern-

ing appeals by the state); ORS 138.115 (governing review-

ability in state’s appeals); see also ORS 138.005(2) (defining

“appealable,” to mean, “in reference to a judgment or order

rendered by a trial court, that the judgment or order is, by

law, subject to appeal by a party”); ORS 138.005(4) (defining

“reviewable” to mean, “in reference to a particular decision of

a trial court on appeal from an appealable judgment or order,

that the appellate court may, by law, consider the decision

and resolve an issue regarding the decision”).

Cite as 370 Or 474 (2022) 485

As pertinent here, a defendant, among other things,

“may take an appeal from the circuit court * * * to the Court

of Appeals from a judgment:

“(A) Conclusively disposing of all counts in the accu-

satory instrument or conclusively disposing of all counts

severed from other counts;

“(B) Convicting the defendant of at least one count;

and

“(C) Imposing sentence on all counts of which the

defendant was convicted.”

ORS 138.035(1)(a); see also ORS 138.071(1) (requiring gen-

erally that an appeal be filed within 30 days “after the

judgment or order appealed from is entered in the register”

(emphasis added)). In sum, a defendant may appeal a “judg-

ment” that has been entered in the register that contains a

“conviction” and a “sentence.”

If a defendant appeals such a judgment, ORS

138.105 governs the issues that an appellate court may

review. ORS 138.105(5)—the provision at issue in this

case—is one of many interrelated subsections in a statute

that appears designed to function as an integrated whole.

Appellate courts are authorized “to review the judgment or

order being appealed, subject to the provisions of this sec-

tion.” ORS 138.105(1). Generally, “[e]xcept as otherwise pro-

vided in [ORS 138.105], the appellate court has authority

to review any intermediate decision of the trial court.” ORS

138.105(3) (emphasis added). To the extent that “conviction”

is understood to mean the judicial determination of guilt as

reflected in the judgment entered on the plea (as our textual

analysis suggested), the appellate court’s lack of author-

ity to review “the validity of * * * a conviction based on the

defendant’s plea of guilty or no contest” in ORS 138.105(5)

is an exception to the general authority to review interme-

diate decisions in ORS 138.105(3). That is so because, if the

lack of authority to review a “conviction” in ORS 138.105(5)

did not also encompass intermediate trial court rulings that

led to the entry of the judgment containing that judicial

determination, there would have been no need to explicitly

486 State v. Colgrove

authorize review, as set out in ORS 138.105(5)(a), of “the trial

court’s adverse determination of a pretrial motion reserved

in a conditional plea of guilty or no contest under ORS

135.335.”

In addition, although ORS 138.105(5) precludes review

of “the validity of * * * a conviction based on the defen-

dant’s plea of guilty or no contest,” ORS 138.105(7) gener-

ally authorizes the appellate courts to “review any sentence

to determine whether the trial court failed to comply with

the requirements of law in imposing or failing to impose

a sentence,” subject to two exceptions. See ORS 138.105(8)

(governing reviewability of “a sentence imposed on convic-

tion of a felony committed on or after November 1, 1989”);

ORS 138.105(9) (precluding review of “any part of a sentence

resulting from a stipulated sentencing agreement between

the state and the defendant”). The term “sentence” is defined

to mean “all legal consequences established or imposed by

the trial court after conviction of an offense,” including, but

not limited to, a long list of consequences.4 ORS 138.005(5)

(emphasis added). Thus, the use of the term “conviction”

in the definition of “sentence” supports our understanding

that the term was intended to refer to a judicial determina-

tion of guilt reflected in a judgment for which a trial court

could impose a sentence. See McDonnell, 306 Or at 581

(“[T]he statutory scheme concerning the conviction of crim-

inal defendants * * * include[s] the following four distinct

events: (1) defendant’s act of pleading guilty or a jury’s act

in reporting a verdict of guilty; (2) acceptance by the trial

judge of the guilty plea or verdict; (3) conviction of the defen-

dant on the plea or verdict; and (4) pronouncement and entry

of defendant’s sentence.”).

4

ORS 138.005(5) provides:

“ ‘Sentence’ means all legal consequences established or imposed by the

trial court after conviction of an offense, including but not limited to:

“(a) Forfeiture, imprisonment, cancellation of license, removal from

office, monetary obligation, probation, conditions of probation, discharge,

restitution and community service; and

“(b) Suspension of imposition or execution of any part of a sentence,

extension of a period of probation, imposition of a new or modified condition of

probation or of sentence suspension, and imposition or execution of a sentence

upon revocation of probation or sentence suspension.”

Cite as 370 Or 474 (2022) 487

2. Preexisting common law and statutory framework

As noted, the context of a statute also includes

“the preexisting common law and the statutory framework

within which the statute was enacted.” Ward, 369 Or at 394

(internal quotation marks omitted); see State v. Cloutier, 351

Or 68, 100, 261 P3d 1234 (2011) (“Our analysis of [a statute]

is also informed by this court’s prior construction of that

statute or its predecessors.”); see also State v. Rusen, 369

Or 677, 685, 509 P3d 628 (2022) (recognizing principle that

context includes case law existing at the time of a statute’s

adoption). Because SB 896 retained significant features

of the preexisting common law and statutory framework

related to the concepts of “appealability” and “reviewabil-

ity” in cases involving guilty and no contest pleas, an under-

standing of that framework is an appropriate place to start

before we turn to the bill’s legislative history.

In a nutshell, the task of determining whether an

appellate court had jurisdiction of an appeal in a criminal

case and, if it did, whether the appellate court had authority

to review the issues that an appellant had raised on appeal,

was complex. To resolve those issues, appellate courts were

often placed in the position of applying multiple interrelated

statutes in ORS chapter 138 that, in turn, had been inter-

preted by the courts in myriad contexts over the course of

many years. Those statutes, and the case law interpreting

them, did not always clearly distinguish between the con-

cepts of “appealability” and “reviewability.”

That lack of clarity was particularly acute in the

context of cases in which defendants had pleaded guilty or

no contest and thereafter sought to appeal. In Cloutier, this

court described, in detail, the history of four interrelated

statutes in ORS chapter 138 that governed appealabil-

ity and reviewability following a guilty or no contest plea,

which were all eventually repealed by SB 896: (1) former

ORS 138.040 (2015), repealed by Or Laws 2017, ch 529, § 26

(generally governing appeals by defendants in criminal mat-

ters); (2) former ORS 138.050 (2015), repealed by Or Laws

2017, ch 529, § 26 (generally governing appealability and

reviewability following guilty or no contest pleas); (3) for-

mer ORS 138.053 (2015), repealed by Or Laws 2017, ch 529,

488 State v. Colgrove

§ 26 (governing appealable dispositions); and (4) former ORS

138.222 (2015), repealed by Or Laws 2017, ch 529, § 26 (gov-

erning appeal and review of sentences imposed for felonies

committed on or after November 1, 1989).5

As the court in Cloutier explained, in 1864, the “leg-

islature first conferred appellate jurisdiction to review a judg-

ment entered in a criminal case” in a statute that also per-

mitted review of intermediate trial court rulings. 351 Or at

76. Thereafter, the legislature enacted new sentencing laws

in 1905, and this court was eventually asked to determine

whether an appellate court could review a sentence imposed

under those laws after a defendant had pleaded guilty.

Id. at 77. The court concluded that the legislature had

implicitly conferred such authority in the 1864 statute that

authorized appeals from judgments of conviction, “which the

court held included convictions based on guilty pleas.” Id.

(describing State v. Lewis, 113 Or 359, 230 P 543 (1924), adh’d

to on reh’g, 113 Or 370, 232 P 1013 (1925)). “[T]he effect of a

guilty plea [was] to admit the facts as charged in the indict-

ment; but that [did] not preclude a defendant who [had] so

pleaded from advancing purely legal challenges to the law-

fulness of the conviction or the sentence that resulted.” Id.

(describing Lewis, 113 Or at 361-62). Then, in 1945, the law

changed when the legislature enacted a new statute that

explicitly gave defendants who pleaded guilty the right to

appeal, but “limited the nature of the issues that could be

the basis of such an appeal to the excessiveness of the sen-

tence.” Cloutier, at 77-78.

In 1953, the legislature revised and codified the

state’s then-existing statutes into the Oregon Revised

Statutes. Id. at 79. The legislature’s original 1864 grant

of appellate jurisdiction to review a judgment entered in a

criminal case was codified at former ORS 138.040, essen-

tially unchanged from the original version. Id. And the

5

As we will explain, the history of those statutes spans a period exceeding

150 years. Statutes were enacted, repeatedly amended, and at times recodified.

Further, the statutes were interpreted by the appellate courts at various points

in between. Our typical practice is to specify the date associated with a former

statute each time we refer to it. However, for convenience, we depart from that

practice here and, throughout the remainder of this opinion, refer generally to

each former statute without further specification.

Cite as 370 Or 474 (2022) 489

legislature’s 1945 authorization of appeals from judgments

on guilty pleas was codified at former ORS 138.050, also

essentially unchanged from its original version. Id.

This court was later asked to address the effect of

former ORS 138.050 in State v. Jairl, 229 Or 533, 368 P2d

323 (1962). In Jairl, the defendant appealed a judgment of

conviction based on a guilty plea, arguing that the trial

court had erred in failing to dismiss the charge against

him for violation of a state statute that required the timely

return of an indictment and in pronouncing sentence in the

absence of counsel. The defendant contended that, because

of those errors, he had been denied a fair trial as guaran-

teed by the state and federal constitutions. Id. at 538. The

court explained that former ORS 138.050 prohibited “appel-

late review of convictions based upon a plea of guilty except

to the limited extent granted by” the statute itself. Id. at

541. Noting that former ORS 138.040 was the only statute

with wording broad enough to encompass the defendant’s

challenge, the court reasoned that the restrictions in for-

mer ORS 138.050, in effect, had overruled the court’s earlier

decision in Lewis in which the court had held that former

ORS 138.040 permitted defendants who had pleaded guilty

to advance legal challenges to the lawfulness of the convic-

tion or the sentence that resulted from the plea. Id. at 539,

541.

Thereafter, the legislature amended former ORS

138.050 on multiple occasions to effect changes in the scope

of appealability and reviewability. See Cloutier, 351 Or at

80-90 (describing 1977 and 1985 amendments to former

ORS 138.050). In 1989, the legislature overhauled the state’s

sentencing laws. Id. at 90. As a result, “appeal and review of

sentences imposed for felonies committed after November 1,

1989, [was] governed by [former] ORS 138.222,” and “[for-

mer] ORS 138.040 and [former] ORS 138.050 [applied] only

to appeal and review of sentences for misdemeanor offenses.”

Id. at 91. In addition, the legislature sought “to make clear

that probation [was] among the categories of sentencing

decisions that [were] subject to the appellate jurisdiction of

the courts.” Id. As a result, the legislature amended both

former ORS 138.040 and former ORS 138.050 by replacing

the word “sentence” with the word “disposition,” and then

490 State v. Colgrove

enacted former ORS 138.053, which specified five types of

appealable dispositions. Id. at 91-92.

Although the scope of appellate court review of sen-

tences or dispositions in cases involving guilty or no con-

test pleas varied over the years, one aspect of the law had

remained constant: Former ORS 138.050 and former ORS

138.040 prohibited “a defendant’s challenge to a conviction—

as opposed to a sentence—when the defendant ha[d] pleaded

guilty.” State v. Clements, 265 Or App 9, 21, 333 P3d 1177

(2014), rev den, 356 Or 689 (2015); see also State v. Davis, 265

Or App 425, 431, 335 P3d 322 (2014), rev den, 356 Or 837

(2015) (“[Former] ORS 138.050 prohibits a defendant who

pleads guilty or no contest to either a misdemeanor or a fel-

ony from challenging his conviction on appeal.” (Emphasis

omitted.)).

As the foregoing history demonstrates, when the

legislature passed SB 896 in 2017, it had long been settled

that, when a defendant who had pleaded guilty or no con-

test appealed, the defendant could not challenge the convic-

tion. Over time, many legal challenges arising in different

contexts before the enactment of SB 896 were deemed to

be challenges to a defendant’s conviction that fell within

the bar just described. See, e.g., State v. Clevenger, 297 Or

234, 236, 683 P2d 1360 (1984) (entry of judgment without

making a proper inquiry into the adequacy of the factual

basis for the plea); State v. Woodard, 121 Or App 483, 485,

855 P2d 1139, rev den, 318 Or 26 (1993) (conviction for the

crime to which the defendant had pleaded as opposed to

another crime); State v. Balukovic, 153 Or App 253, 255-56,

258, 956 P2d 250 (1998) (revocation of defendant’s deferred

sentencing program for failure to comply with a purportedly

unlawful condition and failure to furnish a competent inter-

preter at the revocation hearing); State v. Anderson, 215 Or

App 643, 171 P3d 972 (2007) (lack of authority to enter a

judgment of conviction where the plea had a proviso that a

conviction would not be entered unless the defendant failed

to satisfy a condition and the court erroneously determined

that a condition had not been satisfied); State v. Brown,

225 Or App 207, 208, 199 P3d 890 (2009) (acceptance of an

involuntary plea); State v. Landahl, 254 Or App 46, 48-49,

292 P3d 646 (2012), rev den, 353 Or 788 (2013) (set aside of

Cite as 370 Or 474 (2022) 491

previous judgment dismissing DUII charge); Clements, 265

Or App at 23 (denial of motion to withdraw plea); State v.

Herrera, 280 Or App 830, 832, 383 P3d 301 (2016), rev den,

360 Or 852 (2017) (entry of judgment where the state had

failed to initiate revocation proceedings before the period of

conditional discharge had expired).

One legal challenge had “vexed” the Court of

Appeals over the years—namely, whether “a challenge to a

trial court’s decision not to merge multiple determinations

of guilt, resulting in the entry of a judgment reflecting mul-

tiple convictions, is a challenge to one or more of those con-

victions” that “cannot confer jurisdiction on [the] court in a

case in which the defendant had pleaded guilty or no con-

test.” Davis, 265 Or App at 433-34. In State v. Sumerlin, 139

Or App 579, 584-85, 913 P2d 340 (1996), the Court of Appeals

had ruled that such challenges were reviewable because

they pertained to whether a disposition exceeded the max-

imum allowable by law. Thereafter, the Court of Appeals

repeatedly adhered to its decision in Sumerlin, rejecting

arguments that that case had been wrongly decided. Davis,

265 Or App at 434.

In sum, at the time that the Oregon Law Commission

submitted SB 896 to the legislature for consideration in 2017,

the preexisting statutory and common law framework had

three salient features. First, a defendant who had pleaded

guilty or no contest could not obtain review of legal chal-

lenges pertaining to a conviction, but could obtain review of

challenges pertaining to a sentence, the scope of which was

governed by statute. Second, “conviction” was understood

broadly to encompass all decisions that led to the entry of

the judgment reflecting the trial court’s judicial determi-

nation of a defendant’s guilt. Third, legal challenges con-

cerning merger were reviewable. As we will explain—and

contrary to defendant’s contentions that SB 896 “is more

like the 1864 law” on reviewability and was intended to

“preclude[ ] review of the guilty finding but permit[ ] review

of other rulings”—the legislative history demonstrates an

intent to retain those three aspects of the preexisting frame-

work while making some changes to the scope of review of

sentencing decisions in misdemeanor cases.

492 State v. Colgrove

D. Legislative History

The primary legislative history is a work group

report that the commission submitted to the legislature,

explaining SB 896 in detail. Exhibit 37, Senate Committee

on Judiciary, SB 896, Apr 6, 2017 (Report of the Direct

Criminal Appeals Work Group on SB 896 (2017), Oregon Law

Commission) (Criminal Appeals Report). The work group had

been tasked with “reorganizing, streamlining, and clarify-

ing existing statutory provisions.” Criminal Appeals Report

at 2. In addition, the work group “propose[d] to codify some

case law, to modernize some older statutory provisions, and

to make a few substantive changes to the law, as outlined in

this Legislative Report.” Id. As Judge Stephen Bushong—a

Commissioner of the Oregon Law Commission and the work

group’s chair—explained to the legislature, the purpose of

the report was to provide “a roadmap for the practitioners

who utilize this * * * system,” because, “any time you change

a word or two in a * * * statute,” lawyers “think * * * there’s

some significance or what’s the meaning of that change” and

the work group “wanted to explain in some detail what [it]

did and why, so that it was clear and understandable.” Audio

Recording, Senate Committee on Judiciary, SB 896, Apr 6,

2017, at 1:28:47 (testimony of Judge Stephen Bushong),

https://olis.oregonlegislature.gov (accessed Nov 16, 2022).

Although defendant points to various memoranda

in appendices attached to the report to support her conten-

tion that the work group likely intended to make legal chal-

lenges reviewable (such as, e.g., an erroneous termination

of a defendant’s diversion), the report explained that “[t]he

memoranda reflect[ed] the views of the respective authors

of the memoranda and [did] not necessarily reflect the view

of all Work Group members or the Work Group collectively.”

Criminal Appeals Report at 3. Further, each memorandum

began with a disclaimer stating, “Disclaimer: Any legal

analysis or expression of opinion is that of the author of the

memorandum and do not necessarily reflect the views of the

Oregon Law Commission, the Work Group as a whole[,] or

its members.” See, e.g., id. at 29 (boldface omitted). Because

the memoranda did not reflect the intention of the work

group or the Oregon Law Commission, and because there

is no indication that the legislature intended to depart from

Cite as 370 Or 474 (2022) 493

the work group’s official position, we focus on the text of the

report itself as opposed to its appendices. See Gaines, 346

Or at 166 (“[T]he court may give whatever weight it deems

appropriate to the legislative history that a party offers.”).

According to the report, “the current statutory

scheme (and case law)” did not “always clearly distinguish”

between “appealability” (i.e., “a circuit court decision that

the Legislature has authorized the State or the defendant

to appeal, such as a judgment of conviction and sentence”)

and “reviewability” (i.e., “whether the appellate court may

consider and decide requests to review the validity of any of

the myriad decisions a trial court may make along the way

to rendering an appealable judgment or order”). Criminal

Appeals Report at 5-6. The report explained that those con-

cepts were not congruent for a variety of reasons, including

that, in the context of cases involving guilty or no contest

pleas, “the Legislature ha[d] disallowed appellate court

review of the trial court’s decision to enter a judgment of

conviction for [the] crime.” Id. at 6.

As pertinent to the interpretive issue in this case,

the report explained that the primary intent behind what is

now ORS 138.105(5) was to restate existing legal principles.

Paragraph (5)(a) was “intended to restate the principle cur-

rently found in [former] ORS 138.050(1)(a)”—that is, when a

defendant has “pleaded guilty or no contest to the offense of

which the defendant was convicted, on appeal, the appellate

court may not review the validity of the plea or the conviction,

except when the defendant, under ORS 135.335, has reserved

in writing an adverse pre-trial trial court ruling for appeal.”

Criminal Appeals Report at 20. Paragraph (5)(b) was “new

statutory law relating to merger of determinations of guilt.” Id.

Citing the Court of Appeals decisions in Sumerlin and Davis,

the report explained that, “conceptually, merger has to do

with whether the defendant is guilty of one or more offenses.”

Id. The report further explained that paragraph (5)(b)

reflected the current “appellate practice and authorize[d]

appellate court review of a merger issue,” subject to a new

limitation precluding review “if the trial court convicted the

defendant of multiple offenses pursuant to a plea agreement

in which the defendant agreed to plead guilty or no contest to

the convictions in question.” Id. at 20-21.

494 State v. Colgrove

Further, the report identified an intent to expand

the scope of review of sentences for misdemeanor offenses,

in what became ORS 138.105(7). Criminal Appeals Report

at 21; see id. at 9 n 4 (“[T]he Work Group does intend to

change the scope of review on appeal of sentences for misde-

meanor convictions.”). Relatedly, the report explained that

the work group had broadly defined the term “sentence”

to mean “all of the legal consequences a court may impose

based on a conviction, including post-judgment events such

as probation revocation” and that the nonexclusive list of

legal consequences specifically delineated in what is now

ORS 138.005(5)(a) and (b) were “derived from the list of legal

consequences described in ORS 137.071(1)(g) that a judge

may impose and, if so imposed, must be in the judgment

of conviction,” and “the list of ‘dispositions’ presently found

in [former] ORS 138.053(1),” respectively. Criminal Appeals

Report at 9.

In sum, consistently with the preexisting common

law and statutory framework, the work group intended to

“restate” the principle that a defendant who had pleaded

guilty or no contest could not obtain review of legal chal-

lenges to the judicial determination of guilt reflected in the

judgment on appeal, which encompassed intermediate trial

court decisions, as evidenced by the exception identified for

review of adverse pretrial rulings under ORS 135.335.6 The

work group also acknowledged that, conceptually, “merger”

relates to whether a trial court may convict a defendant of

one or more offenses, and it created an exception authoriz-

ing review, which essentially codified the existing appellate

practice. Finally, the work group retained appellate court

6

See also Criminal Appeals Report at 14 (“Historically, Oregon law has

imposed limits on a defendant’s opportunity to appeal when a conviction is based

on a plea of guilty or no contest. However, there are exceptions. [Former] ORS

138.050(1) currently allows a defendant to appeal from a judgment of convic-

tion based on a guilty or no contest plea if, under ORS 135.335, as a part of

the defendant’s plea, the defendant has reserved in writing an adverse pre-trial

court ruling for appeal. [Former] ORS 138.050(1) also allows an appeal where the

defendant wishes to take issue with the sentence imposed by the trial court.”);

id. at 20 (discussing the provision of the bill that became ORS 138.105(3), the

general authorization to review “any intermediate decision of the trial court”;

explaining that the text of that provision includes “a qualifier—‘except as pro-

vided in this section’—because, under current law, there are limits on the appel-

late courts’ authority to review intermediate trial court decisions, and the bill

carries forward those limitations” (brackets omitted)).

Cite as 370 Or 474 (2022) 495

authority to review challenges to sentences—the legal con-

sequences that a court may impose after conviction—but

expanded the scope of that sentence review in the context of

misdemeanor cases.

Defendant contends, however, that the legislative

history indicates that “the legislature did not retain the limits

of former ORS 138.050 or anything like them.” Specifically,

defendant points to aspects of the legislative history indi-

cating that the legislature understood that SB 896 “would

expand appellate review in misdemeanor cases.” From

that history, defendant reasons that it should “come as no

surprise that the bill would allow review in misdemeanor

cases that were not reviewable before, such as DUII

diversion cases.” See, e.g., Audio Recording, Senate Floor

Debate, SB 896, June 14, 2017, at 35:16 (statement of Sen

Floyd Prozanski), https://olis.oregonlegislature.gov (accessed

Nov 16, 2022) (“The measure provides more opportunity for

the appeal of misdemeanor cases, but, at this point, we’re not

sure exactly what impact it may have or not have. The num-

ber of appeals will increase.”). However, our understanding

of the legislative history is different than defendant’s.

Defendant’s contention finds its origin in discus-

sions concerning the expansion of the scope of review of mis-

demeanor sentences. The fiscal impact statement associated

with SB 896 indicated that the impact was “indeterminate”

and explained that “[t]he Department of Justice (DOJ) [had

noted] that[,] because the measure provides for more oppor-

tunity to appeal misdemeanor cases, there is likely to [be]

some impact on the Appellate Division’s Defense of Criminal

Convictions program.” Fiscal Impact Statement, SB 896,

Apr 5, 2017.

In addressing the potential, indeterminate fiscal

impact, then-Appellate Commissioner James W. Nass—

who had authored the Criminal Appeals Report as the

work group’s reporter—acknowledged that the change in

the scope of review of misdemeanor sentences could lead to

an increase in the number of cases. Audio Recording, Joint

Committee on Ways and Means Subcommittee on Public

Safety, SB 896, June 5, 2017, at 22:58 (testimony of James

W. Nass), https://olis.oregonlegislature.gov (accessed Nov 16,

496 State v. Colgrove

2022). However, Nass explained that such an increase was

“not likely” because misdemeanor sentences cannot exceed

one year in length and cases challenging such sentences

therefore “usually become moot” while an appeal is pending.

Id. at 23:02. According to Nass, the expansion of the scope of

review of sentences in misdemeanor cases

“was one of the contentious issues that the representatives

of the district attorneys’ office[s], defense bar, and then the

Office of Public Defense Services and Solicitor General’s

Office * * * discussed and worked their way through. I was

not a party to that, but the representation at the end of the

day was that they all could live with this.”

Id. at 24:38. In conclusion, Nass commented, the work group

“certainly would not have advocated for making a change in

the law if [the group] thought it would substantially increase

the court’s workload.” Id. at 24:05. Aaron Knott, Legislative

Director for the Department of Justice, essentially expressed

agreement with Nass’s assessment of the potential fiscal

impact, id. at 27:35, as did Ernest Lannet, Chief Defender

of the Criminal Appellate Section of the Appellate Division

of the Office of Public Defense Services and a member of the

work group, who testified that “Commissioner Nass has * * *

represented what has gone on and the process and where we

ended up,” id. at 30:38.

In the light of that history, defendant is correct

that the legislature understood that SB 896 could cause an

increase in the number of appeals in misdemeanor cases.

However, the history clearly demonstrates that any such

increase would be attributed to the expansion of the scope

of review of sentences in appeals involving misdemeanors.

Thus, defendant’s reliance on that history to conclude that

the legislature intended to permit defendants who plead

guilty or no contest to challenge their convictions on appeal

is misplaced.

The foregoing analysis demonstrates that defen-

dant’s proposed reading of “conviction” in ORS 138.105(5)

to mean “finding of guilt” is untenable when the text is

examined in context and in light of its legislative history.

We conclude that the legislature intended the term “con-

viction” to refer to the trial court’s judgment—that is, the

Cite as 370 Or 474 (2022) 497

judicial determination of guilt as reflected in the judgment

entered on the plea, which encompasses intermediate trial

court rulings that led to the entry of the judgment contain-

ing that judicial determination. Accordingly, we further

conclude that the legislature intended for ORS 138.105(5) to

preclude a defendant who has pleaded guilty or no contest

from obtaining appellate review of legal challenges to the

conviction in the judgment entered in the trial court.

III. CONSTITUTIONAL CHALLENGES

That brings us to defendant’s final contention—viz.,

that “interpreting ORS 138.105(5) to preclude review in

this case would render the statute unconstitutional” under

the state and federal constitutions, and that, to avoid such

a constitutional problem, we should adopt her construction

of ORS 138.105(5). See State v. Kitzman, 323 Or 589, 602,

920 P2d 134 (1996) (“[W]hen one plausible construction of a

statute is constitutional and another plausible construction

of a statute is unconstitutional, courts will assume that the

legislature intended the constitutional meaning.”). We turn

first to defendant’s arguments concerning the state consti-

tution. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123

(1981) (“The proper sequence is to analyze the state’s law,

including its constitutional law, before reaching a federal

constitutional claim.”).

A. Oregon Constitution

Relying on Article VII (Amended), section 3,7 defen-

dant contends that “the legislature can control how a party

initiates an appeal, but it cannot limit the court’s powers

7

Defendant’s arguments are based primarily on the second and third sen-

tences of Article VII (Amended), section 3, which provide:

“[2] Until otherwise provided by law, upon appeal of any case to the supreme

court, either party may have attached to the bill of exceptions the whole testi-

mony, the instructions of the court to the jury, and any other matter material

to the decision of the appeal. [3] If the supreme court shall be of opinion,

after consideration of all the matters thus submitted, that the judgment

of the court appealed from was such as should have been rendered in the

case, such judgment shall be affirmed, notwithstanding any error committed

during the trial; or if, in any respect, the judgment appealed from should be

changed, and the supreme court shall be of opinion that it can determine

what judgment should have been entered in the court below, it shall direct

such judgment to be entered in the same manner and with like effect as

decrees are now entered in equity cases on appeal to the supreme court.”

498 State v. Colgrove

and duties on appeal” and that appellate courts have “the

power and duty to review the lawfulness of trial court judg-

ments whenever the legislature has authorized a party to

appeal the judgment.” According to defendant, “[t]he distinc-

tion between appealability and reviewability is key”:

“When the legislature makes decisions about appealabil-

ity, its power over the appellate process is at is greatest—it

alone decides whether to authorize a party to appeal. A dis-

pute about whether a particular judgment or order should

be appealable is a dispute between the legislature and the

party who wishes to appeal, not the judiciary.

“But when the legislature makes decisions about review-

ability, its power is at its weakest—it is limiting the power

of the court to adjudicate a case that is properly before the

court. A dispute over whether an appellate court should

affirm or reverse a judgment is a dispute between the par-

ties and the court, in which the legislature should have lit-

tle or no role.”

However, as we will explain, defendant’s argument rests on

a faulty premise—namely, that the right to appeal a judg-

ment or order implicates only appealability.

Contrary to defendant’s position, in State v. Nix, 356

Or 768, 772, 345 P3d 416 (2015), we explained that the right

to appeal, which is a legislative prerogative, encompasses

both “appealability” and “reviewability”:

“There is no inherent right to an appeal. State v. McAnulty,

356 Or 432, 438, 338 P3d 653 (2014)[, cert den, 577 US 829

(2015)]. Instead, the right to appeal must be statutorily

authorized. Waybrant v. Bernstein, 294 Or 650, 653, 661

P2d 931 (1983). The statute authorizing an appeal may

include limitations on the issues that may be reviewed in

an appeal. Logsdon v. State and Dell, 234 Or 66, 70, 380

P2d 111 (1963).”

See also State v. Endsley, 214 Or 537, 546, 331 P2d 338

(1958) (“ ‘The legislature * * * has the power to define in what

cases, and under what circumstances, and in what manner,

an appeal may be taken to this court.’ ” (Quoting City of

Portland v. Gaston, 38 Or 533, 535, 63 P 1051 (1901)). Before

the enactment of SB 896, statutes authorizing an appeal

often governed both “appealability” and “reviewability,” and

Cite as 370 Or 474 (2022) 499

the grants were often coextensive. The legislature’s decision

in SB 896 to express those concepts in more than one statute

does not affect the long-standing principle that the legisla-

ture may limit the issues that a court may review on appeal.

Defendant further contends that Article VII

(Amended), section 1, in providing that “[t]he judicial power

of the state shall be vested in one supreme court and in

such other courts as may from time to time be created by

law,” thus prohibits legislative limitations on reviewabil-

ity because such statutes “interfere[ ] with the judiciary

in a manner which prevents or obstructs the performance

of its irreducible constitutional task, adjudication.” Circuit

Court v. AFSCME, 295 Or 542, 550, 669 P2d 314 (1983). In

AFSCME, however, we explained that “[t]here can be no

question that the legislature may enact laws prescribing the

exercise of judicial powers.” 295 Or at 549. “Only an outright

hindrance of a court’s ability to adjudicate a case” or “the

substantial destruction of the exercise of a power essential

to the adjudicatory function will prompt an [A]rticle VII,

section 1[,] violation.” Id. at 551 (internal citations omitted).

We do not understand ORS 138.105(5) to affect the court’s

adjudicative function. The limits on review in that statute

affect what issues the court is authorized to review, not how

the court may resolve them. Cf. City of Damascus v. State of

Oregon, 367 Or 41, 68-69, 472 P3d 741 (2020) (declining leg-

islature’s instruction to decide reviewable issues in a partic-

ular order). Although defendant is correct that an appellate

court will “affirm” a judgment to the extent that an issue is

unreviewable, that reflects nothing more than the court’s

understanding of the proper disposition when an issue is not

within the scope of review on appeal. Thus, we conclude that

ORS 138.105(5) does not violate the Oregon Constitution as

defendant contends.

B. United States Constitution

Defendant also contends that, if ORS 138.105(5)

bars review of a decision to terminate diversion, the statute

violates the Fourteenth Amendment to the United States

Constitution, which provides that “[n]o State shall * * *

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

500 State v. Colgrove

the equal protection of the laws.” We have considered defen-

dant’s arguments and reviewed the cases she has cited in

support of them. Ultimately, defendant has not presented

a sufficiently well-developed argument to persuade us that

the statute is unconstitutional.

IV. CONCLUSION

We have examined the text of ORS 138.105(5) in

context—which included a comprehensive review of the pre-

existing common law and statutory framework within which

the statute was enacted—along with the statute’s legislative

history. Having done so, we conclude that ORS 138.105(5)

precludes a defendant who pleads guilty or no contest from

obtaining appellate review of legal challenges to the “convic-

tion” in the judgment entered in the trial court. As used in

that statute, the term “conviction” refers to the trial court’s

judgment—that is, the judicial determination of guilt as

reflected in the judgment entered on the plea, which encom-

passes intermediate trial court rulings that led to the entry

of the judgment containing that judicial determination.

The practical effect of the reviewability bar in ORS

138.105(5) will vary depending on context. In the context

of DUII diversion, ORS 138.105(5) precludes a defendant

from obtaining direct appellate review of legal rulings made

during the lengthy post-plea diversion process. However, it

appears that, if a trial court dismisses a defendant’s DUII

charge, the state is permitted to appeal and obtain review

of the court’s post-plea rulings that led to the dismissal.

This case highlights that distinction, which appears to be

a function of the interrelationship between the DUII diver-

sion scheme and the law governing criminal appeals. The

inability of a defendant to obtain direct appellate review

of a trial court’s post-plea legal decisions during the DUII

diversion process is curious, particularly when the legisla-

ture has enacted a detailed statutory scheme that affords

DUII defendants various rights and, in some circumstances,

imposes duties on the trial courts. Now that the practical

interrelationship between the DUII diversion scheme and

the law governing criminal appeals is clearly in focus, the

legislature, if it chooses to do so, can revisit and recalibrate

its enactments and permit defendants who plead guilty or

Cite as 370 Or 474 (2022) 501

no contest to DUII to challenge on direct appeal the legal

rulings that were made as part of the post-plea diversion

process as long as the law that it enacts is consistent with

any limits imposed by state and federal law.

The decision of the Court of Appeals is affirmed.

The circuit court’s judgment of conviction is affirmed in part

and vacated in part, and the case is remanded to the circuit

court for further proceedings. The circuit court’s judgment

for the costs of appointed counsel is reversed.