State v. Lavitsky

*518 DE MUNIZ, J.,

concurring.

In this case, the sentencing court imposed on defendant a presumptive sentence of 65 months for first-degree manslaughter under the sentencing guidelines. The state appeals, arguing that the trial court erred in entering an amended judgment nunc pro tunc to a date several years earlier — in fact, to a date before the victim’s death. I agree with the majority that that was error and that the judgment must be modified. I write separately to discuss why the issue in this case is reviewable.

As the majority notes, a presumptive guidelines sentence is not reviewable. ORS 138.222(2)(a). 171 Or App at 510. In State ex rel Huddleston v. Sawyer, 324 Or 597, 601-08 , 932 P2d 1145 , cert den 522 US 994 (1997), the court held that if review is barred by ORS 138.222(2)(a), that bar cannot be circumvented by nonetheless permitting review under ORS 138.222(4)(a), which provides that an appellate court may review a claim that a “sentencing court failed to comply with the requirements of law in imposing or failing to impose a sentence.” The majority correctly concludes that this case is distinguishable from Huddleston because Huddleston indicates that subsection (4)(a) does not permit review where the issue is “the number of months of incarceration to which [a defendant] has been sentenced under the presumptive sentence portion of the felony sentencing guidelines,” because that is “the precise subject covered by ORS 138.222(2)(a)[.]” Id. at 607 . Here, the state is not arguing that the number of months of incarceration to which defendant has been sentenced was incorrect. Rather, the state argues that the court had no authority to order the sentence imposed in this case in 1996 to be deemed to have commenced in 1994. Thus, the objection is not to the length of the presumptive sentence, but rather to when defendant began to serve the presumptive sentence. The majority correctly concludes that that is not a challenge to the presumptive sentence itself.

The difficult issue, however, is whether our own case law precludes review of the issue presented under ORS 138.222(4)(a). In State v. Sanchez, 160 Or App 182, 184 , 981 P2d 361 , rev den 329 Or 318 (1999), the defendant challenged the validity of his sentence on the ground that statutory *519 requirements were not followed regarding qualification of a Spanish-speaking interpreter. The defendant asserted that the issue was reviewable because the “sentencing court failed to comply with the requirements of law in imposing or failing to impose a sentence.” ORS 138.222(4)(a). This court concluded that the asserted error was not reviewable because ORS 138.222(4)(a) concerns only “the sentence itself, not procedures that lead to the actual imposition of the sentence.” Sanchez, 160 Or App at 186 . In reaching that conclusion, we relied on State v. Henderson, 116 Or App 604 , 832 P2d 459 (1992) , mod on other grounds 124 Or App 426 , 861 P2d 406 (1993) .

In Henderson, the defendant initially was sentenced to a presumptive sentencing guidelines sentence for murder. Several days later, the court concluded that the defendant could receive a life sentence under ORS 163.115 for that crime, vacated the original guidelines sentence, and imposed sentence under ORS 163.115. The defendant argued on appeal that the court lacked authority to vacate the original sentence. This court refused to consider the defendant’s argument:

“His argument does not come within the scope of our review. Under ORS 183.222(4)(a), in any appeal we may review a claim that the sentencing court failed to comply with the sentencing requirements. However, that subsection is subject to the general provision that a sentence may be reviewed under the provisions of ORS 138.222. ORS 138.222(1). Defendant’s argument challenges the vacation of the original sentence, not the sentence.” 116 Or App at 606 . (Emphasis in original.)

In sum, under ORS 138.222(2)(a) and ORS 138.222(4)(a) as interpreted in Huddleston , we cannot review the actual length of a presumptive guidelines sentence. But under some of our own cases concerning ORS 138.222(4)(a), we cannot review anything but the sentence itself, i.e, the length of the sentence. The majority fails to recognize the tension created by our case law. The majority states:

“The state’s claim here is that imposition of an amended sentence was beyond the court’s authority under [ORS 138.083] and, thus, that the sentence itself was unlawful. That contention falls squarely within the terms of what we *520 may review under ORS 138.222(4)(a) — that is, a claim that the sentencing court ‘failed to comply with requirements of law in imposing * * * a sentence.’ ” 171 Or App at 513.

That statement is not reconcilable with Henderson. In this case, as in Henderson, a party appealed, arguing that the court lacked authority to amend a sentencing judgment. In Henderson, we stated that that issue was not reviewable under ORS 138.222(4)(a). In this case, we state that that issue is reviewable under ORS 138.222(4)(a). Clearly, both cannot be correct.

For the reasons stated below, I conclude that Henderson is an anomaly and should be overruled. 1 It is inconsistent with several of our subsequent cases. A comparison of the issue presented here with the issue presented in State v. Stokes, 133 Or App 355 , 891 P2d 13 (1995), is instructive. In Stokes , the defendant received two presumptive guidelines sentences based on two separate crimes. The trial court made findings pursuant to ORS 137.123 as to why the sentences should be served consecutively rather than concurrently. Id. at 357 . The defendant appealed, arguing that the court erred in imposing the sentences to run consecutively. The state argued that review was barred under ORS 138.222(2)(a) because the defendant received presumptive guidelines sentences. We disagreed and concluded that the question presented was reviewable under ORS 138.222(4)(a) because the defendant’s challenge was not to the presumptive terms, but to the requirement that the terms be served consecutively. Id. The present case is analogous in many ways. The state on appeal is not taking issue with the length of the presumptive sentence but is taking issue with the court’s decision concerning when the term is to be served.

Likewise, State v. DeCamp, 158 Or App 238 , 973 P2d 922 (1999), is irreconcilable with Henderson and lends support to the conclusion that the issue presented in this case is *521 reviewable. 2 In DeCamp , as in this case and in Henderson, an appellant argued that a trial court lacked authority to modify a sentence. Id. at 240. We concluded that ORS 138.222(4)(a) “provides that in any appeal from a felony conviction, this court may review a claim that the court failed to comply with the requirements of law in imposing the sentence. Defendant’s challenges are in that category and, therefore, are within the scope of what we may consider.” Id.

If we follow Stokes and DeCamp , the issue in this case is reviewable under ORS 138.222(4)(a); if we follow Henderson, it is not. Stokes and DeCamp are more recent and provide sound analyses of why the issues presented are reviewable. They are not so expansively written as to permit review of issues that are otherwise unreviewable under other portions of ORS 138.222 or other statutes pertaining to reviewability. They allow this court to address sentencing errors involving failure to comply with law. Henderson, on the other hand, is a one-page decision that contains no reasoning and no citation to authority for its conclusion that a challenge to a court’s authority to modify a sentence is not reviewable under ORS 138.222(4)(a). This court should take this opportunity to overrule Henderson rather than leaving confusing and irreconcilable case law on the books that will undoubtedly lead to further confusion and strife about what sentencing issues are or are not reviewable on appeal.

Armstrong and Wollheim, JJ., join in this concurrence.

I would also suggest that State v. Sanchez, 160 Or App 182 , 981 P2d 361 , rev den 329 Or 318 (1999), to the extent that it relies on the above-quoted material from Henderson, should be disavowed. However, because the reviewability issue presented in Sanchez differed so materially from the reviewability issue presented in this case and in Henderson, I am not prepared to state that the result in Sanchez was incorrect but merely to assert that its reliance on Henderson was misplaced.

The majority implicitly acknowledges in a footnote the tension between all of these cases but fails to resolve the problems created by diverging lines of cases that point in opposite directions. See 171 Or App at 514 n 5.