State v. Hammond

EDMONDS, J.,

concurring in part, dissenting in part.

The majority’s interpretation of the “preservation of error” requirement in ORAP 5.45(1) with regard to defendant’s second assignment of error is perplexing. 1 Nothing in the text of the rule requires a “contemporaneous” objection as *588 the majority posits, and the majority cites no other authority for its imposition of that novel requirement. Moreover, the majority concedes that the “practical and prudential concerns that underlie our preservation requirements may well have been satisfied here — the trial court did, in fact, have the opportunity to address and correct the asserted antecedent error.” 218 Or App at 586. In fact, the objectives of the preservation requirement were satisfied in a practical way in this case, as discussed more fully below. ORAP 5.45(1) embodies a policy of pragmatism. That policy is put aside by the majority’s reasoning in favor of a hypertechnical application of the rule, and, for that reason, I dissent from the majority’s disposition of the second assignment of error, while concurring with its analysis regarding the first assignment of error.

To reiterate the facts and the applicable law: ORS 137.750 mandates that, when a court sentences a defendant to a term of incarceration, the court shall order, on the record in open court as part of the sentence imposed by the court, that the defendant be considered for alternative sentencing programs “unless the court finds on the record in open court substantial and compelling reasons to order the defendant not be considered for such leave, release or programs.” The trial court did not comply with ORS 137.750, even though defendant expressly asked it to make the findings required by the statute. Sentencing in this case was held on January 24,2006. The sentencing judgment reflecting the January 24, 2006, hearing was entered January 26,2006. Defendant filed a written motion requesting that the court comply with the provisions of ORS 137.750 on January 27, 2006, or one day after the entry of the judgment. The trial court denied the motion, even though ORS 137.754 provides, in part:

“Notwithstanding any other provision of law, a sentencing court retains authority after entry of judgment of conviction to modify its judgment and sentence to comply with the requirements of ORS 137.750 or 137.752 when:

* * * *

“(3) The judgment and sentence failed to comply with the provisions of ORS 137.750 or 137.752.”

To preserve an issue for appeal, “a party must provide the trial court with an explanation of his or her objection *589 that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343 , 15 P3d 22 (2000). Here, defendant brought the court’s error to its attention while the court had authority, pursuant to ORS 137.754, to correct the error. Defendant did not file his notice of appeal in this case until February 23, 2006. At the time that defendant filed his motion, asking the court to make the findings required by ORS 137.754, the trial court continued to exercise exclusive jurisdiction over the case, and there is no prudential reason why the court could not have complied with the statute’s requirements, had it been so inclined.

ORS 137.754 vests a trial court with continuing authority after entry of a judgment of conviction to modify its judgment and sentence to comply with the requirements of ORS 137.750 or ORS 137.752. The beginning point of the legislature’s grant of authority to the trial court is the date of the entry of the initial judgment. The end of that grant of authority to trial courts occurs when the sentence has been completed. In other words, the legislature has granted trial courts limited jurisdiction during that period of time to comply with the unambiguous statutory requirement so that those administering the execution of sentences will be able to calculate the duration of sentences and determine how they are to be served. Under the majority’s reasoning, that grant of jurisdiction in defendant’s case becomes meaningless because he has been denied the ruling in the trial court to which the law may entitle him and because this court refuses to review his claim of error on preservation grounds. At best, defendant is left with a remedy under the Post-Conviction Relief Act, which means additional delay and a continuing ineligibility for alternative sanctions, all resulting in additional expense to the public. In that light, the legislature could not have contemplated the result reached by the majority, particularly in light of its use of the phrase, “Notwithstanding any other provision of law” in ORS 137.754.

Not only is the majority’s reasoning contrary to the legislature’s intent, it is also contrary to principles of preservation established by the Supreme Court. The Supreme Court

*590 “has indicated that the rules pertaining to preservation of error in trial courts are intended to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.”

Davis v. O’Brien, 320 Or 729, 737 , 891 P2d 1307 (1995). One of the goals of requiring a party to preserve an issue in a lower tribunal is to afford an opportunity to the tribunal to “correct the error immediately, if correction is warranted” in order to afford judicial economy. Wyatt, 331 Or at 343 . “Judicial economy’ is certainly not achieved in this case as the result of the majoritys decision.

As importantly, the Supreme Court has never identified a “contemporaneous” objection as a goal of the prudential preservation of error requirement that is independent of the rule’s policy objectives. To be sure, in some situations, the goals of preservation will not be satisfied in the absence of an immediate objection. For example, motions for mistrial must ordinarily be made immediately to preserve a claim of error. E.g., State v. Barone, 328 Or 68, 90 , 969 P2d 1013 (1998), cert den, 528 US 1135 (2000) (“To preserve error, a motion for a mistrial must be made timely, i.e, it must be made as soon as the objectionable statement or event occurs.”). But the rule in that specific context exists only because it is necessary to meet the other objectives of preservation.

So, for example, as we explained in State v. Vogh, 179 Or App 585, 591 , 41 P3d 421 (2002),

“[w]hen, as here, a defendant does not call the matter to the trial court’s attention until after it is too late for the trial court to take corrective action, and defendant offers no explanation for why the issue was not or could not have been raised earlier, a denial of a motion for mistrial is not error.”

But even then, we or the Supreme Court have never insisted on a strict rule that a motion for a mistrial must always be made immediately when the objectionable comment is made in order to preserve a claim of error. See, e.g., State v. Cunningham, 197 Or App 264 , 275 n 7, 105 P3d 929 , rev den, 339 Or 406 (2005) (“We assume, for the sake of argument, that the mistrial motion was timely despite the passage of a day, given that the court adjourned immediately after *591 excluding [the witness’s] testimony and denying defendant’s oral mistrial motion and that the written motion was filed the following morning.”).

In short, as the majority recognizes, the goals of the preservation requirement are satisfied in this case. That said, no policy is served by the majority’s creation of an artificial distinction between a “contemporaneous” and a “retroactive” objection based on the facts of this case. Rather, preservation must always be decided on a case-by-case basis, depending on the circumstances of the particular case and whether the objectives of preservation are satisfied. Thus, the “line drawing” exercise based on policy objectives, that ORAP 5.45(1) requires us to determine if an issue is preserved, is satisfied by the majoritys necessary acknowledgment that defendant made his objection to the lack of findings by the court before he filed his notice of appeal and at a time when the trial court had authority to conform the judgment to the requirements of the statutes. 2 Unlike in situations where the trial court must act expeditiously to “unring a bell,” the trial court in this case could have easily corrected its error when the error was brought to its attention, and there is no underlying preservation policy reason not to review it.

The majority also relies on our holding in State v. Layton, 163 Or App 37 , 986 P2d 1221 (1999), rev den, 330 Or 252 (2000), in support of its reasoning. That case was decided under ORS 138.083(l)(a), which provides, in part, that “[t]he sentencing court shall retain authority irrespective of any notice of appeal after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in *592 the judgment.” Like ORS 137.750 to 137.754, ORS 138.083 constitutes a limited grant of jurisdiction to trial combs to address certain specific issues that could arise during the time that a criminal sentence is being executed, and thus, it can be reasonably argued that the policy underlying that statute is similar to the policy underlying the statutes applicable to this case.

ORS 137.754, however, contains a phrase that ORS 138.083 does not contain. ORS 138.083(l)(a), by its express terms, confers jurisdiction on trial courts “irrespective of any notice of appeal.” In contrast, ORS 137.754 is much broader in its application because it requires trial courts to modify judgments to comply with ORS 137.750 and ORS 137.752, “[notwithstanding any other provision.” The word “notwithstanding” in ORS 137.754, is not inconsequential regarding the legislature’s intent. It embodies a legislative intent that ORS 137.750 to 137.754 constitute a self-contained statutory scheme that is discrete from any other law. In other words, different statutes with different language require separate consideration of the legislature’s intent in order to construe them correctly.

But even if the above distinction in the language of ORS 138.083(1) is deemed a distinction without a difference, I would hold that Layton was incorrectly reasoned when considered in light of the objectives of the requirement of preservation. In Layton, the defendant argued that the sentence imposed by the court was unlawful because it added two years of post-prison supervision to five years of incarceration for a Class C felony. The defendant first raised that issue in the trial court under ORS 138.083 at a post-trial proceeding. We held that the issue therefore was not preserved. 163 Or App at 41 . We explained, “[w]e do not understand how raising the issue after trial somehow ‘cured’ defendant’s failure to raise it at the proper stage of the proceedings, that is, at the sentencing hearing.” Id. The analytical mistake in Layton is the same mistake the majority makes here — failing to apply the policy objectives of ORAP 5.45(1) as the basis for determining whether a defendant preserved a claim of error.

For all of these reasons, I dissent to the majority’s holding that defendant did not preserve his second assignment of error.

Carson, S. J., joins in this dissent.

ORAP 5.45(1) provides:

“A question or issue to be decided on appeal shall be raised in the form of an assignment of error, as prescribed in this rule. Assignments of error are required in all opening briefs of appellants and cross-appellants. No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record.”

(Emphasis added.)

According to the majority, emphasizing the fact that defendant filed and the trial court denied his motion before he filed his notice of appeal is “illusory” because the “logical extension” of that reasoning is that “so long as the trial court had an opportunity to correct its error before we consider the appeal, the matter would be deemed ‘preserved.’ ” 218 Or App at 586. But interpreting ORAP 5.45(1) to permit such an issue to be preserved for purposes of direct appeal at any time before the notice of appeal is filed, and before the trial court loses jurisdiction over the case, furthers the policy of judicial economy by consolidating all issues for purposes of appeal that are properly cognizable on direct appeal, rather than promoting a policy of “piece-meal” appeals that could arise from the trial court’s exercise of continuing limited jurisdiction under ORS 137.754.