State v. Nolasco-Lara

The Court may choose not to exercise its discretion regarding sentences that meet the test for plain error if the Defendant encouraged the trial judge to impose a sentence and strategically chose not to object to the sentence.

Defendant appealed from a judgment sentencing him to 70 months of incarceration and five years of post-prison supervision. Defendant argued that this sentence exceeded the statutory maximum of 120 months for a class B felony. The state countered that the sentence was unreviewable under ORS 138.222(2)(d), which precludes review of stipulated sentencing agreements. The Court disagreed that the decision was unreviewable, because the plea agreement was not a stipulated sentencing agreement since neither the state nor the Defendant stipulated to the specific terms of the sentence. The Court then determined that the error met the test for plain error because it was (1) a legal issue, (2) obvious and not subject to dispute, and (3) apparent on the face of the record. Although the Court determined that the error was reviewable, it chose not to exercise its discretion because it found that the Defendant encouraged the judge to consider imposing the sentence, and that the defendant may have made a strategic choice not to object to it. The Court noted that a Ballot Measure 11 count was dismissed pursuant to the agreement, along with three misdemeanors, thereby giving the Defendant a substantial benefit by accepting it. Affirmed.