State v. Webster

An issue of law reasonably in dispute is not an apparent error that satisfies the second prong of the test for "plain error" stated in State v. Brown, 310 Or 347 (1990) (to qualify as “plain error,” an asserted error must be (1) one of law; (2) it must be apparent, i.e., the point must be obvious, not reasonably in dispute; and (3) it must appear on the face of the record).

After a contested hearing, the trial court found that defendant had violated the terms of his probation, and entered an order revoking defendant’s probation. In addition, it imposed a sanction of 28 months of incarceration with 24 months of post-prison supervision. Defendant did not object to this judgment at the hearing. On appeal, defendant, relying on State v. Hicks, 249 Or App 196, rev den, 352 Or 341 (2012), argued that Oregon case law distinguishes statutorily mandated sentences from presumptive sentences. Based on that distinction, defendant argued the trial court exceeded the maximum revocation sanction authorized by the law because OAR 213-010-0002(2), the commission’s rule governing probation sanctions, did not authorize the statutory presumptive sentence in ORS 137.717(1). The state argued that, “to the extent the defendant’s argument raises a cognizable claim of error, any such error is not obvious or beyond dispute and, therefore, was not plain.” The Court of Appeals affirmed the trial court’s judgment and sanctions on defendant’s probation because defendant did not preserve his claim of error, and the issue of law defendant raised was “reasonably in dispute.” Therefore, the trial court did not plainly error reliance on ORS 137.717(1). Affirmed.