State v. Neill

Where defendant and the state enter a plea agreement, and pursuant that agreement, agree to a stipulated sentence in the event probation is violated, that sentence is precluded from appeals under ORS 138.105(9) because defendant had explicitly agreed to that sentence in the event of that condition.

Defendant appealed the supplemental judgement, claiming the court plainly erred in imposing sentences that exceed the maximum sentence allowed under OAR 213-010-0002(2). Defendant argued the stipulation did not acknowledge that it would be unlawful under ORS 138.105(9). Alternatively, defendant argued that if ORS 138.105(9) precluded appellate review, it violated the federal and state constitutions. The Court held that ORS 138.105(9) rightfully precluded appellate review of defendant’s supplemental sentence. ORS 138.105(9) is applicable here because defendant agreed to the stipulation. Defendant also argued that ORS 135.105(9) applied exclusively to listed items, not stipulations for future probation revocation sanctions. The Court held that where parties have agreed to probation departing from a presumptive sentence, and defendant stipulated the court could impose consecutive terms as sanction for revocation, appellate review is rightfully precluded. If in a plea agreement, defendant and the state agree to later determine sentencing, appellate review may be appropriate, but that is not so here. Defendant explicitly agreed to imposition of a sentence upon violating probation. AFFIRMED.