State v. Rusen

Under ORS 138.105(9), “The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant."

The State petitioned for review to determine whether appellate court review was permitted pursuant to ORS 138.105(9). Defendant was sentenced to three years supervised probation through a plea agreement with the State. When Defendant violated, the judge revoked probation and imposed a consecutive sentence, which both parties had stipulated as a possible sanction for a probation violation. Under ORS 138.105(9), “The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant.” The Court conducted a statutory construction analysis of the contested portion of ORS 138.105(9). The Court relied on its reasoning from State v. Kephart, 320 Or 433 (1994) that the legislature intended “a narrower class of agreements” to be barred from review. The Court reasoned that the agreement allowed for both the trial court to impose a sentence for probation violation and for Defendant to argue against consecutive sentences if imposed. The Court concluded that the parties did not agree to the sentence itself but to how it would be determined, permitting the court’s review in case of disagreement. Decision of the Court of Appeals affirmed; circuit court judgment reversed and case remanded for further proceedings.