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Plain Error Appeals and 138.083 motions

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by: Ryan • November 21, 2012 • no comments

ORS 138.083 provides:

(1) The 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 the judgment. The court may correct the judgment either on the motion of one of the parties or on the court's own motion after written notice to all the parties. If a sentencing court enters an amended judgment under this section, the court shall immediately forward a copy to the appellate court. Any modification of the appeal necessitated by the amended judgment shall be made in the manner specified by therules adopted by the appellate court.

I have reason to believe the AG's office is now arguing that the COA should decline to reverse a sentence -- even when the error is plain -- if the defendant did not seek to correct the error under ORS 138.083.

This position is not unprecedented. State v. Arellano, 149 Or App 86, 92-93, 941 P2d 1089 (1997), rev dismissed, 327 Or 555 (1998) (declining to address unpreserved claim of error related to term of imprisonment because the defendant did not seek correction under ORS 138.083); State v. Graham, 143 Or App 85, 88, 923 P2d 664 (1996) (this court will no longer address unpreserved error regarding post-prison supervision if defendant failed to seek correction under ORS 138.083); State v. Slawson, 123 Or App 573, 576, 860 P2d 876 (1993) (declining to address unpreserved claim of error because the defendant failed to avail himself of the statutory remedy or explain why he could not).

I do not know how OPDS plans to address this issue. But it would certainly help if there were open lines of communication between the trial attorney and the appellate attorney. It's a sensitive subject, since this problem -- by definition -- means the trial attorney screwed something up. So the trial attorney needs to suck it up, and the appellate attorney should also have a thick skin, since sometimes it's harder to point out a mistake by the trial attorney than it is for the trial attorney to hear it. We all need to be less senstive.

As a reminder, if you've got a client facing a potential BM57 sentence, based on prior convictions, review those convictions for possible correction under ORS 138.083. If someone went to trial 5 or 10 years ago on a UUV/PSV, they probably have both a UUV and a PSV conviction. We know that's error, per St v. Noe, and the history of ORS 138.083 suggests that it can be used to correct errors that wouldn't have been considered errors at the time. A successful 138.083 motion may reduce the BM57 sentence your client is facing now, and it may even remove him from BM57 entirely.

Filing these motions shouldn't be limited to BM57 cases, but that is probably where the issue would most often come up.