The Real World Effects of State v. Cloutier
by: Jessbarton • September 23, 2011 • no comments
Besides being another example of the Oregon Supreme Court's retrenchment from historically accepted norms in the protection of rights of the accused - cf. State v. Partain and State v. Jacob - yesterday's decision in State v. Cloutier unquestionably will impair the defense bar's ability to represent misdemeanor clients in plea negotiations. To make matters worse, a legislative "fix" may be the only way to deal with Cloutier.
Defendant Cloutier pled no contest to "misdemeanor DUII and entered a DUII diversion program. When [he] failed to complete the program, the trial court terminated diversion, entered a judgment of conviction, and imposed a sentence, including a fine" of $1,100, $100 more than the $1,000 mandatory minimum. When asked why it imposed the extra $100, the court said it "was for his no contest plea at the time of entering the diversion."
Cloutier appealed. He argued that the trial court violated his due process rights, and thereby "abused its discretion," when "it imposed a fine greater than the mandatory minimum simply because [he] exercised [his] statutory right" to plead no contest. See, e.g., State v. Reid, 140 Or App 293, 299 (1996) (to the extent the trial court based an aggravated departure on defendant's exercise his constitutional rights to go to trial, the court erred).
Cloutier's appeal first involved a bunch of pointless procedural wrangling in the Court of Appeals. Finally, the case landed in the Supreme Court. After a lengthy constructional analysis of the applicable, appellate-jurisdiction statute, ORS 138.050(1), the Supreme Court concluded that the appellate courts lacked jurisdiction over the appeal and dismissed Cloutier's case.
Despite its length, the court's analysis is not comprehensive, in that it did not account for the effects the decision would have on contextual statutes - specifically, the plea-negotiation statutes found in ORS chapter 135. The decision fails to recognize that the parties could negotiate what they agree is the right result, only to have the trial court undermine their work by injecting into the judgment a patently illegal component. Traditionally in a misdemeanor case the defendant could appeal that illegal component. But thanks to Cloutier, not anymore. Now his sole remedy is post-conviction relief (assuming he even has that).
By failing to address how its decision will impair the parties' ability to resolve cases through negotiations, the court substantially nullified the state?s plea-bargaining system in misdemeanor cases. How the defense bar will deal with this problem is anyone's guess. For example, ORS 138.040 regulates appellate jurisdiction in trial cases, so defense counsel might try to circumvent Cloutier by resolving cases through stipulated-facts trials. But for sentencing issues, that statute's text is identical to the text of ORS 138.050(1) on which Cloutier relies. That means there is little hope that stipulated-facts trials, in lieu of guilty and no-contest pleas, will be of any help.
To be frank, the only solution I can think of stems from Cloutier's admonition that its decision applies to misdemeanor sentencing only; that it does not apply to felony sentencing. This creates the absurd possibility that the way defense counsel might circumvent Cloutier is by negotiating pleas that would have misdemeanor clients plead to felonies.
The consequences of Cloutier's myopic construction are painfully reminiscent of State v. Kilborn, 120 Or App 462 (1993). There, the Court of Appeals held that under its reading of State v. Adams, 315 Or 359 (1993), if the parties stipulated to any aspect of the defendant?s felony sentencing, former ORS 138.222(2)(d) barred appellate review of all aspects of the defendant?s sentencing. For example, if a defendant were charged with ordinary PCS, the parties stipulated that he would pay a $100 fine, but at sentencing the court imposed life imprisonment, Kilborn would have barred the defendant from appealing that decision. Even the prosecution bar recognized this was madness. It recognized that under Kilborn, vast numbers of defendants facing felony charges would conclude that instead of plea negotiations, they must take their cases through some form of trial. Acknowledging that Kilborn's disruption of plea bargaining would severely affect judicial efficiency and fiscal integrity, the prosecution bar joined with OCDLA to secure passage of legislation that amended ORS 138.222(2)(d). The amendment overturned Kilborn by allowing appellate review of sentencing decisions except those components to which the parties actually stipulated (e.g., the $100 fine, in the above hypothetical). See State v. Kephart, 320 Or 433, 444-47 (1994).
It?s remarkable how in Kephart the Supreme Court took notice of how Kilborn would hamstring the parties' ability to resolve felony cases through negotiations, but in Cloutier the court didn't mention the "real world" effects of its decision. Short of negotiating felony convictions in misdemeanor cases, I?m not sure how the defense bar will manage with Cloutier. That is not to say Cloutier isn't manageable. Certainly if anyone has ideas about how to deal with Cloutier, the defense bar needs to hear them. But if there is no good way to manage with Cloutier in court, then the only solution is legislation.
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1. On behalf of the prosecution bar in numerous post-amendment cases (Kephart included), Department of Justice attorneys argued that the amendments do not mean what they say and were intended to mean. In Kephart the Supreme Court effectively told the DOJ attorneys, "Get that weak [stuff] out of here."
But in the interests of full disclosure I have to confess that between the times of the decisions in Kilborn and Kephart, including while I was litigating Kephart, I relied on Kilborn to convince the Court of Appeals to reject the state's appeal of a sentence that the state claimed was too lenient. See State v. Garcia, 122 Or App 226 (1993). If that means I was hypocritical in the defense of my client, I can live with that.
