Why a Stip Facts Trial is Better Than a Plea
by: Jessbarton • January 11, 2012 • no comments
On September 24, 2011, the Library of Defense posted an article of mine called "[/The_Real_World_Effects_of_State_v._Cloutier The Real World Effects of State v. Cloutier,"] In it I explained how the Supreme Court's then-recent decision in Cloutier construed ORS 138.050(1) to severely restrict the types of sentencing issues a misdemeanor defendant could raise on appeal if he pled guilty or no contest.
I also said, "To be frank, the only solution I can think of," to deal with the fallout from Cloutier, "stems from [its] admonition that" because a separate appellate-review statute applies in felony cases-i.e., ORS 138.222-Cloutier "applies to misdemeanor sentencing only; * * * it does not apply to felony sentencing." I then concluded, "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."
But based on what I just went through at oral arguments in the Court of Appeals in a felony case, I need to warn defense counsel that I may need retract that as a possible solution.
In my case, I was seeking appellate review of sentences imposed on felony convictions consequent to guilty pleas. The court grilled me hard with this question:
Why isn't your sentencing argument, which admittedly isn't reviewable under ORS 138.050(1), not reviewable period?
My answer was that Cloutier explains that in felony cases, arguments that aren't reviewable under ORS 138.050(1) may be reviewable under ORS 138.222, and that my claims are reviewable under that statute. But I'm here to tell you that if oral arguments are any kind of predictor, the court will reject my arguments. That is, if the court goes the way it sure sounded like it wants to go, it will apply ORS 138.050(1) to felony appeals. If the court does that, felony defendants will have the same sorts of problems on appeal that misdemeanor defendants have, if they plead guilty or no contest.
But there is one saving grace. In my September 24, 2011 article I said,
"ORS 138.040 regulates appellate jurisdiction in trial cases, so [in misdemeanor cases] 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."
Fortunately, that wouldn't be true in felony cases. Unlike misdemeanor cases, in felony cases the broader, appellate review provisions of ORS 138.222 would apply to the benefit of defendants who are convicted by stipulated-fact trials to the bench.
Unless and until the appellate courts rule favorably for felony defendants on this appellate-review issue, my suggestion to everyone is that if you wish to negotiate a plea in a felony case that would leave sentencing issues open, and if you want your client to be able to appeal in the event the sentencing issues are decided against him, you should negotiate an agreement in which he would be convicted through a stipulated-facts trial to the bench, rather than by a guilty or no-contest plea.
