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State v. Molette

Summarized by: 

Date Filed: 02-06-2013
Case #: A144809
Wollheim, J. for the Court; Schuman, J.; and Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A144809.pdf

Criminal Procedure: To establish plain error, a defendant must establish that a point of law is obvious, not merely that a point of law is reasonably disputed.

Defendant appealed his presumptive sentence of life imprisonment without the possibility of release or parole under ORS 137.719, arguing that the trial court lacked the authority to impose such a sentence. Defendant was convicted of second-degree sexual assault under ORS 163.375. At sentencing, the State asked the court to impose the presumption of life imprisonment without parole under ORS 137.710, which requires that Defendant have been sentenced to two prior felony sex crimes. The State offered certified copies of convictions for two felony sex crimes in Texas. At no time during sentencing did Defendant argue the trial court lacked the authority to impose such a sentence and it was not preserved for appeal. The Court of Appeals held that an appellate court will only examine an unpreserved claim for "plain error". Given the arguments presented by the State and Defendant, whether or not probation imposed by the Texas courts is considered a "sentence" under ORS 137.719 or under Texas law, and which law should be applied, it can be reasonably disputed whether there was any error. This is not sufficient to qualify as "plain error", which requires that a point of law be obvious. The Court also held that Defendant offered no case law to support his second argument, again failing to establish that the point of law was "obvious." Affirmed.