Background
In this consolidated criminal appeal, Barry Layne Cope, Jr. challenged judgments revoking his probation in two cases and imposing consecutive 13-month sentences.
Cope argued that the trial court revoked probation based on his failure to report as required and follow his probation officer’s directions, even though, in his view, the original judgments had deleted that statutory general condition by listing other probation conditions without including it. He acknowledged that he had not preserved the argument in the trial court and requested plain-error review.
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that the alleged legal error was not obvious and beyond reasonable dispute, as required for review of an unpreserved claim under the plain-error standard.
The court rejected Cope’s reliance on State v. Zamora-Martinez. In that case, the judgment expressly included a provision intended to supersede a statutory general probation condition. Cope’s judgments, by contrast, did not expressly indicate an intent to displace or supersede any general conditions. Whether merely listing other conditions implicitly deletes an unlisted statutory general condition was therefore reasonably disputable, making the alleged errors ineligible for plain-error review.
Key Takeaways
- An unpreserved claim is not eligible for plain-error review unless the alleged legal error is obvious and not reasonably disputable.
- Listing particular probation conditions in a judgment does not obviously establish that unlisted statutory general conditions were deleted.
- The court did not decide whether an implied deletion could ever be effective; it held only that Cope’s theory was too debatable to satisfy the plain-error standard.
Why It Matters
The decision underscores the importance of preserving objections concerning the probation conditions governing revocation. When a judgment does not expressly state that a statutory general condition is displaced, an appellate court may decline to consider an unpreserved argument that the condition was deleted by implication.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.