Background
Mark Allen Strutton, Jr. pleaded no contest to two counts of first-degree sexual abuse under ORS 163.427. During sentencing, the Polk County Circuit Court observed that the case was more than a year old and that Strutton had not taken “early accountability.”
On appeal, Strutton argued that the trial court improperly considered the timing of his plea rather than sentencing him solely on the facts of the case and his personal history. He had not raised that objection in the trial court and did not request plain-error review on appeal.
The Court’s Holding
The Oregon Court of Appeals affirmed. It concluded that Strutton’s argument was unpreserved and noted that appellate courts ordinarily will not exercise their discretion to review an unpreserved claim without an express request for plain-error review and an explanation supporting that request.
The court further held that any error was not plain. Although the trial court referred to the absence of “early accountability” after the parties discussed the timing of the plea, the record did not establish that the court relied on that consideration when imposing sentence. Determining otherwise would require choosing among competing inferences, so the asserted error was not apparent on the face of the record.
Key Takeaways
- A defendant must preserve an objection that a sentencing court improperly considered the timing of a plea.
- An appellant seeking review of an unpreserved claim should expressly request plain-error review and explain why the court should exercise its discretion.
- A sentencing judge’s reference to “early accountability” did not establish plain error where the record did not clearly show that the plea’s timing affected the sentence.
Why It Matters
The decision illustrates the importance of making a contemporaneous sentencing objection when a court’s remarks could suggest that it is penalizing a defendant for delaying a plea. Without preservation or a developed request for plain-error review, appellate relief is unlikely.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.