ORS 138.050 clearly limits an appeal from a conviction based on a guilty plea to a challenge to the sentence. State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984). Defendant argues, relying on City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980), that the limitations of ORS 138.050 violate the federal Equal Protection Clause and Article I, section 20, of the Oregon Constitution.

" We reaffirmed State v. Jairl, 229 Or. 533, 368 P.2d 323 (1962), in State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984), with caution expressed in greater depth by the concurring justices. 297 Or at 246.

However, the Supreme Court has recently undercut the basis for those decisions. In State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984), it read ORS 138.050 literally and held that the only issue available on a direct appeal from a conviction based on a guilty plea is the propriety of the sentence; any other error must be raised by post-conviction relief or habeas corpus, if it is reviewable at all. We conclude that State v. Reichert, supra, and similar cases are impliedly overruled.

Id. at 68, 597 P.2d 808. In State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984), however, this court concluded that Biles should not be read to hold that all procedural errors were appealable under ORS 138.050 (1977). The court explained that, under ORS 138.050, a defendant who has pleaded guilty may appeal only when the trial court's errors make it impossible for the appellate courts to determine whether the actual sentence imposed was “excessiv[e].”

We grant the state’s motion and dismiss the appeal. See State v. Jairl, 229 Or 533 , 541-42, 368 P2d 323 (1962) (holding that a defendant who pleads guilty may not appeal under ORS 138.040); State v. Clevenger, 297 Or 234 , 244, 683 P2d 1360 (1984) (adhering to the holding in Jairl and upholding the dismissal of an appeal where the defendant, who had pleaded guilty, assigned error only to the validity of the trial court’s acceptance of the plea); State v. Cloutier, 351 Or 68 , 79-80, 84, 261 P3d 1234 (2011) (citing Jairl and Clevenger for the proposition that, where a defendant has pleaded guilty or no contest to a misdemeanor, the defendant may not appeal under ORS 138.040); see also State v. Landahl, 254 Or App 46 , 51-52, 292 P3d 646 (2012), rev den, 353 Or 787 (2013) (rejecting contention that a defendant who pleads guilty to a misdemeanor as part of a diversion agreement may appeal under ORS 138.040 a judgment of conviction entered following the trial court’s revocation of that agreement). Motion to dismiss granted; appeal dismissed.

A defendant who has entered a guilty plea may only appeal a judgment or order described in ORS 138.050(1) (judgments and orders that are subject to appeal) when the defendant “makes a colorable showing that the disposition” “[e]xceeds the maximum allowable by law” or that it “[i]s unconstitutionally cruel and unusual.” ORS 138.050(1)(a)-(b) ; see also State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984) (defendant's appeal assigning error to trial court's denial of his motion to withdraw guilty plea not reviewable under ORS 138.050 ). Likewise, the court's review is limited to “whether the disposition exceeds the maximum allowable by law or is unconstitutionally cruel and unusual.” Brewer, 260 Or.App. at 609, 320 P.3d 620; ORS 138.050.

We further observe that it is not only this court that has contributed to the confusion. In State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984), the Supreme Court affirmed this court's dismissal of an appeal under an earlier version of ORS 138.050, framing the issue in terms of appealability. Thus, Clevenger supports the proposition that ORS 138.050(1) pertains to "appealability."

In enacting subsequent legislation, the legislature is considered to be aware of court decisions. See State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984). If the legislature disagreed that waiver of spousal support was not possible, it was free so to provide in the probate revisions. It did not do so. See State v. Clevenger, supra, 297 Or at 245.

Nor are there any relevant prior Oregon Supreme Court interpretations of the text, which under Oregon law become "part of the statute as if written into it at the time of its enactment."Walther v. SAIF Corp., 312 Or. 147, 149, 817 P.2d 292 (Or. 1991) (citing State v. Clevenger, 297 Or. 234, 244, 683 P.2d 1360 (Or. 1984)). Oregon courts have interpreted this provision only once, and then, only in the context of an umbrella liability policy.

The court, however, may allow withdrawal of a guilty plea or a no contest plea before the entry of judgment and substitute a not guilty plea. State v. Cornelius, 249 Or. 454, 457, 438 P.2d 1020 (1968), overruled by State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984). Indeed, Or. Rev. Stat. § 135.365 provides: "The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor."