Opinion
89C-20839, 90C-20498; CA A68092 (Control), A68093 (Cases Consolidated)
Submitted on record and briefs December 19, 1991
Affirmed February 12, 1992
Appeal from Circuit Court, Marion County.
Rodney W. Miller, Judge.
Sally L. Avera, Public Defender, and James N. Varner, Deputy Public Defender, Salem, filed the brief for appellant.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, filed the brief for respondent.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
In case number A68093, pursuant to a plea agreement, defendant pled guilty to delivering a controlled substance as part of a drug cultivation, manufacture or delivery scheme or network. ORS 475.992. He assigns error to the sentence imposed.
The court then revoked his probation and executed sentence for a prior offense in case number A68092, but defendant assigns no error in that case.
Defendant argued that the trial court miscalculated the crime seriousness level under the sentencing guidelines, because it applied the provisions for "scheme or network" crimes found unconstitutional in State v. Moeller, 105 Or. App. 434, 806 P.2d 130, rev dismissed 312 Or. 76, 815 P.2d 701 (1991). See ORS 138.222(4)(b). He also argues that, because the court applied the wrong crime seriousness level, it also used the wrong presumptive sentence, which constitutes a departure reviewable under ORS 138.222(3).
Defendant does not dispute that, at the time of his sentencing, the crime to which he pled guilty was classified as category 8. His sentence resulted from the plea agreement. ORS 138.222(4) provides no authority to review his sentence. ORS 138.222(2)(d); State v. LeDonne, 111 Or. App. 114, 823 P.2d 454 (1992); State v. Rathbone I, 110 Or. App. 414, 823 P.2d 430 (1991).
ORS 138.222(3) does not apply to this case. The sentence imposed was not a departure from the guidelines as they existed when defendant pled guilty. Defendant cannot now claim that it was.
Affirmed.