State v. Fern , 110 Or. App. 185 ( 1991 )

822 P.2d 1210 (1991) 110 Or.App. 185

STATE of Oregon, Respondent,
v.
Edward James FERN, Appellant.

90C-20074; CA A64905.

Court of Appeals of Oregon.

Argued and Submitted July 24, 1991. Decided December 11, 1991.

Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jas. Adams, Asst. Atty. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J.

RICHARDSON, Presiding Judge.

Defendant pled no contest to a charge of assault. ORS 163.175. He appeals and challenges the sentence. We affirm.

Defendant first assigns error to the trial court's alleged failure to allow him his right of allocution at his sentencing hearing. Or. Const., Art. I, § 11. He relies on DeAngelo v. Schiedler, 306 Or. 91, 757 P.2d 1355 (1988), in which the trial court had refused to hear the defendant when she tried to speak at her sentencing. The Supreme Court held that the Oregon Constitution gives a defendant the right to be heard at sentencing and that that right had been violated by the trial court's action. However, it did not hold that a defendant may claim a denial of the right to speak without having objected in the sentencing court. To the contrary, it noted that "[the defendant] should have attempted to make an `offer of proof' of what she was going to say to the court," 306 Or. at 98, 757 P.2d 1355, although, under the circumstances of that case, the court concluded that an offer of proof would have been futile.

Review of a claim that a sentencing court failed to follow a constitutional mandate in imposing the sentence is subject to review under ORS 138.222(4)(a). State v. Munro, 109 Or. App. 188, 818 P.2d 971 (1991); State v. Cook, 108 Or. App. 576, 816 P.2d 697 (1991). However, ORS 138.222 did not change the fundamental requirement that a defendant preserve a claim of error. State v. Orsi/Gauthier, 108 Or. App. 176, 813 P.2d 82 (1991).^[1] There is nothing in the record to indicate, in any way, that defendant wished to speak or was prevented from doing so. There is no error that we may review.

Defendant was sentenced within the presumptive range and he assigns error to the trial court's failure to impose a downward departure sentence.^[2]See ORS 137.010; OAR 253-08-001. The scope of review of a sentence imposed under the sentencing guidelines is defined in ORS 138.222. We have no authority to review the court's decision not to impose a departure sentence. State v. Cook, supra.

Affirmed.

NOTES

[1] There is no error "apparent on the face of the record." Defendant's failure to speak at sentencing, without more, does not show that defendant was denied the right to speak. ORAP 5.45(2).

[2] At the sentencing hearing, witnesses testified and defendant's counsel presented arguments in support of mitigation.