unpreserved assignment error in Oregon

2016The state responds that Phillips does not require a concurrence instruction in every case and that, alternatively, even if the trial court had erred in failing to provide the instruction, such error was harmless “because the evidence established that defendant committed those crimes as a principal.” We may review an unpreserved assignment of error as “an error of law apparent on the record” under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is “apparent” — that is, the legal point is obvious and is not reasonably in dispute; and (3) the error appears “

2016The state responds that Phillips does not require a concurrence instruction in every case and that, alternatively, even if the trial court had erred in failing to provide the instruction, such error was harmless “because the evidence established that defendant committed those crimes as a principal.” We may review an unpreserved assignment of error as “an error of law apparent on the record” under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is “apparent” — that is, the legal point is obvious and is not reasonably in dispute; and (3) the error appears “

2023For an unpreserved assignment of error to be plain, “the error must be one of law; * * * it must be apparent, i.e., the point must be obvious, not reasonably in dispute; and * * * it must appear on the face of the record, i.e., the review- ing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82 , 823 P2d 956 (1991) (internal quotation marks omitted).

2023For an unpreserved assignment of error to be plain, “the error must be one of law; * * * it must be apparent, i.e., the point must be obvious, not reasonably in dispute; and * * * it must appear on the face of the record, i.e., the review- ing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82 , 823 P2d 956 (1991) (internal quotation marks omitted).

2023“We may review an unpreserved assignment of error as one apparent on the record under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is apparent, in that the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record[.]” State v. Reynolds, 250 Or App 516, 519-20 , 280 P3d 1046 , rev den, 352 Or 666 , 293 P3d 1045 (2012) (internal quotations and citations omitted).

2023“We may review an unpreserved assignment of error as one apparent on the record under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is apparent, in that the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record[.]” State v. Reynolds, 250 Or App 516, 519-20 , 280 P3d 1046 , rev den, 352 Or 666 (2012) (internal quotations and citations omitted).

2025An unpreserved assignment of error is subject to review and potential correction pursuant to plain-error review if the alleged error is “obvious and not reasonably in dispute.” State v. Perez, 373 Or 591, 604 , ___ P3d ___ (2025).

2025An unpreserved assignment of error is subject to review and potential correction pursuant to plain-error review if the alleged error is “obvious and not reasonably in dispute.” State v. Perez, 373 Or 591, 604 , 568 P3d 940 (2025).

2021When the Oregon Supreme Court declined to review an unpreserved assignment of error relating to the same unconstitutional jury instruction given here, it did so “[b]ecause of the absence of a jury poll.” State v. Dilallo, 367 Or 340, 342 , 478 P3d 509 (2020).

2021When the Oregon Supreme Court declined to review an unpreserved assignment of error relating to the same unconstitutional jury instruction given here, it did so “[b]ecause of the absence of a jury poll.” State v. Dilallo, 367 Or 340, 342 , 478 P3d 509 (2020).

2008In State v. Ramirez, 343 Or 505, 513 , 173 P3d 817 (2007), the Supreme Court explained that, in determining whether to exercise our discretion to consider an unpreserved assignment of error based on a claimed infringement of the right to jury trial at sentencing, we must consider the state’s interest in avoiding a pointless remand if there can be no real debate as to what findings a jury would make.

2008In State v. Ramirez, 343 Or 505, 513 , 173 P3d 817 (2007), the Supreme Court explained that, in determining whether to exercise our discretion to consider an unpreserved assignment of error based on a claimed infringement of the right to jury trial at sentencing, we must consider the state’s interest in avoiding a pointless remand if there can be no real debate as to what findings a jury would make.

2024State v. Dominguez-Coronado, 215 Or App 7, 12 , 168 P3d 291 (2007), rev den, 345 Or 396 (2008) (“An unpreserved assignment of error is not reviewable by this court unless it constitutes plain error.”).5 Affirmed. 5 On appeal, defendant also argues that “even if there was sufficient evidence of a sufficient pause” to prevent merger under ORS 161.067(3), defendant “had a right to a jury decision on that factual issue.” Our conclusion that any error was not plain because it is not “obvious” that the two theories of second-degree sodomy litigated during defendant’s trial do not involve separate “m

2024State v. Dominguez-Coronado, 215 Or App 7, 12 , 168 P3d 291 (2007), rev den, 345 Or 396 (2008) (“An unpreserved assignment of error is not reviewable by this court unless it constitutes plain error.”).5 Affirmed. 5 On appeal, defendant also argues that “even if there was sufficient evidence of a sufficient pause” to prevent merger under ORS 161.067(3), defendant “had a right to a jury decision on that factual issue.” Our conclusion that any error was not plain because it is not “obvious” that the two theories of second-degree sodomy litigated during defendant’s trial do not involve separate “m

2018App. 563 , 569-70, 204 P.3d 162 (2009), to argue that a "trial court d[oes] not commit plain error by failing to advise an allegedly mentally ill person about voluntary treatment and conditional release" and, therefore, "any error was *** not obvious in light of that case." We may review an unpreserved assignment of error under ORAP 5.45(1) if certain conditions are met: "(1) the error is one of law; (2) the error is apparent, in that the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, such that we need not go outside the record or choose

2017State v. Quintero-Martinez, 220 Or App 497, 502-03 , 188 P3d 350 , rev den, 345 Or 318 (2008) (declining to reach the defendant’s unpreserved assignment of error where it was certain that the trial court would correct its sentencing error in a manner that left intact the defendant’s total aggregate sentence); State v. Jenniches, 187 Or App 658, 665 , 69 P3d 771 , rev den, 335 Or 578 (2003) (“[A] defendant is not prejudiced if it is clear that, on remand, the trial court lawfully could, and would, impose the same total term of imprisonment.”).

2017State v. Quintero-Martinez, 220 Or App 497, 502-03 , 188 P3d 350 , rev den, 345 Or 318 (2008) (declining to reach the defendant’s unpreserved assignment of error where it was certain that the trial court would correct its sentencing error in a manner that left intact the defendant’s total aggregate sentence); State v. Jenniches, 187 Or App 658, 665 , 69 P3d 771 , rev den, 335 Or 578 (2003) (“[A] defendant is not prejudiced if it is clear that, on remand, the trial court lawfully could, and would, impose the same total term of imprisonment.”).

2017State v. Quintero-Martinez, 220 Or App 497, 502-03 , 188 P3d 350 , rev den, 345 Or 318 (2008) (declining to reach the defendant’s unpreserved assignment of error where it was certain that the trial court would correct its sentencing error in a manner that left intact the defendant’s total aggregate sentence); State v. Jenniches, 187 Or App 658, 665 , 69 P3d 771 , rev den, 335 Or 578 (2003) (“[A] defendant is not prejudiced if it is clear that, on remand, the trial court lawfully could, and would, impose the same total term of imprisonment.”).

2012Although we generally will not consider an unpreserved issue on appeal, State v. Wyatt, 331 Or 335, 341 , 15 P3d 22 (2000), we may nevertheless review an unpreserved assignment of error as plain error under ORAP 5.45(1), provided that (1) the error is one of law; (2) the error is “apparent,” in that the “legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record” such that we “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or 347, 355 , 80

2012Although we generally will not consider an unpreserved issue on appeal, State v. Wyatt, 331 Or 335, 341 , 15 P3d 22 (2000), we may nevertheless review an unpreserved assignment of error as plain error under ORAP 5.45(1), provided that (1) the error is one of law; (2) the error is “apparent,” in that the “legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record” such that we “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or 347, 355 , 80

2012Cf. State v. Capri, 248 Or App 391, 395 , 273 P3d 290 (2012) (exercising discretion to review an unpreserved assignment of error when there was no mention of post-prison supervision in the plea petition and “post-prison supervision was mentioned for the first time when the court announced defendant’s sentence”).

2012Cf. State v. Capri, 248 Or App 391, 395 , 273 P3d 290 (2012) (exercising discretion to review an unpreserved assignment of error when there was no mention of post-prison supervision in the plea petition and “post-prison supervision was mentioned for the first time when the court announced defendant’s sentence”).

2009Although the state concedes that the trial court erred, State v. Thorpe, 217 Or App 301, 306 , 175 P3d 993 (2007), it urges us not to consider defendant’s assignment of error, contending that he waived his claim of error or invited the asserted error.

2009Although the state concedes that the trial court erred, State v. Thorpe, 217 Or App 301, 306 , 175 P3d 993 (2007), it urges us not to consider defendant’s assignment of error, contending that he waived his claim of error or invited the asserted error.

2007State v. Terry, 333 Or 163, 180 , 37 P3d 157 (2001).

2007State v. Terry, 333 Or 163, 180 , 37 P3d 157 (2001).

2007ORAP 5.45(1); State v. Reyes-Camarena, 330 Or 431, 435 , 7 P3d 522 (2000).

2007ORAP 5.45(1); State v. Reyes-Camarena, 330 Or 431, 435 , 7 P3d 522 (2000).

2005We declined to exercise our discretion to review the unpreserved assignment of error, concluding that, because defendant did not challenge the concurrent five-year probationary term, “remanding for resentencing on Count 3 would have no practical effect; either way, defendant is subject to a five-year probationary term.” Gutierrez, 197 Or App at 506 .