Background
Uriel Ruiz-Barboza appealed a judgment terminating his participation in a driving under the influence of intoxicants diversion program. The trial court sentenced him to bench probation and community service and imposed a $2,000 mandatory minimum fine based on an unchallenged representation that he had driven with a blood alcohol content of 0.27 percent.
Under the version of ORS 813.010(6)(d)(A) applicable to the case, the $2,000 minimum fine applied when a defendant committed DUII with a blood alcohol content of at least 0.15 percent. Ruiz-Barboza argued on appeal that the state had not notified him that it intended to rely on his elevated blood alcohol level as a sentence-enhancement fact and that his plea agreement did not mention that fact. He had not raised the argument in the trial court, so the Court of Appeals reviewed only for plain error.
The Court’s Holding
The Court of Appeals affirmed. It held that the asserted failure to provide notice was not an error apparent on the record because Oregon law does not require the state’s notice of an enhancement fact to be filed with or otherwise placed on the trial-court record.
The state could have satisfied the notice requirement through written notice sent directly to Ruiz-Barboza, including written correspondence that did not appear in the court record. Determining whether notice was actually lacking therefore would require examining facts outside the record or choosing among competing inferences. Because the alleged error could not be established from irrefutable facts in the record, it did not qualify as plain error.
Key Takeaways
- An unpreserved sentencing challenge must meet Oregon’s demanding plain-error standard to obtain appellate relief.
- Notice of a sentence-enhancement fact may be provided directly to the defendant and need not appear in the trial-court record.
- When determining whether an alleged notice failure occurred would require evidence outside the record, the claimed error is not apparent on the record.
Why It Matters
The decision illustrates a practical limitation on plain-error review: an appellate court cannot find plain error when the record does not conclusively establish the factual premise of the claimed violation. Defendants challenging notice of sentence-enhancement facts should preserve the issue in the trial court and develop a record showing whether and how notice was provided.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as permitted by that rule.