Background
In 2025, Michael Thomas Berry pleaded guilty to first-degree theft. Under a negotiated plea agreement, he stipulated to sentencing under grid block 6B, although the grid block corresponding to his crime and criminal history was 3B. The agreement included a downward dispositional departure to 36 months of probation.
Berry also stipulated that, if his probation were revoked, both parties would recommend 24 months in prison followed by two years of post-prison supervision. About seven months later, the state alleged four probation violations, including failure to enter treatment court, failure to report, and new convictions in two separate cases. Berry admitted committing new offenses and failing to enter treatment court. The trial court found three violations, determined that probation’s purposes were not being and could not be served, revoked probation, and imposed the previously agreed sentence.
The Court’s Holding
Appointed appellate counsel filed a brief under ORAP 5.90 and State v. Balfour that did not contain a Section B. After reviewing the trial court file, hearing transcripts, and appellate brief, the Oregon Court of Appeals identified no arguably meritorious issue.
The court also noted that ORS 138.105(9) circumscribed its authority to review the sentence. Relying on State v. Neill, it explained that the statute precluded review because Berry had stipulated to the probation-revocation sentence. The court therefore affirmed the judgment.
Key Takeaways
- A probation-revocation sentence to which a defendant stipulated is not reviewable under ORS 138.105(9).
- The trial court imposed the same 24-month prison term and two-year post-prison-supervision term contemplated by Berry’s plea agreement.
- The Court of Appeals found no arguably meritorious issue after reviewing the record and the Balfour brief.
Why It Matters
The decision applies Oregon’s statutory restriction on appellate review when a defendant stipulated to the sentence imposed after probation revocation. It also illustrates the court’s record-review process in an appeal accompanied by a Balfour brief.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as permitted by ORAP 10.30(1).