STATE v. GREEN (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Cody Michael GREEN, Defendant-Appellant.

A172027

Decided: September 09, 2021

Before James, Presiding Judge, and Kamins, Judge, and Kistler, Senior Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.

Defendant appeals from a judgment entered after the termination of a failed driving under the influence of intoxicants diversion. The state responds that defendant's assignments of error are not reviewable on appeal in light of ORS 138.105(5). Defendant argues that they are reviewable despite the limitation on reviewability of guilty pleas in ORS 138.105(5), or that if unreviewable, that the statute violates equal protection. We have recently rejected similar arguments to those made by defendant in State v. Merrill, 311 Or. App. 487, 492 P.3d 722 (2021), adh'd. to as modified on recons., 314 Or. App. 460, ––– P.3d –––– (2021), and State v. Redick, 312 Or. App. 260, 491 P.3d 87 (2021). In light of Merrill and Redick, we affirm on the ground that the assignments of error are unreviewable, but we note that this issue is currently pending before the Oregon Supreme Court in State v. Colgrove, 308 Or. App. 441, 480 P.3d 1026, rev. allowed, 368 Or. 347, 489 P.3d 540 (2021), and the decision there will likely affect this case.

Affirmed.

PER CURIAM

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