794 July 17, 2024 No. 496

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

BENITO JUAREZ-HERNANDEZ,

Defendant-Appellant.

Washington County Circuit Court

19CR34942, 19CR61978; A180096 (Control), A180097

Theodore E. Sims, Judge.

Submitted May 14, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Rond Chananudech, Deputy Public Defender, 

Oregon Public Defense Commission, filed the briefs for 

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Peenesh Shah, Assistant Attorney 

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

KAMINS, J.

Affirmed.
Cite as 333 Or App 794 (2024) 795

KAMINS, J.

In this consolidated criminal appeal, defendant 

appeals a judgment of conviction for various sex crimes. In 

his only assignment of error, defendant contends that the 

trial court plainly erred in denying his right of allocution 

because he did not speak at his sentencing hearing. Because 

defendant had the opportunity to speak at the hearing, we 

affirm.

The pertinent facts are undisputed. Defendant was 

convicted of various child sex abuse crimes. In two cases, 

consolidated for appeal, defendant previously argued to this 

court that the trial court erred in concluding that one of the 

sexual abuse verdicts should have run concurrently, rather 

than consecutively, with one of the counts of using a child 

in a display of sexually explicit conduct. State v. JuarezHernandez, 319 Or App 423, 424, 510 P3d 981, rev den, 370 

Or 197, 514 P3d 1116 (2022). We agreed and remanded for 

resentencing. Id.

During that resentencing hearing, defense counsel 

described the shorter sentences given to the other defendants in the case and argued that the trial court should 

impose a sentence “more in line” with those sentences. 

After she articulated defendant’s position, defense counsel 

concluded by saying “[o]ther than that, Your Honor, I have 

nothing further.” The state argued its position, and the trial 

court imposed defendant’s sentence. On appeal, defendant 

contends that the trial court erred by denying him an opportunity to address the court.

Defendant acknowledges that the alleged error is 

unpreserved but requests plain error review. “For an error 

to be plain error, it must be an error of law, obvious and not 

reasonably in dispute, and apparent on the record without 

requiring the court to choose among competing inferences.” 

State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). 

Whether a court violated a defendant’s right to allocution is 

reviewed for legal error. State v. Rogers, 330 Or 282, 305-08, 

4 P3d 1261 (2000).

Under Article I, section 11, of the Oregon Constitution,

an accused defendant in a criminal prosecution has “the 
796 State v. Juarez-Hernandez

right * ** to be heard by himself and counsel[.]” That right of 

allocution extends to sentencing hearings. State v. Rickard,

225 Or App 488, 491, 201 P3d 927 (2009).

In this case, any error is not plain. At resentencing, 

defense counsel never indicated that defendant wanted to 

address the trial court, which is the exact opposite of what 

occurred at defendant’s first sentencing. Indeed, at defendant’s first sentencing, defense counsel stated that “I believe 

that [defendant] wanted to make a brief statement.” At the 

resentencing hearing at issue, however, defense counsel 

stated only that they had “nothing further” to say. Because 

defendant did not in any way indicate to the court that he 

wished to speak, nor does he now argue that the right cannot be exercised by counsel, the court did not deny him the 

right of allocution. See State v. Fern, 110 Or App 185, 187, 

822 P2d 1210 (1991) (explaining that when nothing in the 

record indicates that a defendant wished to speak, there is 

no error for this court to review); see also State v. Ross, 331 

Or App 570, 573, 546 P3d 960 (2024) (explaining that the 

court did not deny defendant’s right to speak because he 

did not indicate that he wished to make an allocution until 

after he was sentenced). Accordingly, the trial court did not 

plainly err.

Affirmed.