Argued and Submitted May 23, 2013.
Washington County Circuit Court. C011455CR, C003587CR. Suzanne Upton, Judge.
George W. Kelly argued the cause and filed the briefs for appellant.
Kathleen Cegla, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Edmonds, Senior Judge.
[263 Or.App. 567] ORTEGA, P. J.
In these consolidated criminal appeals, defendant challenges his conviction for third-degree rape in Case No. C003587CR, and his convictions for two counts of third-degree sexual abuse in Case No. C011455CR, entered following defendant's conditional pleas of guilty to those crimes. Specifically, he maintains that the trial court should have granted his motion to dismiss all counts against him because, under our decision in State v. Dinsmore, 200 Or.App. 432, 116 P.3d 226 (2005), aff'd, 342 Ore. 1, 147 P.3d 1146 (2006), the state could not " revive" charges that had been previously dismissed pursuant to pleas entered by defendant in 2001. He contends that even though the pleas he entered in 2001 were later vacated by the federal district court pursuant to defendant's petition for habeas corpus relief, the state could not revive the previously dismissed charges without reindicting him, and that any reindictment is barred by the applicable statutes of limitations. In response, the state raises several potential bars to our review of the ruling that defendant now challenges, and alternatively contends that, on the merits, Dinsmore is distinguishable. We conclude that defendant's failure to appeal judgments entered in May 2011 precludes us from reaching the merits of his appeal, which challenges later judgments purporting to amend those judgments. Accordingly, we affirm.
The relevant facts, though undisputed, are convoluted and primarily procedural. In 2001, a grand jury indicted defendant in Case No. C011455CR on two counts of first-degree sexual abuse (Counts 1 and 2), two counts of first-degree attempted rape (Counts 3 and 7), one count of third-degree attempted rape (Count 4), two counts of third-degree sexual abuse (Counts 5 and 6), and two counts of first-degree attempted sexual abuse (Counts 8 and 9). In Case No. C003587CR, a grand jury indicted defendant on first-degree rape (Count 1), two counts of compelling prostitution (Counts 2 and 5), two counts of third-degree rape (Counts 3 and 6), and one count of third-degree sodomy (Count 4). In November 2001, defendant pleaded guilty to one count of compelling prostitution in C003587CR, and no contest to two counts of first-degree attempted rape in C011455CR, pursuant to a " consolidated plea offer." The plea petitions [263 Or.App. 568] stated that the state would dismiss all remaining counts. In February 2002, defendant moved to set aside his pleas in both cases and to substitute not guilty pleas. The trial court denied defendant's motions. Subsequently, the trial court entered judgments of conviction reflecting his guilty and no-contest pleas, and explicitly dismissed the remaining counts in each accusatory instrument.
Defendant sought post-conviction relief in state court, but his requests were denied. Thereafter, he filed two petitions for writ of habeas corpus under 28 USC section 2254 in the federal district court. In October 2008, the federal court issued a conditional writ of habeas corpus directing the state to " release [defendant] from custody within ninety days unless the state elects to appoint new counsel on behalf of [defendant], conduct a new hearing on petitioner's motion to withdraw his guilty pleas, and either retries [defendant], or (if [defendant's] renewed motion to withdraw his guilty pleas is denied) resentences [defendant]." In its decision, the federal court explained that defendant's trial counsel was ineffective under the Sixth Amendment to the United States Constitution by failing to ensure that defendant's guilty plea to the charge of compelling prostitution was knowing, intelligent, and voluntary. In particular, the court concluded that, given the factual basis underlying the compelling prostitution charges against defendant (that defendant paid for sex), competent counsel would have advised defendant that the crime of compelling prostitution only applied to persons compelling remunerated sex with a third party, as opposed to a patron paying for sex. The state appealed the federal district court's decision, and the Ninth Circuit Court of Appeals affirmed.
After the state's unsuccessful appeal to the Ninth Circuit, the state trial court appointed new counsel for defendant and held a hearing in the summer of 2010 on defendant's motion to withdraw his pleas. The court again denied defendant's motion. Defendant filed a motion in the federal district court to " enforcement
judgment," which the court granted, concluding that defendant was entitled to withdraw his pleas and further stating, in relevant part:
[263 Or.App. 569] " The state is accorded a final opportunity to cure the constitutional errors that have occurred. This opportunity, explicitly, is: petitioner's prior pleas on all charges are ordered withdrawn. The State may either elect to prosecute petitioner, or must dismiss all charges."
On April 8, 2011, defendant moved to dismiss all charges against him. He argued that the compelling prostitution counts should be dismissed because case law that issued subsequent to his prior, now vacated, pleas barred prosecution for the offense, citing State v. Vargas-Torres, 237 Or.App. 619, 242 P.3d 619 (2010), in which we clarified that the crimes of promoting prostitution and compelling prostitution apply to third-party promoters, not patrons. The state agreed to dismiss the compelling prostitution counts in both cases and those counts were dismissed. As to the remaining charges, defendant argued that those counts were dismissed in the judgments of conviction entered subsequent to his plea agreements, and that the state cannot reinstate those dismissed counts without reindicting him. To support his position, defendant cited our decision in Dinsmore, arguing that that case stood for the proposition that once charges are dismissed pursuant to a plea agreement, the state cannot revive those charges without reindicting the defendant when the defendant has subsequently prevailed in securing post-judgment relief.
The court denied defendant's motion, concluding that, given that defendant's plea agreements were " vacated" by the federal court, the state could prosecute defendant on the charges that were dismissed pursuant to those plea agreements. That is, the cases reverted back to the pre-plea agreement posture.
After the court denied defendant's motion to dismiss, he agreed to enter a conditional plea of guilty to third-degree rape in Case No. C003587CR, and two counts of third-degree sexual abuse in Case No. C011455CR. In the [263 Or.App. 570] plea agreement in Case No. C003587CR, done in open court on April 26, 2011, the parties agreed that " the DA will dismiss Counts 1 through 3 (Count 6 already dismissed); conditional plea; plea may be withdrawn if I prevail on appeal[.]" Similarly, in the plea agreement in Case No. C011455CR, also entered in open court, the parties agreed that " the DA will dismiss Counts 1 through 4 (Counts 7-9 already dismissed); conditional plea; I may withdraw plea if I prevail on appeal[.]" The court pronounced ...