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State v. King

Supreme Court of Oregon

July 13, 2017


          Argued and Submitted June 15, 2016

         On direct appeal of the order of dismissal of the Linn County Circuit Court CC 15CR22123, under ORS 138.060(2)(b), David E. Delsman, Judge.

          Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and fled the briefs for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Mary M. Reese, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for respondent. Also on the brief was Ernest G. Lannet, Chief Defender.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices, and Brewer, Senior Justice pro tempore. [*]

         The judgment of the circuit court is affirmed.

          [361 Or. 647] Case Summary: Pursuant to a plea agreement, defendant pleaded guilty to second-degree assault and no contest to first-degree robbery for beating the victim and stealing his bicycle. The victim later died from his injuries, and the state fled felony murder and first-degree manslaughter charges based on his death. Defendant moved pretrial to dismiss the indictment, arguing that the homicide charges violated the plea agreement. The plea agreement did not specifically address the consequences if the victim were to subsequently die, nor did the parties discuss that contingency. As a matter of first impression, the trial court concluded that the state's failure to reserve the right to bring further charges against defendant precluded it from later doing so. The state fled a direct appeal with the Oregon Supreme Court under ORS 186.060(2).

         Held: (1) in the absence of a plea agreement or statutory rule specifically addressing the issue, a contractual default rule applies: When it is reasonably foreseeable to the prosecutor that the victim may die, and the state intends to reserve the right to re prosecute a defendant in the event of a victim's death, it must disclose its intention as part of the plea deal. The judgment of the circuit court is affirmed

          [361 Or. 648]

          NAKAMOTO, J.

         Defendant pleaded guilty to second-degree assault and no contest to first-degree robbery in accordance with an oral plea agreement reached with the state. Six months later, the victim died because of his injuries from the assault, and then the state began another prosecution against defendant: for felony murder and manslaughter. As a consequence of the plea agreement, the trial court granted defendant's pretrial motion to dismiss the indictment and dismissed the case. The state appeals the dismissal order. See ORS 138.060(2) (b) (state may appeal order dismissing accusatory instrument; if murder is charged, appeal is to this court).

         As this court observed in State v. Heisser, 350 Or. 12, 23, 249 P.3d 113 (2011), principles of contract law generally inform the determination of whether a plea agreement has been performed. However, contract principles that apply in a commercial setting do not necessarily suffice for an analysis of a plea agreement, because the rights of criminal defendants "not ordinarily found in contracts between private parties * * * may override contractual principles." Id. This case presents an issue of first impression in Oregon that lies at the confluence of the contractual incompleteness of a plea agreement and the waiver of constitutional rights by criminal defendants: whether the state may reprosecute defendant for homicide when the state knew at the time of defendant's plea agreement that the victim could die; when the potential for future prosecution was not a subject of plea negotiations or of the plea agreement; and when defendant relinquished trial-related constitutional rights and entered pleas on non-homicide charges with the belief that the plea agreement ended all prosecutions arising out of the criminal incident.

         In seeking reinstatement of the indictment, the state contends that, applying ordinary principles of contract interpretation, the plea agreement poses no bar to the state's otherwise permissible prosecution of defendant for homicide and that defendant assumed the risk of the victim's death. Defendant rejoins that the contract principles the state advances cannot be woodenly applied when a criminal defendant relinquishes state and federal constitutional [361 Or. 649] rights as part of a negotiated plea. He asserts, among other arguments, that, to address the contingency of the victim's death, the trial court correctly recognized and applied a default contractual term to the plea agreement to bar his reprosecution for homicide.

         As did the trial court, we conclude that a contractual default rule fills the gap in the plea agreement and prevents defendant's reprosecution. Accordingly, we affirm.

         I. BACKGROUND

         Although the parties disagree regarding the contract and criminal law principles that should govern the analysis, they agree that this court reviews the trial court's ruling for legal error. We agree and add that we will not disturb the trial court's factual findings if they are supported by the record. E.g., Heisser, 350 Or. at 25-28 (examining under standard). We state the facts in accordance with that standard of review.

         A. The Assault

         One night in early August 2013, defendant and his codefendant, Jimenez, were at a hospital in Lebanon, Oregon. Defendant was 17 years old. He and Jimenez, an adult, were intoxicated and disruptive. A security guard who followed them out of the hospital heard defendant tell Jimenez that his bicycle had been stolen and that he wanted to beat someone up. Several hours later, the security guard saw defendant and Jimenez walking a bicycle near the hospital.

         The next day, the victim was found lying in a parking lot near the hospital. The victim's bicycle was gone, but defendant's insurance card was found nearby. The police then discovered that defendant was a runaway minor and that he and Jimenez had been at the hospital. The police saw the victim's bicycle at Jimenez's residence, and Jimenez and defendant were arrested. Both of them made incriminating statements during interviews by the police.

         The victim had multiple head injuries and was in a coma in the hospital. In the days after the victim was found, hospital personnel informed police that he was stable but that there was a possibility that he could die from his [361 Or. 650] injuries. At the end of August, the victim was transported to a specialty hospital in Portland for long-term acute care. Although the victim regained consciousness several months after his move, his brain injuries were so significant that the right side of his body was paralyzed; he was incontinent; and he no longer could eat or drink, walk, or communicate with people normally. He remained bedridden at the long-term care facility until his death.

         B. Defendant's Plea Agreement and Codefendant's Trial

         In August 2013, the state charged defendant and Jimenez with second-degree assault, ORS 163.175(1) (a) ("intentionally or knowingly caus[ing] serious physical injury" to the victim), and first-degree robbery, ORS 164.415 (1)(c) (robbery enhanced by infliction of serious physical injury to the victim). In the fall of 2013 and early 2014, the parties engaged in negotiations for a plea agreement. The parties first attended a settlement conference with a circuit court judge in October 2013. The issue of what would happen if the victim died was not discussed. The prosecutor provided a formal written plea offer to defendant and Jimenez, dated the next day, which also was silent regarding that contingency. In early January 2014, the parties had a second settlement conference, but that did not result in an agreement. Later in January, after the trial court denied defendant's motion in limine seeking merger of the assault and robbery counts, defendant and the state arrived at a plea agreement. The parties never discussed the possible death of the victim and the potential for homicide charges if the victim were to die.

         The parties did not enter into a written agreement, although defendant and his attorney signed a petition dated January 28, 2014, to enter pleas to the charges. The prosecutor did not see the petition before defense counsel provided it to the court at a "final resolution" pretrial conference held that day. Among other things, the plea petition contained the following items: First, it described the two counts of the indictment, the maximum penalty for each crime, and the plea that defendant would enter on each count. Second, it recited various potential collateral consequences of convictions, such as the inability to own or possess firearms if [361 Or. 651] defendant was convicted of a felony crime; "the imposition of certain costs and fees in addition to any fines imposed"; the possible violation or revocation of probation, parole, or post-prison supervision he may have been serving; and the possibility of consecutive sentences. Third, it warned that defendant was giving up most of his rights to appeal, although it stated that defendant was making a conditional plea that reserved the right to appeal the denial of his motion in limine regarding merger of the counts. Fourth, the petition contained defendant's representation that he understood that he was "giving up" five enumerated rights related to a trial (his "right to a speedy trial by jury, " his right to be represented at trial by an attorney, his "right to confront and cross-examine witnesses called to testify" against him, his "right to compel witnesses to come to court, " and his "right to remain silent") and his "legal status of being innocent until proven guilty beyond a reasonable doubt." And fifth, it recited that "[n]o threats" had been made to defendant to induce entry of the plea and "no promises" had been made "except as may have been stated in open court."

         The petition did not touch on the condition of the victim or what could happen if the victim were to die. Nor were those topics raised at the pretrial conference when defendant presented the petition to the court.

         Defendant's plea and sentencing hearing took place in late February 2014. The terms of the oral plea agreement between defendant and the state were stated on the record. In exchange for his pleas, the state and defendant jointly recommended to the court that defendant be sentenced to serve 120 months in prison: 70 months for the assault count and 90 months for the robbery count, with 50 of those 90 months to be served consecutively to (and 40 months to be served concurrently with) the prison term for the assault. The state also agreed that defendant could appeal the court's ruling that the convictions should not merge. Defendant pleaded guilty to assault in the second degree and no contest to robbery in the first degree. Neither the court nor counsel raised the issue of what would happen if the victim died.

         Before the court sentenced defendant for the assault and robbery, the victim's brother described the victim's [361 Or. 652] severely diminished physical and mental condition and said that family members questioned whether they had made the right decision in directing doctors at the hospital "to fight for [the victim's] life." The prosecutor also described the victim's condition at the hearing:

"He was in a coma for quite some time at the hospital[.] [H] e was ultimately sent to rehab. He's still in a rehab center. While he's probably not in a coma he certainly is * * * never going to be functioning in the manner that he ever was before. Who knows at this point. I mean it's just a really long term process as to where he's going to be headed."

         The court sentenced defendant to serve a total of 120 months in prison, accepting the parties' recommendation for a partially concurrent sentence because of the negotiated agreement and defendant's youth. The court also imposed two 36-month periods of post-prison supervision and assessed felony fines.

         Unlike defendant, Jimenez rejected the state's plea offer. He proceeded to trial with the same prosecutor ...

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