State v. Thomas, 386 P.3d 218

Background

Defendant pleaded no contest to unauthorized use of a vehicle under a plea petition that listed the prosecutor's commitments: 12 months monitored probation, 80 hours CSW, drug package, no contact with victim, and fines/fees/costs. Restitution was not mentioned.
At sentencing two days later the prosecutor first requested restitution because the trailer was unrecovered; defense objected that restitution was not part of the plea agreement.
The trial court acknowledged the state "arguably" breached the plea but concluded it nonetheless could impose restitution under ORS 137.106 and sentenced defendant to 10 days jail plus ordered $6,460 restitution.
Defendant sought specific enforcement of the plea (i.e., no restitution) or, alternatively, withdrawal of the plea because of the prosecutor's breach. The court proceeded to impose restitution without resolving those remedies correctly.
On appeal the court held the prosecutor breached the plea agreement by seeking restitution (a term omitting from the written agreement) and that the trial court erred by sentencing without properly addressing available remedies for the breach.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a plea agreement that is silent on restitution allows the state to seek restitution at sentencing	State: silence means no preclusion; ORS 137.106 requires DA to present victim damages and court to order restitution if proven	Devore: plea is a contract; omission of restitution was a material term excluding restitution; state breached by seeking it	Court: plea formed and unambiguous; omission bars the state from adding restitution as a term — the state's request breached the plea
Proper remedies when the prosecutor breaches a plea agreement	State: sentencing and restitution hearing were appropriate; defendant never sought plea withdrawal at sentencing	Devore: breach entitles defendant to either specific performance (enforce plea terms) or to withdraw plea (status quo ante)	Court: Defendant entitled to choose remedies; trial court erred by not affording those options before sentencing; reverse and remand
Whether restitution is a jury issue	State: restitution is not a jury question	Devore: argued but court declined to address on appeal	Court: Rejected defendant’s challenge; restitution is not a jury issue (citing precedent)
Whether trial court may ignore a plea term based on victim-notification / statute requiring DA to present damages	State: DA had statutory duty to present damages and court could impose restitution despite plea	Devore: contractual terms control unless ambiguous; court may not insert omitted terms	Court: Statute does not trump a clear plea term; court erred in proceeding without respecting the breach

Key Cases Cited

State v. Heisser, 350 Or 12 (Supreme Court of Or) (plea agreements analyzed under contract principles; enforce written terms)
Santobello v. New York, 404 U.S. 257 (U.S. Supreme Court) (prosecutorial breach of plea deals entitles defendant to remedies including specific performance or plea withdrawal)
Stewart v. Cupp, 12 Or App 167 (Or. Ct. App.) (discussing remedies for plea-bargain breach: affirm contract and seek specific performance or disaffirm and withdraw plea)
State v. McDonnell, 310 Or 98 (Or. 1990) (recognizing role of plea negotiation in the criminal system)
State v. McMillan, 199 Or App 398 (Or. Ct. App.) (restitution is not a jury issue)
State v. Noble, 231 Or App 185 (Or. Ct. App.) (sentencing and restitution orders reviewed for errors of law)
Yogman v. Parrott, 325 Or 358 (Or. 1997) (contract interpretation principles for written agreements)
Hynix Semiconductor Mfg. America v. EWEB, 276 Or 228 (Or. App.) (court may not create obligations omitted from a contract)
Thompson v. Bolliger Hampton & Tarlow, 118 Or App 700 (Or. Ct. App.) (court cannot read into a contract provisions that are not present)
State v. Wagoner, 257 Or App 607 (Or. Ct. App.) (distinguishing cases where restitution may be added after remediating procedural omission)
State v. Thompson, 257 Or App 336 (Or. Ct. App.) (addressing restitution added post-sentencing when statutory requirements are satisfied)