STATE OF OREGON, Appellant, v. TREVIN MICHAEL KING, Respondent.
CC 15CR22123; SC S063810
IN THE SUPREME COURT OF THE STATE OF OREGON
July 13, 2017
361 Or 646 (2017)
David E. Delsman, Judge.
On direct appeal of the order of dismissal of the Linn County Circuit Court, under ORS 138.060(2)(b). Argued and submitted June 15, 2016.
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed 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, Office of Public Defense Services, Salem, argued the cause and filed 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.*
NAKAMOTO, J.
The judgment of the circuit court is affirmed.
Case Summary:
Pursuant to a plea agreement,
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
As this court observed in State v. Heisser, 350 Or 12, 23, 249 P3d 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 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
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 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,
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 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
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 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 several months later, in May 2014.
At the trial, the state presented evidence concerning the victim‘s condition. The neurologist who had evaluated the victim at the hospital testified about the victim‘s initial prognosis: the victim could have had a “substantial risk of death.” The victim‘s attending physician at the long-term care facility also testified about the victim‘s prognosis. She recounted that she had told the victim‘s family members that, because of his conditions, such as being unable to swallow and move appropriately, the victim was “highly likely” to develop other significant medical conditions and that, when that happened, they should transition him to hospice care and not attempt treatment given his overall poor prognosis.
Defendant also testified at the Jimenez trial, on behalf of the defense. Although the record in this case does not include a transcript of defendant‘s trial testimony, it does include the state‘s closing argument. The prosecutor urged the jury to reject defendant‘s account that he had lied during his police interview and his self-incriminating testimony at trial that, as the prosecutor put it, “it was all me, [Jimenez] didn‘t do anything.” She explained that defendant had already accepted a plea deal and could testify without consequences: Defendant “has already done his thing, he‘s not going to get into any more trouble, he knows that. So why not protect [Jimenez].” The jury convicted Jimenez, and he was sentenced to 160 months in prison for the assault and the robbery.
C. Homicide Charges and Defendant‘s Motion to Dismiss
In August 2014—six months after defendant‘s pleas on the assault and robbery
The state then pursued homicide charges against defendant and Jimenez. In 2015, a grand jury issued separate indictments against them. Each was charged with murder,
The trial court held an evidentiary hearing on defendant‘s motion to dismiss. The prosecutor who had handled defendant‘s plea agreement and the Jimenez trial was the state‘s primary witness. She testified that, when she initiated the prosecution of defendant in early August 2013, she had information about the victim‘s condition from law enforcement. She knew then that the victim “was severely injured” and “there was some question at that point” about whether he was likely to live because of the severity of his injuries. By the time of the indictment later in August, the prosecutor had spoken with the victim‘s family and knew that his injuries were severe and there was “going to be quite a bit of aftercare“; however, she did not know that the victim would die. At the time of the first settlement conference, she was getting information from the victim‘s father and knew that the victim was still living but with limited mobility and limited speech. She explained that what would happen should the victim die was not discussed during the prosecution of either of the codefendants. She also testified that, at the time of defendant‘s plea and sentencing hearing and then later in the Jimenez proceedings, she “didn‘t know what was going to ultimately happen” to the victim or that he was “likely to die within a finite period of time.”
The victim‘s brother also testified for the state regarding the victim‘s health and medical status at various stages in the case. He noted that the victim was conscious but not speaking at the time of defendant‘s sentencing. The family was still hoping to see more improvement in his condition then; however, by the time of the Jimenez trial, the victim‘s condition had come to a plateau. He further explained that, in August 2014, his family decided to use hospice care for the victim, and the victim died within three or four days.
Both the state and defendant introduced portions of the transcript of the Jimenez trial as exhibits. The state also introduced other documents concerning defendant‘s and Jimenez‘s assault and robbery cases, including transcripts and documents relating to defendant‘s pleas.
D. The Trial Court‘s Ruling and Order of Dismissal
The trial court stated findings on the record. The court found that the victim was “severely injured and that the state knew at the time of the assault and at the time of filing *** charges that he could die—possibly die from his injuries.” It also found that, when defendant pleaded guilty and no contest to the assault and robbery charges pursuant to the plea negotiations, the “plea agreement did not specifically address whether [defendant] would be subject to further prosecution if [the victim] later died.” There was “no discussion during the course of the [Jimenez] trial whether [defendant] would be offered immunity or anything else for his testimony[.]” Defendant had testified at the Jimenez trial “apparently in the reliance that this case was concluded when he had entered his pleas and that he was not subject to further prosecution.” In fact, “the prosecutor at that time indicated that [defendant] had satisfied his obligations to the state and that he was not at risk of further prosecution.” The court further found that the victim died because of injuries he sustained in the 2013 assault and that “it was reasonably foreseeable that [the victim] would die as a result of the injuries he sustained in that assault.”
The court also issued its ruling on the motions from the bench. Although it concluded that former and double jeopardy did not bar the homicide prosecutions of defendant
The court subsequently entered a written order dismissing the case that contained similar and additional findings and legal conclusions. The court found that the “state was aware at the time of the charges that [the victim] could die as a result of his injuries“; during “plea negotiations, the state did not specifically preserve the right to bring more serious charges” against defendant; “defendant gave up rights that may have resulted in his acquittal with the belief that he was terminating this incident“; and defendant “was not advised that his testimony could be used against him in a future criminal matter.” The court explained that defendant‘s out-of-state authorities were persuasive and that, because the victim‘s death had been reasonably foreseeable at the time of the plea negotiations, the state was obligated to affirmatively reserve the right to bring future charges and to inform defendant that the agreement would not preclude future prosecution. The state assigns error to the order of dismissal.
II. ANALYSIS
On appeal, both parties point to the omission of any mention in either the plea negotiations or the plea agreement of the state‘s possible reprosecution of defendant should the victim die. Then, using different sets of legal principles, the parties draw contradictory conclusions from that omission.
The state contends that, although it did not reserve the right to prosecute defendant for murder and manslaughter, such a reservation is not necessary under Oregon law. Its view is that it retained the right to prosecute defendant absent an express agreement with him to the contrary. In large part, the state‘s argument depends on its normal discretion to prosecute a defendant for homicide long after the causal event occurred and the absence of any statute or case law banning such prosecution. The state also relies on principles of contract interpretation found in Oregon‘s common law of contracts. According to the state, the onus was on defendant and his legal counsel to recognize the risk of the victim‘s later death—and the subsequent possibility of a homicide prosecution—during the negotiation and crafting of the plea agreement and, concomitantly, to address those risks in the plea agreement. Thus, in the state‘s view, the trial court erred by dismissing the indictment.
Defendant argues that the trial court‘s ruling can be explained and justified by reference to contract law, coupled with due regard for the standards required for a criminal defendant‘s knowing and voluntary waiver of trial-related constitutional rights. In particular, defendant views the trial court‘s ruling—that the state was precluded from reprosecuting defendant unless it disclosed during plea negotiations or in the plea agreement itself that it might bring homicide charges should the victim die—as embodying a default rule, as that term is understood in contract law. When a court supplies a missing term based upon a default rule, the implied contract term is based not upon the actual intent of the parties but instead on a legal rule. Peter Linzer, 6 Corbin on Contracts § 26.1, 400 (Joseph M. Perillo rev ed 2010) (implied term based on a default rule “may come directly from the law, regardless of the parties’ intent“). In this case, defendant urges this court to approve a default rule that arises in the face of the parties’ silence concerning the state‘s reprosecution of a defendant should the victim die: the state will bear the risk of the victim‘s death and cannot reprosecute the defendant for homicide.
For the reasons explained below, we conclude that, in the absence of a statutory rule specifically addressing the issue, a contractual default rule or “gap-filler” is required when (1) the victim‘s death is reasonably foreseeable to the prosecutor and (2) the plea agreement does not address the subject
A. Contract Omissions
We begin by identifying the salient principles of contract law that apply to the plea agreement. That threshold issue depends on the nature of the contract problem before us, an issue that the parties dispute. We agree with defendant that this case is best understood as one of contract omission.
The state cites Yogman v. Parrott, 325 Or 358, 361, 363-64, 937 P2d 1019 (1997), to explain that a court first examines the text of a disputed contract provision, and then, if an ambiguity exists, considers extrinsic evidence to determine the parties’ intent. The state then observes that the plea agreement contained no prosecutorial promise—either express or implied—to refrain from bringing homicide charges if the victim died, and it did not otherwise refer to the possibility of the victim‘s death. And, in the memorializing plea petition, defendant confirmed that the prosecutor had made no promises (other than any stated in open court) to induce the plea. Given those features—particularly the omission of any term concerning the possibility of the victim‘s death—the state reads the plea agreement as plainly permitting it to reprosecute defendant for homicide.
But as defendant points out, the parties are not arguing about the meaning of a word or phrase or the operation of unclear provisions in the plea agreement. Although the state is correct that the plea agreement does not address the victim‘s death or defendant‘s reprosecution, the principles of contract interpretation that the state cites would neatly apply in the case of a contract term that has a disputed meaning. As we have recognized before, Yogman provides an analytical “framework for contract interpretation.” Peace River Seed Co-Op v. Proseeds Marketing, Inc., 355 Or 44, 65, 322 P3d 531 (2014). That analytical framework works well when the proper understanding of a contractual provision is at issue. See Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 379, 271 P3d 103 (2011) (citing Yogman and explaining that, to “resolve a dispute over the meaning of a contractual provision, this court first considers the text of the disputed provision in the context of the contract as a whole to determine whether the disputed provision is ambiguous“); James v. Clackamas County, 353 Or 431, 442, 299 P3d 526 (2013) (applying Yogman textual analysis after identifying the “interpretive issue” in the case). Professor Farnsworth explains that the contract problems in those types of cases can be characterized as disputes over expression, because of vagueness or ambiguity in the terms the parties used. E. Allan Farnsworth, Disputes Over Omission in Contracts, 68 Colum L Rev 860, 860 (1968).
In contrast, as defendant argues, the contract problem in this case concerns the effect of a contract omission. The parties’ oral contract omits any mention of the contingency at issue, which the trial court found was reasonably foreseeable: that the victim would die after the parties entered into the plea agreement. Farnsworth describes that kind of contract problem as a dispute over omission, that is, a dispute over what the parties did not say and “the effect of their contract on a situation for which they have failed to provide.” Id. We agree with that characterization of the contract issue.
B. Contractual Default Rules Generally
When contracts are incomplete because the parties have not bargained concerning a term that is essential to determining their rights and obligations, so-called default rules are sometimes employed by courts to supply the missing term. E. Allan Farnsworth, 2 Farnsworth on Contracts § 7.16, 346 (3d ed 2004) (the rules that are the source of contract terms deemed to apply as a matter of law are commonly called default rules). In those instances, the parties’ silence functions as the equivalent of assent to a default rule. See Farnsworth, 2 Farnsworth on Contracts § 7.16 at 351-52. One commentator describes the “default
“A word-processing program that required us to set every variable needed to write a page of text would be more trouble than it was worth. Instead, all word-processing programs provide default settings for such variables as margins, type fonts, and line spacing and leave it to the user to change any of these default settings to better suit his or her purposes.”
Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 Va L Rev 821, 824 (1992). Thus, a default rule is just that. Parties to a contract may expressly agree on terms that are the subject of a default rule and that are contrary to it. See Farnsworth, 2 Farnsworth on Contracts § 7.16 at 346; Linzer, 6 Corbin on Contracts § 26.3 at 426.
As defendant points out, this court has imposed contractual default rules before—albeit couched as “implied” terms—to account for an omission in the contract. In Browne & Co. v. John P. Sharkey Co., 58 Or 480, 482, 115 P 156 (1911), for example, when a contract was silent as to the time of performance, this court applied a default rule that performance must be completed within reasonable time. In Kamin v. Kuhnau, 232 Or 139, 143-44, 374 P2d 912 (1962), the plaintiff inventor paid the defendant to use his machine shop to develop his ideas for a new garbage truck packer, and the defendant subsequently manufactured a number of the developed units for the plaintiff before announcing that he would manufacture garbage truck bodies in competition with the plaintiff. This court found an implied agreement by the defendant not to appropriate the plaintiff‘s product ideas, regardless of whether the plaintiff could establish that the defendant had expressly agreed on that point, “as a legal conclusion recognizing the need for ethical practices in the commercial world.” Id. at 152. Similarly, in Perkins v. Standard Oil Co., 235 Or 7, 16-18, 383 P2d 107 (1963), this court imposed an “implied” condition of the contract that restricted the defendant from soliciting plaintiff‘s customers.
Default rules may be based on, among other things, common practices and usages regularly observed in transactions in particular areas and, as defendant notes, “basic principles of justice.” See Farnsworth, 1 Farnsworth on Contracts § 1.10 at 64. Courts determining what default rule to apply, Farnsworth counsels, should not rely on “hypothetical expectations or fictitious intentions, but [on] basic principles of justice that guide a court in extrapolating from the situations for which the parties provided to the one for which they did not.” Farnsworth, 2 Farnsworth on Contracts § 7.16 at 351. In addition, a court may “consider the realities of the negotiating and drafting processes and supply a term that will put the burden of expression on the party that can better cope with it because of bargaining power and drafting skill.” Id. at 353.
C. Assuming the Risk of the Victim‘s Death
With that understanding of the contract problem presented, we turn to what Oregon law should provide given the contract omission in the plea agreement. In the state‘s view, because the plea agreement is silent, it may reprosecute defendant. We begin with the state‘s two-pronged argument that no contractual default rule is appropriate for the omission. The state‘s argument is based in part on contract law and in part on Oregon statutes concerning plea agreements.
In its reply brief, the state contends that Smith Tug v. Columbia-Pac. Towing, 250 Or 612, 443 P2d 205 (1968), provides the answer under Oregon‘s common law of contracts. Under the holding of Smith Tug, the state argues, if a risk is foreseeable, then the absence of any contractual provision about the risk “gives rise to the inference that the risk was assumed.” Id. at 643. The state observes, and defendant does not disagree, that the state‘s decision to prosecute defendant for the victim‘s death after the initial prosecution for assault and robbery would violate neither statutory nor constitutional jeopardy protections,1 and the
The state‘s reliance on Smith Tug is unpersuasive, for two reasons. First, as the state acknowledges, the trial court determined, and the record reflects, that it was reasonably foreseeable to the state that the victim would die from his injuries during the assault. There is no evidence that the victim‘s death was foreseeable to defendant and his counsel, and the trial court made no parallel determination as to the knowledge that defendant and his counsel possessed about the victim. And because of that factual problem, the state‘s argument faces a second difficulty: because the victim‘s death was foreseeable to the state, to the extent that Smith Tug applies to the circumstances here, that case may suggest that the state, not defendant, assumed the risk of the victim‘s death.2
In addition to its contract law argument, the state also relies on two statutes. Citing
“(1) In cases [meeting certain criteria], the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.
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“(3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:
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“(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.”
The state characterizes the phrase “refrain from bringing potential charges” in paragraph (3)(c) as specifically contemplating that a prosecutor may promise not to bring future charges, but, if not, nothing precludes a later prosecution based on new facts. The second statute identified by the state provides that a defense attorney has a duty to aid the client in reaching a decision concerning a potential plea agreement, which in the state‘s view cuts against the argument that a default rule should favor defendants. See
We conclude that neither statute is dispositive. The first,
We agree with the state that, by providing the district attorney with the authority to make concessions,
The legislative history of
When drafting section 263, the commission took note of recommendations contained in a then-recent law review article addressing plea bargaining in Oregon. Commentary § 263 at 158. Those recommendations included promoting public awareness and openness of plea bargaining; reducing “the possibility of errors” and “defendant misunderstanding“; in cases involving indigent defendants, minimizing “the effect of financial pressures tempting the established attorney to bargain quickly and the marginal attorney to bargain not at all“; and uncovering “errors of an attorney.” Id. at 158-59.
Overall, the legislative history indicates that section 263 was part of an effort to increase openness and fairness in the plea bargaining process that included consideration of the interests of indigent defendants in the criminal justice system. That effort included other provisions instructing trial courts to oversee pleas. See
As for the second statute the state cites,
As a practical matter, if we were to accept the state‘s position, that ultimately would result in the defendant bearing the consequences of the victim‘s later death in cases such as this one, despite the existence of post-conviction relief actions,
In this case, for example, the record establishes that the prosecutor had information about the victim‘s serious medical condition and possible death; there is no evidence that defense counsel had the same information. Given that record, the state‘s argument—that defendant has a remedy in post-conviction proceedings for agreeing to enter pleas to assault and robbery without knowing that potential reprosecution based on homicide charges was on the horizon—rings hollow. It is difficult to see how defense counsel could be held responsible for constitutionally inadequate representation of his client and the consequences of a failure to advise defendant of the contingent death of the victim and later prosecution when it was the prosecutor who knew that the victim‘s death was foreseeable.
We conclude that neither statute upon which the state relies negates the possibility that a default contractual rule should determine the effect of the plea agreement when the parties did not address the later death of the victim, but when that contingency was foreseeable to the state. And, as noted above, Smith Tug does not assist the state, nor does it supply a rule that takes into account the criminal law context in which the plea agreement arose.
D. Default Rule When the Victim‘s Death is Reasonably Foreseeable to the Prosecutor
We now turn to defendant‘s argument that we should affirm the trial court‘s judgment because that court properly recognized and applied a contractual default rule to fill the gap in the plea agreement.3 In defendant‘s view, the trial court properly applied a contractual default rule that accounts for a defendant‘s waiver of important trial rights and protects a defendant‘s constitutional rights in entering pleas and agreeing to convictions pursuant to a plea agreement.
We agree, in light of the constitutional rights that a defendant gives up when entering into a plea agreement and the requirement that the defendant waive those rights knowingly, the knowledge that the prosecutor possessed that made the victim‘s death reasonably foreseeable to her, the necessity of allocating the risk, and the certainty that the default rule promotes. We approve a default rule that places the burden on the state—when it is reasonably foreseeable to the prosecutor that the victim may die and the state intends to reserve the right to reprosecute a defendant for homicide in the event of the victim‘s death—to disclose its intention to the defendant as part of the plea deal, either expressly during negotiations or, preferably, as a term of the plea agreement itself.
Principles of criminal law are important to our conclusion. As we observed at the outset, a criminal defendant‘s rights—not ordinarily present in a commercial contract setting—must inform the analysis and implementation of a plea agreement. Heisser, 350 Or at 23. When, as here, a criminal defendant enters pleas of guilty and
We agree with defendant that the contractual default rule is grounded not only on contract law concerning omissions in agreements but also on the requirement that he knowingly waive his constitutional rights and on a due process right to enforce his plea agreement. See Santobello, 404 US at 262 (holding that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled“); Puckett v. United States, 556 US 129, 137, 129 S Ct 1423, 173 L Ed 2d 266 (2009) (when “a defendant agrees to a plea bargain, the Government takes on certain obligations[,]” and if they are not met, “the defendant is entitled to seek a remedy“). A valid plea agreement “presuppose[s] fairness in securing agreement between an accused and a prosecutor.” Santobello, 404 US at 261.
We also note that courts in other jurisdictions have reached the same outcome on similar facts, based in large part on the importance of a prosecutor‘s plainly stated intentions regarding future prosecution, to ensure that a defendant is aware of the actual value of those promises and his or her own concessions and waivers of trial-related rights. For example, in State v. Dye, 127 Ohio St 3d 357, 358, 939 NE2d 1217, 1219 (2010), the defendant struck a boy with his truck, which he was driving while intoxicated and with a suspended driver‘s license. The boy was severely injured, and Dye was charged with, and pleaded guilty to, aggravated vehicular assault and driving under the influence. Id. The state did not reserve a right to file additional charges should the boy die, but the boy later died from complications of his injuries. Id. at 358-59, 939 NE2d at 1220. The Ohio Supreme Court explained that its own prior case, State v. Carpenter, 68 Ohio St 3d 59, 623 NE2d 66 (1993), reh‘g den, 68 Ohio St 3d 1448, 626 NE2d 689, cert den, 513 US 1236 (1994), and cases from other states, underscore that “effect must be given to the intention of the state and the defendant in their plea bargain, and courts should enforce what they perceive to be the terms of the original plea agreement.” Dye, 127 Ohio St 3d at 362, 939 NE2d at 1222. The court concluded that, “without an expressed reservation by the state of the right to prosecute for any later homicide charge, Dye had a reasonable expectation that his plea of guilty would end criminal prosecution based on this incident” and that requiring the state to express its reservation “places no unreasonable burden on prosecutors and ensures that defendants are fully aware of the consequences of their guilty pleas.” Id. at 363, 939 NE2d at 1223. See also State v. Rivers, 283 Conn 713, 726, 931 A2d 185, 193 (2007) (terms of plea agreements should be stated clearly and unambiguously, so that defendant knows what is expected from him
To be clear, this is not a case in which defendant seeks to undo or rescind the plea agreement based on misapprehension of or lack of voluntary assent to its terms. Rather, defendant ultimately seeks to enforce the plea agreement as he understood it. Through the plea agreement in this case, defendant gave up his trial-related constitutional rights and agreed to serve a lengthy, 120-month term in prison. He did so, the trial court found, “with the belief that he was terminating this incident” and any future prosecution.4 When, at the time of the plea agreement, the victim‘s death was reasonably foreseeable to the state, then putting the burden of expression on the state to disclose the risk of the victim‘s death and its reservation of the right to reprosecute in that event provides a reasonable safeguard for defendants waiving constitutional rights and creates certainty concerning who bears the risk. In this case, the prosecutor was aware of facts concerning the victim‘s health through the prosecutor‘s relationship with the victim‘s family, the police, and the victim‘s medical providers, who testified for the state. In accordance with the trial court‘s conclusion, the victim‘s death was reasonably foreseeable to the prosecutor.
As the United States Supreme Court has more recently stated in regard to plea agreements, “the reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 US 156, 170, 132 S Ct 1376, 1388, 183 L Ed 2d 398 (2012). This court has recognized that “plea agreements are crucial to the proper functioning of the criminal justice system.” Heisser, 350 Or at 21.
In such a system of pleas, prosecutors have an incentive to cooperate in ensuring that defendants have access to basic information that would satisfy the requirement that they intelligently enter a plea agreement and waive their rights: the reliability of the plea agreement, because the defendant understood it and knowingly and intelligently accepted it. Among defense counsel, the court, and the prosecutor in this case, it was the prosecutor who was in the best position to foresee and predict that the victim could die, and it was the prosecutor who would likely reprosecute defendant for homicide. The default rule we approve in this case encourages the prosecutor to disclose that risk and potential reprosecution. The burden
The judgment of the circuit court is affirmed.
Notes
320 Or at 437 (emphasis in original).“The State agrees not to file other charges concerning criminal behavior concerning [the victims] with the following exception. This agreement does not prohibit the State of Oregon from charging the defendant with Aggravated Murder, Murder, or any other degree of criminal homicide should [one of the victims] die from injuries suffered *** from conduct of the defendant. This agreement does not limit the Court‘s right to sentence the defendant to any term authorized by statute in the event that charges are filed against the defendant for the death of [one of the victims]. This agreement does not limit the right to the defendant to raise any appropriate legal challenges to the filing of any degree of criminal homicide for the death of [the victim].”