State v. Walsh
373 Or. 714
Or.2025Check Treatment714 June 5, 2025 No. 22
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JAMES CLARE WALSH IV,
Respondent on Review.
(CC 20CR11620) (CA A178543) (SC S070940)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 9, 2025.
Christopher A. Perdue, Assistant Attorney General,
Salem, argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Anne Fujita Munsey, Deputy Public Defender, Oregon
Public Defense Commission, Salem, argued the cause and
filed the brief for respondent on review. Also on the brief
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
BUSHONG, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
______________
* Appeal from Clackamas County Circuit Court, Ulanda Watkins, Judge.
330 Or App 617(2024) (nonprecedential memorandum opinion). Cite as373 Or 714
(2025) 715
716 State v. Walsh
BUSHONG, J.
This criminal case requires us to determine the
consequences of a dispute over a stipulation in a plea agree-
ment that the court “may impose” consecutive sentences
on two charges. At sentencing, defendant contended that
Oregon law precluded the trial court from imposing consec-
utive sentences, because it had not made the findings that
are ordinarily required by ORS 137.123(5) for consecutive
sentences.1 The state disagreed, contending that defen-
dant’s stipulation that the court “may impose” consecutive
sentences meant that the court could do so without making
the statutory findings. That triggered a discussion between
counsel and the court about the effect of the “may impose”
provision and whether the parties had reached a binding
plea agreement. After that discussion, defendant withdrew
his legal argument and affirmed that he was stipulating
that the court could impose consecutive sentences without
making the statutory findings. The court then proceeded to
sentence defendant on two counts—imposing consecutive
sentences on those counts without making the statutory
findings—and dismissing the remaining counts.
Defendant appealed, and the Court of Appeals
reversed, concluding that “nothing in the plea agreement”
prevented defendant from arguing that consecutive sen-
tences were legally impermissible absent the required statu-
tory findings, and that the trial court had erred “in conclud-
ing that the parties had not reached a plea agreement[.]”
State v. Walsh, 330 Or App 617, 619 (2024) (nonprecedential
memorandum opinion). We allowed the state’s petition for
review and now reverse the Court of Appeals.
As we will explain, although the plea agreement did
not mention the statutory findings required for consecutive
sentences and can therefore be understood as defendant
contended at sentencing, its statement that the court “may
impose” consecutive sentences also can plausibly be read
to mean that the court had the legal authority to impose
1
As discussed later in this opinion, where a defendant is convicted of multi-
ple offenses arising out of a continuous and uninterrupted course of conduct, the
court may impose consecutive sentences only if it makes the findings required
by ORS 137.123(5). The parties do not dispute that defendant’s convictions here
arose out of a continuous and uninterrupted course of conduct.
Cite as 373 Or 714 (2025) 717
consecutive sentences without making those findings, as
the state contends. The issue here is whether the trial court
erred in how it addressed that ambiguity under the cir-
cumstances of this case. As explained below, those circum-
stances include the court’s statement that, if the parties did
not resolve their dispute, it would treat the plea as with-
drawn and return the case to the trial docket. Defendant
did not object to that statement or argue that it was errone-
ous. Instead, defendant decided to withdraw his argument
that the trial court could impose consecutive sentences only
if the court made the findings required by ORS 137.123(5),
and he affirmed that he wished to proceed to sentencing.
We conclude that, under those circumstances, the
trial court did not err in how it handled the situation when
confronted with the ambiguous plea agreement at sentenc-
ing. Accordingly, we reverse the decision of the Court of
Appeals and affirm the judgment of the trial court.
I. BACKGROUND
The facts are procedural and taken from the trial
court record. Defendant was charged by indictment with
four Measure 11 offenses: one count of first-degree unlaw-
ful sexual penetration against a child victim under the age
of 12 (Count 1), and three counts of first-degree sexual
abuse for acts committed against the same victim (Counts
2 to 4).2 First-degree unlawful sexual penetration carries a
mandatory sentence of 300 months in prison, ORS 137.700
(2)(b)(F), and the other counts are each subject to manda-
tory sentences of 75 months in prison, ORS 137.700(2)(a)(Q).
The parties informed the court the day before trial
was scheduled to begin that a trial would not be necessary,
because they had reached an agreement on a plea. Pursuant
to the parties’ written plea agreement, defendant pleaded
guilty on Count 1 to the lesser-included offense of attempted
first-degree unlawful sexual penetration—thereby avoid-
ing the mandatory 300-month sentence—and one count of
first-degree sexual abuse (Count 4). The other two counts
2
Measure 11, adopted by the people in 1994, provides for mandatory sen-
tences for certain offenses, as codified in ORS 137.700. See State ex rel Huddleston
v. Sawyer, 324 Or 597, 599,932 P2d 1145
(1997) (describing Measure 11).
718 State v. Walsh
of first-degree sexual abuse (Counts 2 and 3) were to be dis-
missed at sentencing.
The parties did not reach an agreement on the length
of the prison term that the court should impose, but they
agreed to limit their requests to a prison term of between
75 and 180 months. Defendant could receive a prison sen-
tence totaling 180 months if the sentences on the two counts
ran consecutively, and he could receive a prison sentence of
75 months if they ran concurrently and the court departed
downward from the presumptive sentence on Count 1.3 The
written plea agreement included a provision stating that
“[d]efendant stipulates that the state may argue for and the
court may impose consecutive sentences” on Counts 1 and 4.
At the plea hearing, the court accepted defendant’s guilty
pleas on those counts, ordered a presentence investigation
report, and set a date for sentencing.
The presentence investigation report recommended
a 110-month sentence on Count 1 and the mandatory
75-month sentence on Count 4, with those sentences to run
concurrently. The state filed a sentencing memorandum
requesting a 180-month prison sentence—105 months on
Count 1 and 75 months on Count 4, with those sentences
to run consecutively. Neither the presentence investigation
report nor the sentencing memorandum addressed whether
findings would be required by ORS 137.123(5) to impose con-
secutive sentences.
At sentencing—three months after the plea hearing—
a dispute arose about the meaning of the plea agreement,
specifically, the “court may impose” provision. The discus-
sion between counsel and the court regarding that dispute
is critical to resolving the issue presented on review, so we
set forth that discussion in some detail.
After the state urged the court to impose consecutive
sentences for the reasons set forth in the state’s sentencing
3
The presumptive prison sentence on the attempted first-degree unlawful
sexual penetration charge—a lesser-included offense on Count 1—was 91 to 110
months because defendant stipulated to a sentencing guidelines grid block of
10-D as part of his plea agreement. The plea agreement stated that defendant
“may seek any sentence” and that the state “may ask no more than 105 months”
on the attempted penetration charge that would be consecutive to the mandatory
75-month prison sentence on the first-degree sexual abuse charge (Count 4).
Cite as 373 Or 714 (2025) 719
memorandum and summarized at the sentencing hearing,
defendant contended that the trial court was required to
impose the sentences concurrently under ORS 137.123(4).
Specifically, defendant argued that, because the convic-
tions arose out of a continuous and uninterrupted course
of conduct, the court had no legal authority to impose con-
secutive sentences without making the findings required
by ORS 137.123(5) for consecutive sentences under those
circumstances.4
The prosecutor then interrupted the defense argu-
ment, stating that, because defendant had stipulated that
sentences could be imposed consecutively, the prosecutor
“didn’t think that [a statutory finding] was an issue to be
proven in this case.” The prosecutor continued, “if that’s not
the case, we’re needing to have a conversation that there
wasn’t a meeting of the minds for this resolution.” Defense
counsel responded, “I guess I was reading that [provision] as
[requiring] the appropriate finding.” The court then asked
defense counsel if he was arguing that consecutive sentences
were “not lawful,” or that the stipulation meant that the
state did not need to prove that this was not the same con-
tinuous and uninterrupted course of conduct. Defense coun-
sel responded that it’s “clearly [an] uninterrupted course
of conduct,” so the question was the meaning of the phrase
4
ORS 137.123 provides, in part:
“(4) When a defendant has been found guilty of more than one criminal
offense arising out of a continuous and uninterrupted course of conduct, the
sentences imposed for each resulting conviction shall be concurrent unless
the court complies with the procedures set forth in subsection (5) of this
section.
“(5) The court has discretion to impose consecutive terms of imprison-
ment for separate convictions arising out of a continuous and uninterrupted
course of conduct only if the court finds:
“(a) That the criminal offense for which a consecutive sentence is con-
templated was not merely an incidental violation of a separate statutory pro-
vision in the course of the commission of a more serious crime but rather was
an indication of defendant’s willingness to commit more than one criminal
offense; or
“(b) The criminal offense for which a consecutive sentence is contem-
plated caused or created a risk of causing greater or qualitatively different
loss, injury or harm to the victim or caused or created a risk of causing loss,
injury or harm to a different victim than was caused or threatened by the
other offense or offenses committed during a continuous and uninterrupted
course of conduct.”
720 State v. Walsh
“[d]efendant stipulates that the state may argue for and the
court may impose” consecutive sentences on Counts 1 and 4.
Specifically, counsel explained, the question was whether
that stipulation was “waiving a statutory finding that would
be required for a consecutive sentence.”
The court agreed, stating, “Yep. That is the ques-
tion.” Defense counsel then stated that he “should probably
have a conversation” with his client because he understood
defendant’s stipulation that the court “may impose” consec-
utive sentences to mean that the court could do so only if it
made “the appropriate finding.” Counsel explained that he
understood “may” to mean that consecutive sentences were
“possible,” but only if the court made the findings required
by ORS 137.123(5).
The prosecutor responded that the defense stipu-
lation that the court “may impose” consecutive sentences
was comparable to the state’s stipulation that defendant
could seek a downward departure to 75 months on Count 1
without showing substantial and compelling reasons for the
departure, as would otherwise be required by the sentenc-
ing guidelines. Defense counsel responded that he never
understood the state’s stipulation to mean that he did not
have to show compelling reasons for a downward departure
on Count 1, just that he “may argue for it.”
At that point, the trial court suggested that the par-
ties “have to decide if there was clearly a meeting of the minds
because this is a pretty big and important sticking point, and
it may undo the entire plea.” Defense counsel responded that
he could see “two ways this gets resolved.” He explained that
he wanted “to be sure” that he understood “the choices” before
talking to his client. Counsel asked whether the options were
as follows: (1) the parties “present this [dispute] to the court,
and it’s a court determination”; or (2) “as long as the state
believes that they were asking us to waive [the findings
required by] ORS 137.123[,] * * * that would result in the plea
being taken back.” Counsel explained that “I want to make
sure I give [defendant] the choices.”
In response, the court did not address whether the
two options identified by defense counsel were in fact options
Cite as 373 Or 714 (2025) 721
or the only two options that were available to resolving the
dispute. Instead, the court stated that the case had been set
for trial, and that the parties had then informed the court,
on “the eve of trial,” that they had a stipulation that resolved
the case, so the court had canceled the trial and accepted
defendant’s guilty pleas on Counts 1 and 4. But given the
parties’ subsequent dispute at sentencing over the intended
effect of their stipulation, the court stated that it “would
interpret this” situation as “you all did not have a stipu-
lated agreement,” which would mean that “the plea would
be undone, and [the case] would go back on the trial docket.”
Defense counsel then conferred with defendant off
the record. Back on the record, defense counsel explained
that his client understood that, if he elected to have counsel
continue with the legal argument that he had been making,
that would result in “a withdrawal of the plea” and the case
would be “put back on the trial docket.” Counsel explained
that, “[h]aving considered the choices,” defendant “elects to
* * * withdraw the legal argument” that counsel was mak-
ing, relying instead upon “further arguments that [counsel
is] going to make for discretionary reasons that the court
should impose a concurrent sentence.” Defense counsel then
proceeded with his argument, urging the court to impose
a 75-month sentence, requesting sympathy and mercy, and
identifying other mitigating factors.
The prosecutor began the state’s rebuttal argument
by asking defense counsel to confirm that defendant was not
only “withdrawing his [legal] argument” that consecutive
sentences were not permitted, but that defendant was “stip-
ulating that the court can impose a consecutive sentence
and is waiving any statutory or constitutional objection” to
consecutive sentences. Defense counsel responded, “Are you
asking me?” The prosecutor responded, “Yes. Or the defen-
dant.” The prosecutor explained that she just wanted “to
make sure the record is clear that the defendant is waiving
those objections.” The court then intervened, stating that
the court understood defense counsel to say, after speak-
ing with his client, that “rather than void the plea because
there’s not a meeting of the minds,” defendant is stipulat-
ing “that [ORS] 137.123 does not apply, and the court may
722 State v. Walsh
sentence the defendant to consecutive sentences, not that
[defendant is] stipulating to consecutive sentences, but just
that 137.123 is waived.”
In response, defense counsel stated, “Yeah, I think
that’s right, and to put even a little finer point on it,” counsel
explained that defendant was stipulating that the phrase
“the court may impose” consecutive sentences meant that
the court in its discretion could impose consecutive sen-
tences without making the findings that would otherwise
be required by ORS 137.123(5). The state then finished its
rebuttal argument without further discussion of this issue.
The trial court ultimately imposed a 105-month prison sen-
tence on Count 1 that was consecutive to the mandatory
75-month prison sentence on Count 4. Defendant appealed.
The Court of Appeals began by pointing out that a
plea agreement “is generally interpreted according to con-
tract law.” Walsh, 330 Or App at 618(citing State v. Heisser,350 Or 12, 23
,249 P3d 113
(2011)). Thus, the court stated that its “ ‘first inquiry is what the words of the contract say, not what the parties say about it.’ ”Id.
at 619 (quoting Heisser,350 Or at 25
). The court then concluded that “nothing in the plea agreement prevented defendant from arguing that the statute requires the imposition of concurrent sentences.”Id.
The court further determined that the trial court had “erred in concluding that the parties had not reached a plea agree- ment because there was no ‘meeting of the minds,’ and that defendant could therefore not raise his legal argument.”Id.
The court remanded for resentencing “to allow defendant to make his legal argument challenging the imposition of consecutive sentences.”Id.
The state petitioned for, and we allowed, review.
II. DISCUSSION
As discussed above, the Court of Appeals made two
legal rulings about the events leading to the trial court’s
imposition of consecutive sentences in this case: (1) Nothing
in the parties’ plea agreement precluded defendant from
arguing that the court had to make the factual findings
required by ORS 137.123(5) before it could impose consec-
utive sentences; and (2) the trial court had erroneously
Cite as 373 Or 714(2025) 723 concluded that the parties had not reached an agreement because there was no “meeting of the minds” on that critical term. We review those rulings for legal error. Heisser,350 Or at 20-21
(applying that principle).
On review, the state contends that the Court of
Appeals erred because the plea agreement unambigu-
ously authorized the trial court to impose consecutive sen-
tences without making findings under ORS 137.123(5).
Alternatively, the state contends that the agreement was
ambiguous, and that the trial court did not err in address-
ing that ambiguity and, ultimately, sentencing defendant
after he withdrew his objection based on the lack of find-
ings. Defendant contends that the Court of Appeals correctly
determined that the plea agreement was unambiguous, and
that nothing in that agreement precluded him from contend-
ing that the trial court could impose consecutive sentences
only if it made the findings required by ORS 137.123(5).
Alternatively, defendant contends that, if the plea agreement
was ambiguous, then the court was required to resolve the
ambiguity by interpreting the agreement against the state,
instead of threatening to “undo” the agreement entirely.
Although we have not previously decided the legal
issue presented in this case, we have addressed the legal
principles governing plea agreements in Oregon that will
inform its resolution. We begin with an overview of those
principles before applying them to the circumstances here.
A. Plea Agreements Under Oregon Law
In 1973, the Oregon Legislature “adopted the
American Bar Association’s recommendation to formally
organize and control the plea negotiation process.” State
v. McDonnell, 310 Or 98, 102-03,794 P2d 780
(1990) (cit- ing Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Procedure Code, Final Draft and Report, § 263, 158 (Nov 1972)). The legislature under- stood, at that time, that negotiated guilty pleas had been publicly criticized based on the perception that they resulted in “overly lenient dispositions[.]” McDonnell,310 Or at 103
. But, because the legislature saw plea negotiations as “an essential component of an efficient and effective justice 724 State v. Walsh system,” it enacted statutory standards to control “the cir- cumstances under which a district attorney could negotiate a plea together with procedures designed to make plea nego- tiations open to public scrutiny.”Id.
As a result, since 1973, an Oregon prosecutor’s
authority to “enter into plea negotiations and plea agree-
ments has been ‘formally organized and controlled’ by stat-
ute.” Heisser, 350 Or at 22(quoting McDonnell,310 Or at 102-03
) (internal brackets omitted). By statute, a prosecu-
tor may give concessions to a defendant in exchange for a
plea of guilty or no contest as part of a plea agreement. ORS
135.405(3). Specifically, the prosecutor may agree, depend-
ing on the circumstances: (a) to make or not to oppose favor-
able recommendations as to the sentence; (b) to seek or not
to oppose dismissal of the offense charged if the defendant
enters a guilty or no contest plea to another offense rea-
sonably related to the defendant’s conduct; or (c) to seek or
not to oppose dismissal of other charges or to refrain from
bringing other potential charges. Id.5
If the parties inform the trial court that they have
reached a tentative plea agreement, the trial court must
“determine the nature of the agreement.” ORS 135.390(2). The
statutory scheme governing plea agreements “contemplates
different kinds of agreements.” Heisser, 350 Or at 22. Under certain plea agreements, the trial court must give the nego- tiated agreement “due consideration” as to sentencing. ORS 135.432(4). Other plea agreements require the court to impose a sentence “as provided in the agreed disposition recommenda- tion” stated in the plea agreement. ORS 135.390(5)(a). In that kind of agreement—commonly known as a “contract plea”—if the court determines that the agreed disposition recommen- dation is “inappropriate,” the court is required to so advise the parties “and allow the defendant an opportunity to withdraw the plea.” ORS 135.390(5)(b); see also Heisser,350 Or at 22-23
(describing the different types of plea agreements).
In interpreting plea agreements, this court has
indicated that principles of contract law “generally (but not
5
Another statute provides that a prosecutor may not condition the plea offer on
defendant’s waiver of certain rights specified in the statute or require the defendant
to stipulate to the unconstitutionality of an existing law. ORS 135.418(1)(a), (b).
Cite as 373 Or 714(2025) 725 invariably)” will control. Heisser,350 Or at 23
. Contract law “is not necessarily the beginning or the end of the analysis” because criminal cases “involve constitutional and statutory rights not ordinarily found in contracts between private parties, and those rights at times may override contractual principles.” Id.; see also State v. King,361 Or 646, 648
,398 P3d 336
(2017) (stating that “contract principles that apply
in a commercial setting do not necessarily suffice for an
analysis of a plea agreement”).
For example, a criminal defendant who enters into
a plea agreement “waives the constitutional rights to a
jury trial, to confront accusers, and to assert the privilege
against compulsory self-incrimination.” King, 361 Or at
666. Defendants waiving such rights “must understand the rights being waived and must do so free from coercion.”Id.
A trial court may not accept a guilty plea unless it deter- mines that the plea is “voluntary and intelligently made.” ORS 135.390(1); see also ORS 135.390(5)(a) (where there is a plea agreement, “the court shall determine whether the plea is voluntarily made”); Lyons v. Pearce,298 Or 554, 560
,694 P2d 969
(1985) (guilty pleas must be “voluntary and made with knowledge of the consequences”); Dixon v. Gladden,250 Or 580, 584
,444 P2d 11
(1968) (a guilty plea
“should be entirely voluntary, by one competent to know the
consequences, and should not be induced by fear, misappre-
hension, persuasion, promises, inadvertence, or ignorance”)
(internal citations and quotation marks omitted).
The trial court’s statutory obligation to ensure that
a plea has been “voluntarily made” continues until the defen-
dant is sentenced in accordance with the plea agreement.
See ORS 135.390(5)(a) (stating that, “if the court finds that
the plea is voluntarily made, the court shall impose sentence
as provided in the agreed disposition recommendation”).
Because of the court’s statutory and constitutional obligation
to ensure that a plea has been made voluntarily and know-
ingly, we have concluded that “a defendant’s signature on a
written plea agreement is not necessarily sufficient to create
a binding agreement[.]” Heisser, 350 Or at 23-24.
We applied those principles in Heisser in deter-
mining whether the parties in that case had entered into
726 State v. Walsh
a binding plea agreement, and if so, what the terms of that
agreement were. Id. at 14 (stating that the issue in that case
was “whether defendant and the state entered into a plea
agreement, and if so, the terms of that agreement”). Our
analysis of those issues in Heisser is instructive, so we turn
to that analysis next.
The defendant in Heisser had been indicted on one
count of first-degree robbery—a Measure 11 offense that
carried a mandatory 90-month prison term—along with two
counts of second-degree theft and one count of unauthorized
use of a vehicle (UUV). Plea negotiations facilitated by a
judge resulted in a written plea agreement that provided
that the defendant would plead guilty to the lesser-included
offense of third-degree robbery—thereby avoiding a manda-
tory Measure 11 sentence—as well as both counts of second-
degree theft and the UUV charge. Regarding sentencing,
the plea agreement provided that the state was “ ‘free to
seek departure sentences’ ” that totaled no more than 50
months in prison on the felony offenses, while the defendant
was “ ‘free to seek presumptive sentences and all concurrent
sentences,’ ” which would result in as little as 13 months in
prison. Id. at 15 (quoting plea agreement).
A dispute regarding the terms of the parties’ plea
agreement arose, and the parties returned to the judge
that had facilitated the plea negotiations. The defendant
contended that the state could not rely on an enhancement
fact in support of an upward departure sentence because
the state had failed to give the defendant timely notice that
it intended to rely on that enhancement fact, as required
by ORS 136.765.6 The state disagreed. The judge who had
facilitated the plea negotiations then, sua sponte, invited the
state to withdraw from the plea agreement, and ultimately
concluded that the plea agreement had been withdrawn. A
different judge then denied the defendant’s request to specif-
ically enforce the plea agreement, concluding that, “because
6
ORS 136.765(2) (2011), amended by Or Laws 2011, ch 267, § 1, required the
state to give written notice of the enhancement fact and the state’s intention to rely
on it within “a reasonable time after filing the accusatory instrument.” The defen-
dant in Heisser had contended that the state’s notice was not timely because it had
been given before the indictment, not “after” as required by the statute. Heisser,
350 Or at 16. It was not necessary for this court to address that contention. Cite as373 Or 714
(2025) 727
there was no meeting of the minds, there was no plea agree-
ment that could be specifically enforced.” Id. at 18.
The case then proceeded to trial, and a jury found
the defendant guilty on all counts. The trial court sentenced
the defendant to 90 months in prison for first-degree rob-
bery, and 26 months in prison for UUV, with the sentences to
run consecutively, for a total prison sentence of 116 months.7
A divided Court of Appeals reversed and remanded for the
trial court to reinstate the defendant’s guilty pleas and sen-
tence the defendant in accordance with the plea agreement.
We allowed review and affirmed the Court of Appeals’ deci-
sion, “albeit on different grounds.” Id. at 14.
We first concluded that the trial court had erred in
determining that the parties had not reached a plea agree-
ment. Id. at 20. We explained that the trial court had applied
an incorrect legal standard “when it determined that the
parties’ differing subjective understandings of the plea
agreement meant that there was no ‘meeting of the minds.’ ”
Id. at 26. Instead, we concluded that the plea agreement was
enforceable because both parties had “signed an unambigu-
ous written plea agreement” and “there was mutual assent
to the terms of that agreement[.]” Id.
We then turned to the second issue in Heisser—
determining the meaning of the terms of the agreement.
Id. As noted above, the trial court had determined that the
written plea agreement had “prohibited [the] defendant
from arguing against the timeliness of the state’s notice to
seek upward departure sentences.” Id. at 26-27. We came to
“the opposite conclusion.” Id. at 27. We noted that the plea
agreement provided that the state “ ‘is free to seek depar-
ture sentences’ ” and that the trial court had reasoned that
such a provision “impliedly limited the arguments that [the]
defendant could make in response to the state’s argument.”
Id.
The trial court’s reasoning was incorrect, we
explained, because “[n]othing in the text of the agreement
prohibited [the] defendant from pointing out any mistakes
7
The trial court also imposed concurrent 12-month sentences on each of the
two second-degree theft counts.
728 State v. Walsh
the state might have made in laying the groundwork for
upward departure sentences.” Id. Nor did anything in the
written plea agreement “limit the legal or factual arguments
that [the] defendant could make in favor of presumptive sen-
tences and against departure sentences.” Id. Thus, the defen-
dant’s agreement “to permit the state to argue for a longer
sentence did not waive his opportunity to make counterargu-
ments supporting a shorter sentence.” Id. We concluded that
we “must give effect to all provisions” of the plea agreement
and that, under the terms of the agreement in that case, “the
state was free to seek upward departure sentences, and [the]
defendant was free to oppose them.” Id. (emphasis in original).
B. Application to This Case
The foregoing summary of the legal principles gov-
erning plea agreements under Oregon law informs our res-
olution of the dispute in this case. Although plea negotia-
tions and agreements are generally controlled by statute,
no statute specifically addresses what a trial court must do
when a dispute about the meaning of the agreement arises
at the time of sentencing. In Heisser, we determined that
the court’s first task was to determine whether the parties
had mutually assented to the terms of a written plea agree-
ment. Id. at 26. Because that determination was predicated
on the finding that the agreement was unambiguous, we
did “not address the consequences if the plea agreement had
contained an ambiguous term.” Id. at 26 n 10. As we will
explain, that is the question on which this case turns.
Under general principles of contract law, when the
meaning of a contractual provision is disputed and the court
determines that the provision is ambiguous, the factfinder
may resolve the ambiguity by considering, among other
things, “extrinsic evidence of the contracting parties’ intent”
and applying, if necessary, “appropriate maxims of construc-
tion.” Yogman v. Parrott, 325 Or 358, 363-64,937 P2d 1019
(1997).8 But we do not rely on those principles of contract
8
As noted above, defendant contends that, if the plea agreement is ambig-
uous, it should be construed in favor of defendant and against the state. That
argument is apparently based on the maxim that an ambiguous provision should
be construed against the party responsible for drafting its language—here, the
state. See Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 470- 71,836 P2d 703
(1992) (stating that, “when two or more competing, plausible Cite as373 Or 714
(2025) 729 law to resolve this dispute, because again, plea agreements in criminal cases involve constitutional and statutory rights that “may override contractual principles.” King,361 Or at 648
; Heisser,350 Or at 23
.
Particularly relevant here is the requirement that
a trial court may not accept a guilty plea or proceed to sen-
tencing without ensuring that the plea had been voluntarily
and intelligently made, as discussed above. A defendant who
does not understand the consequences of a plea agreement
is not proceeding voluntarily and intelligently. See Lyons,
298 Or at 560 (guilty pleas must be “voluntary and made
with knowledge of the consequences”).
As explained above, during the colloquy at the sen-
tencing hearing, the prosecutor initially questioned, given
the parties’ different understandings of the plea agreement,
whether the parties had reached a “meeting of the minds”
sufficient to reach a stipulated plea agreement. The court
and eventually the defense counsel adopted that term in
describing the dispute. We have noted that the term “meet-
ing of the minds” has been described as “a much-abused met-
aphor” that “must not be taken too literally.” Heisser, 350 Or
at 24(internal citations and quotation marks omitted). The “meeting of the minds” requirement, we explained, is better understood as “the requirement that there be mutual assent to the terms of the agreement.”Id.
In this context, the real
concern should not have been whether there was a “meeting
of the minds,” but whether defendant’s plea had been “vol-
untary and intelligently” made with knowledge of the con-
sequences of his plea. ORS 135.390(1). In any event, under
the circumstances, it was appropriate for the trial court to
inquire further before proceeding to sentencing.
As noted above, each party contends that the plea
agreement “unambiguously” means what the party had
originally understood it to mean. Defendant contends that
nothing in the agreement expressly precluded him from
arguing that the consecutive sentences could not be imposed
because the court had not made the findings required by
interpretations prove to be reasonable after all other methods for resolving the
dispute over the meaning of particular words fail, then the rule of interpretation
against the drafter of the language becomes applicable” (emphasis omitted)).
730 State v. Walsh
ORS 137.123(5), and as noted above, the Court of Appeals
agreed.9 Because the plea agreement does not expressly
mention the statutory findings at all, that is one plausible
interpretation. But, as we explain next, we think that the
state’s interpretation is also plausible.
Defendant stipulated in the plea agreement that
“the state may argue for and the court may impose” consec-
utive sentences. (Emphasis added.) Although each party
argues that, under Heisser, that provision unambiguously
supports its understanding of the agreement, the empha-
sized wording is what distinguishes the agreement in this
case from the unambiguous agreement in Heisser. The plea
agreement in Heisser provided that the state “is free to seek”
departure sentences, but it said nothing about whether the
court could impose them. This plea agreement expressly
states that “the court may impose” consecutive sentences.
And, as we stated in Heisser, we “must give effect to all
provisions of the plea agreement.” 350 Or at 27. Thus, we
must give effect to the provision stating that “the court may
impose” consecutive sentences.
What effect we give to that provision is not entirely
clear. The dictionary defines the word “may” as to “have
power : be able”; to “have the ability or competence to :
can”; or to “have permission to.” Webster’s Third New Int’l
Dictionary 1396 (unabridged ed 2002). We have indicated
that, unlike the term “shall”—which generally creates an
obligation—“may,” at least when used in a statute, “generally
9
Defendant also argues that the “court may impose” provision in the plea
agreement is indistinguishable from the plea agreement that we addressed in State
v. Rusen, 369 Or 677,509 P3d 628
(2022). We disagree. At one point in our opinion in Rusen, we stated that the parties had agreed that the court “could impose” con- secutive sentences if it revoked the defendant’s probation.Id. at 696
. But the par- ties’ written plea agreement in that case did not include the “could impose” provi- sion, and this court—and the Court of Appeals—described the parties’ agreement differently at various points. Seeid. at 680
(stating that the agreement was that the state “could ask for” consecutive sentences, and the defendant would “be free to ask” for concurrent sentences (internal quotation marks omitted)); State v. Rusen,307 Or App 759, 761
,479 P3d 318
(2020), rev’d,369 Or 677
,509 P3d 628
(2022) (stating that the parties had agreed that, upon revocation, “the state could argue for consecutive sentences and [the] defendant could argue for concurrent ones”). The precise wording of the parties’ agreement in Rusen did not matter because neither appellate court was attempting to interpret and enforce their agreement. Rather, the appellate courts described the agreement solely to determine whether ORS 138.105(9) precluded review of the defendant’s claim of sentencing error. Cite as373 Or 714
(2025) 731 implies that the legislature intended to create only the authority to act.” Doyle v. City of Medford,347 Or 564
, 570- 71,227 P3d 683
(2010); see also Friends of Columbia Gorge v. Columbia River (S055915),346 Or 415, 426-27
,212 P3d 1243
(2009) (“[I]n ordinary usage, ‘shall’ creates a mandatory
duty, while ‘may’ creates only authority to act.” (Internal
quotation marks and brackets omitted.)).
Thus, both the dictionary definition and our prior
cases suggest that the phrase “the trial court may impose”
consecutive sentences can mean that the court had the author-
ity to impose consecutive sentences. The state contends that,
to give some effect to the parties’ stipulation, that authority
must mean something more than the court’s already exist-
ing statutory authority to impose consecutive sentences after
making the findings required by ORS 137.123(5). The “some-
thing more” in this context would treat the stipulation as
either a waiver of the statutory requirement, or a stipulation
to facts that would support the required statutory findings.
We agree that it is plausible to read the parties’ stipulation
that the court “may impose” consecutive sentences to be an
agreement that the trial court had the authority to impose
consecutive sentences without making those findings, leav-
ing it to the court’s discretion whether it should impose con-
secutive sentences under the circumstances.
That understanding of the “court may impose” pro-
vision makes sense in this context. A trial court’s obliga-
tion to determine that a plea is “voluntary and intelligently
made,” ORS 135.390(1), can involve an extensive colloquy
between the court and the defendant, but it does not typi-
cally involve the presentation of witness testimony or other
evidence to support findings that the trial court might be
required to make at the time of sentencing. The findings
that would be required for consecutive sentences under ORS
137.123(5)—that the defendant’s commission of the offense
“was an indication of defendant’s willingness” to commit
more than one criminal offense, ORS 137.123(5)(a), or that
the defendant’s conduct caused or created a risk of causing
“greater or qualitatively different loss, injury or harm to
the victim” than the harm caused by the other offense, ORS
137.123(5)(b)—could, if disputed, require the state to call
732 State v. Walsh
witnesses or present other evidence sufficient to allow the
court to make the required findings.
Instead of requiring the state to present evidence
that would support the statutory findings, a defendant could
stipulate as a factual matter that the defendant’s conduct
demonstrated that he had been willing to commit more than
one criminal offense, ORS 137.123(5)(a), or that his conduct
leading to his conviction on one count had caused greater
or qualitatively different harm to the victim than the harm
caused by the conduct resulting in the conviction on the other
count, ORS 137.123(5)(b). The stipulation that the “court
may impose” consecutive sentences could be understood to
be the functional equivalent of such a factual stipulation,
thereby avoiding an evidentiary presentation to support the
factual finding that would otherwise be required.10 Evidence
to support such a finding ordinarily would not be presented
at sentencing following a plea.11
Accordingly, we conclude that the state’s interpreta-
tion of the “court may impose” provision is a plausible read-
ing of the text of the agreement. The next question, then,
is whether the trial court—confronted at sentencing with
a dispute over the meaning of a plea agreement that could
plausibly be interpreted in two different ways—erred in its
handling of the situation. As an initial matter, we agree
that, because the trial court had an obligation at the time of
sentencing to ensure that defendant’s plea remained know-
ing, voluntary, and intelligent, the trial court appropriately
10
In the trial court, the parties described the “court may impose” provision
as a “waiver” of the findings required by ORS 137.123(5) for consecutive sen-
tences when multiple convictions arise out of a continuous and uninterrupted
course of conduct. We have indicated that a sentence “must be in conformity with”
statutory requirements, State v. Leathers, 271 Or 236, 240,531 P2d 901
(1975), and that the parties “cannot stipulate” to a sentence that is not provided by stat- ute, State v. McDonnell,329 Or 375, 386
,987 P2d 486
(1999). Because the stat-
utes governing plea agreements do not give a prosecutor the right to require a
defendant to waive the statutory provisions regarding consecutive sentences as a
condition of the plea agreement, the “court may impose” provision is best under-
stood as a shorthand way of stating that the defendant was, in effect, stipulating
to a factual finding that would allow the court to impose consecutive sentences,
and not a “waiver” of the statutory requirement itself.
11
We have held that neither Article I, section 11, of the Oregon Constitution,
nor the Sixth Amendment to the United States Constitution, require a jury to
make the factual findings necessary for the imposition of consecutive sentences.
State v. Ice, 346 Or 95,204 P3d 1290
(2009). Cite as373 Or 714
(2025) 733 inquired further. That inquiry ultimately led the trial court to state, in response to the two options outlined by defense counsel, that it “would interpret” the situation as showing that the parties did not have a “meeting of the minds” suffi- cient to result in a stipulated plea agreement, which would mean that the case would be returned to the trial docket. The Court of Appeals understood that statement to be a determi- nation “that the parties had not reached a plea agreement” and concluded that the trial court had “erred” in making that determination. Walsh,330 Or App at 619
.
Assuming that the trial court erred in ruling, at
least implicitly if not explicitly, that the parties had not
reached an agreement on a plea, that error does not mat-
ter in this case, because of what happened next in the trial
court. First, to the extent that defendant thought that the
trial court had made such a ruling, defendant did not object
or argue that it was erroneous. As explained above, after
defense counsel described the two options that he saw—either
ask the trial court to decide the dispute or allow the plea
to be “taken back”—defense counsel apparently proceeded
to discuss those options with defendant. After that discus-
sion, defendant did not ask the court to decide the dispute
over the meaning of the plea agreement. Instead, defendant
chose to withdraw his legal argument that consecutive sen-
tences could not be imposed because the court had not made
the findings required by ORS 137.123(5), and he expressly
agreed that the trial court could proceed to sentencing, with
the court to decide in its discretion whether the sentences on
Counts 1 and 4 would run consecutively or concurrently.
That sequence of events is the functional equivalent
of what would have happened if the trial court had expressly
ruled that the parties had not reached a plea agreement and
returned the case to the trial docket, and the parties had
then negotiated a new agreement that was identical to the
original agreement but included an express, unambiguous
stipulation to a factual basis for imposing consecutive sen-
tences on Counts 1 and 4. If that had occurred, and defendant
then asked the court to proceed to sentencing under the new
agreement without objecting to the court’s earlier decision
to return the case to the trial docket, whether that decision
734 State v. Walsh
was erroneous would be immaterial and unpreserved for
appellate review. Similarly, if the court then sentenced
defendant to consecutive terms of imprisonment, whether
the trial court erred in returning the case to the trial docket
after declining to proceed to sentencing under the original
ambiguous plea agreement would be both immaterial and
unpreserved for appellate review.
That situation is different from what happened in
Heisser. There, the trial court’s erroneous determination
that the parties had not reached a plea agreement was mate-
rial because of what happened next—the case proceeded to
trial, the defendant was convicted, and he was sentenced to
a much longer term of imprisonment than he would have
received under the plea agreement. In contrast, any trial
court error in determining that the parties had not reached
a plea agreement in this case was not material because
of what happened next—the parties reached what was, in
effect, a new plea agreement, and defendant was sentenced
in accordance with that agreement without objection.12
Defendant suggests that the trial court’s statement
that it “would interpret” the situation to mean that the par-
ties did not have a “meeting of the minds” sufficient to reach
a stipulated plea agreement was a “threat” that coerced him
into withdrawing his legal objection to the imposition of
consecutive sentences. But that is essentially an argument
that defendant’s plea was not voluntary, and defendant did
not make that contention in the trial court or in the Court
of Appeals. Accordingly, that issue is not preserved for our
review. See State v. Burgess, 352 Or 499, 508,287 P3d 1093
(2012) (“It has long been the rule in this court that we will not address arguments that were not raised in the Court of Appeals.”); State v. Wyatt,331 Or 335, 341
,15 P3d 22
(2000).
(“Generally, an issue not preserved in the trial court will not
be considered on appeal.”).13
12
If defendant did not want to proceed with sentencing under the terms of
what was, in effect, a new plea agreement, the court could have allowed defen-
dant to withdraw his guilty pleas. See ORS 135.365 (court may permit a defen-
dant to withdraw a guilty plea “at any time before judgment”).
13
If defendant had preserved the issue, and if we agreed that, because of the
trial court’s statement, defendant’s plea was not voluntary, then the proper rem-
edy would be to remand the case for trial. But that is not the remedy defendant
is requesting, or that the Court of Appeals ordered. Instead, defendant requests a
Cite as 373 Or 714 (2025) 735
Under the circumstances, we cannot fault the trial
court for seeking clarification when presented with a dis-
pute at sentencing over the intended meaning and legal
effect of the parties’ written plea agreement, giving defense
counsel the opportunity to discuss the options that counsel
had identified with his client, and then proceeding to sen-
tence defendant as he had requested in accordance with the
revised plea agreement, the terms of which were expressly
affirmed by the defendant.
III. CONCLUSION
In summary, we conclude that the parties’ stipu-
lation as part of their plea agreement that “the court may
impose” consecutive sentences can plausibly be understood
to authorize the trial court to impose consecutive sentences
either without making the ORS 137.123(5) findings that it
otherwise would have been required to make to impose con-
secutive sentences, or only if it made those findings. Given
those two different, but plausible, understandings, it was
appropriate for the trial court to question whether defen-
dant had knowingly and voluntarily entered guilty pleas to
two counts, and then attempt to resolve that issue before
proceeding. After conferring with counsel, defendant agreed
to withdraw his legal argument, thereby eliminating the
ambiguity in the original plea agreement. That left the par-
ties free to argue—and gave the trial court discretion to
decide—whether consecutive or concurrent sentences should
be imposed subject to the sentencing limitations specified in
the plea agreement.14 Under the circumstances, we conclude
that the trial court did not err in proceeding to sentence
defendant in accordance with the plea agreement.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
remand for resentencing after considering defendant’s legal argument that consecu-
tive sentences cannot be imposed because the court did not make one of the findings
required by ORS 137.123(5). The Court of Appeals granted that request, but that
would be the appropriate remedy only if the original plea agreement unambiguously
preserved defendant’s right to make his legal argument, as in Heisser. Because we
have concluded that the plea agreement was ambiguous, defendant is not entitled to
the remedy of a remand for resentencing based on that legal argument.
14
Defendant does not contend on appeal that the trial court abused its dis-
cretion when it imposed consecutive sentences in this case.