2017 ORS 135.405¹
Plea discussions and plea agreements

Caution-flag-2-25x25
This section is amended
Effective January 1, 2019
Relating to prohibited provisions in criminal action agreements; creating new provisions; and amending ORS 135.405.

(1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415 (Criteria to be considered in plea discussions and plea agreements), the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

(2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for appointed counsel, has not retained counsel.

(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:

(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

(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.

(4) Similarly situated defendants should be afforded equal plea agreement opportunities.

(5) The district attorney may not condition a plea offer on a requirement that the defendant waive:

(a) The disclosure obligation of ORS 135.815 (Disclosure to defendant) (1)(g); or

(b) The ability to receive the audio recording of grand jury proceedings as permitted under ORS 132.270 (Release and use of recording, transcript, notes or report), if the indictment has been indorsed “a true bill.”

(6)(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941 (Early disposition programs).

(b) Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony. [1973 c.836 §170; 2001 c.635 §10; 2001 c.962 §79; 2013 c.525 §2; 2017 c.650 §8]

Note: The amendments to 135.405 (Plea discussions and plea agreements) by section 8, chapter 650, Oregon Laws 2017, become operative March 1, 2018. See section 18, chapter 650, Oregon Laws 2017. The text that is operative until March 1, 2018, is set forth for the user’s convenience.

135.405 (Plea discussions and plea agreements). (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415 (Criteria to be considered in plea discussions and plea agreements), the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

(2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for appointed counsel, has not retained counsel.

(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:

(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or

(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.

(4) Similarly situated defendants should be afforded equal plea agreement opportunities.

(5) The district attorney may not condition a plea offer on a requirement that the defendant waive the disclosure obligation of ORS 135.815 (Disclosure to defendant) (1)(g).

(6)(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941 (Early disposition programs).

(b) Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony.

Notes of Decisions

District Attorney was without authority under this sec­tion to promise in plea negotia­tions that Board of Parole would treat crime as Subcategory 2 mur­der rather than Subcategory 1 mur­der. Rise v. Bd. of Parole, 304 Or 385, 745 P2d 1210 (1987)

Where prosecutor did not offer defendant same plea agree­ment as co-defendant and defendant was convicted for mur­der and robbery in first de­gree, legislative history of this statute demonstrates that district attorneys are not mandated to offer equal plea agree­ment opportunities to similarly situated defendants. State v. Buchholz, 97 Or App 221, 775 P2d 896 (1989) aff’d 309 Or 442, 788 P2d 998 (1990)

Where prosecutor improperly allowed victim’s parents’ wishes to control his decision not to enter into plea agree­ment and record did not reveal what prosecutor independently would have decided, case remanded to trial court for evidentiary hearing to determine how prosecutor would have exercised his judg­ment and discre­tion on basis of proper criteria and facts that existed at time he dec­lined to enter into plea agree­ment. State v. McDonnell, 310 Or 98, 794 P2d 780 (1990); 313 Or 478, 837 P2d 941 (1992)

Record reflected ample justifica­tion for prosecutor to treat defendant differently than other individual with whom prosecutor negotiated plea agree­ment, considering defendant’s role in com­mis­sion of mur­ders. State v. Guzek, 310 Or 299, 797 P2d 1031 (1990)

Defendant and codefendant were not “similarly situated” when defendant per­sonally committed mur­ders, defendant was charged with ag­gra­vat­ed mur­der while codefendant was charged with felony mur­der, defendant had extensive crim­i­nal record but codefendant did not and state had number of witnesses who would testify about character and propensity of defendant but found no witness who would testify similarly about codefendant. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Law Review Cita­tions

74 OLR 1365 (1995)

1 Legislative Counsel Committee, CHAPTER 135—Arraignment and Pretrial Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors135.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 135, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano135.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.