Orren v. Reyes

Opinion

No. 832 September 2, 2026 651

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

MICHAEL ORREN, Petitioner-Appellant,

v.

Erin REYES, Superintendent,

Two Rivers Correctional Institution, Defendant-Respondent. Umatilla County Circuit Court 22CV30303; A184284

W. D. Cramer, Jr., Senior Judge. Submitted November 24, 2025. Jedediah Peterson and Equal Justice Law filed the brief for appellant.

Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge.* EGAN, J. Affirmed.

______________

* Lagesen, C. J., vice Pagán, J.

652 Orren v. Reyes

EGAN, J.

In this appeal of a judgment denying post-conviction relief, petitioner raises challenges regarding his plea agreement in which he pleaded guilty to robbery and murder. We understand petitioner to argue that the post-conviction court erred in denying relief on his claims that the prosecution committed misconduct by (1) including a “do-not-testify” provision, which he asserts violated his right to a “free and unhampered choice” whether to testify; (2) coercing him into the plea with threats of the death penalty; and (3) breaching the plea agreement when it later waived the do-not-testify provision. For the reasons below, we affirm.

The facts and procedural history of this case are known to the parties, so we recite only those relevant to our discussion. Petitioner’s plea agreement, in which he bargained to remove the possibility of a death sentence, contained a provision that he could not testify, even truthfully , in his codefendants’ trials and, if called, must assert his Fifth Amendment right against self-incrimination. The Supreme Court later found that petitioner’s do-not-testify provision violated his codefendant Weaver’s constitutional right to compulsory process and Weaver’s right to mount a defense for his own trial. State v. Weaver, 367 Or 1, 22-23, 472 P3d 717 (2020). However, the parties did not argue, and the court expressly declined to consider, whether the provision violated petitioner’s rights. Id. at 37 n 13. After the Weaver decision, petitioner argued to the post-conviction court that his plea was invalid because the do-not-testify provision was unlawful, the state’s threat of a death sentence was overly coercive, and the state breached the plea agreement by notifying petitioner that it would not enforce the do-not-testify provision in light of Weaver. The post-conviction court denied relief on all of petitioner’s claims.

We review a post-conviction court’s denial of relief for legal error. Sullivan v. Popoff, 274 Or App 222, 230, 360 P3d 625 (2015), rev den, 358 Or 833 (2016).

First, petitioner asserts that the do-not-testify provision violated his right to make a “free and unhampered”

Nonprecedential Memo Op: 352 Or App 651 (2026) 653

choice whether to testify.1 When evaluating whether the state deprived a defendant of a constitutional right without due process of law, as guaranteed by the Fourteenth Amendment to the federal constitution, we first must consider whether the defendant is entitled to prevail under state law. Stelts v. State of Oregon, 299 Or 252, 257, 701 P2d 1047 (1985) (explaining that we decide state issues before reaching federal issues).

To prove that his constitutional rights have been violated, petitioner must first identify the specific right that he asserts was violated.2 Article I, sections 11 and 12, of the Oregon Constitution specifically provide rights that a defendant possesses while in custody, but the “right to testify” in another person’s trial is not included.3 Instead, petitioner relies on the Supreme Court’s ruling in Weaver to assert that he had a right to testify.

Nowhere in Weaver did the Oregon Supreme Court identify, rely upon, or announce any right that entitled petitioner —as a matter of compulsory process, due process, or any other principle—to testify as a defense witness in his codefendant’s case. The Supreme Court’s contemplation of petitioner’s “free and unhampered choice” to testify in Weaver is not an indication that petitioner had any right to testify. The Supreme Court only identified the state’s interference with petitioner’s free and unhampered choice to testify as depriving Weaver’s right to compulsory process, not petitioner’s now-asserted right to testify. Weaver, 367 Or at 33. The court in Weaver did not state that such interference violates any right of the witness, or that the witness has any right to that choice. Weaver only forbids the state

1 To the extent that petitioner argues that the do-not-testify provision violated his right to remain silent, we note that petitioner did not lose his right, nor was he required to be anything but silent.

2 If anything, although not directly stated, the subpoena process under ORS 136.555 suggests that a person does not have a “right to testify” because a person cannot simply walk into a courtroom and assert that “right.”

3 Article I, sections 11 and 12, of the Oregon Constitution provide that a criminal defendant has the right to a public trial, the right to be heard by himself and counsel, the right to demand the nature of the accusation against him, the right to meet face to face with witnesses, the right to compulsory process to obtain witnesses, the right to only be tried once for an offense, and the right to not testify against himself.

654 Orren v. Reyes

from applying “coercion” on a witness to ensure that a defendant ’s right to build a defense remains intact. Id. at 23-25. Therefore, contrary to petitioner’s assertion, Weaver did not establish a protected “right to testify.”

Petitioner has not developed further argument regarding the source of the asserted right to testify, and we decline to do so for him. See Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003) (concluding that “it is not this court’s function to speculate as to what a party’s argument might be” or “to make or develop a party’s argument when that party has not endeavored to do so itself”).4 Accordingly, the post-conviction court did not err in denying petitioner relief on that ground.

Petitioner also appears to argue that his rights were violated because the plea agreement was overly coercive due to its contemplation of the death penalty. We reject that argument as it is in direct conflict with our case law. See Myers v. Howton, 296 Or App 500, 511, 439 P3d 472, rev den, 365 Or 657 (2019) (holding that the prospect of a death sentence by itself is not sufficient to render a guilty plea invalid). To evaluate if the particular facts and circumstances of the situation render a guilty plea invalid, the court considers whether the plea agreement was voluntarily and knowingly made. Id. “In the absence of some form of coercion, most intentional acts also are voluntary acts.” State v. Meyrick, 313 Or 125, 132 n 8, 831 P2d 666 (1992). We determine if a right was knowingly and voluntarily waived based on the circumstances of each case, considering things like a defendant’s background, experience, and conduct. Id. at 138.

Petitioner contends that the circumstances surrounding the do-not-testify provision combined with the death penalty rendered his plea not voluntarily or knowingly made. However, we have rejected petitioner’s argument regarding the do-not-testify provision, and, as noted, the possibility of 4 We do not find petitioner’s discussion of Stelts convincing. 299 Or at 259-61 (discussing the added protections a defendant has when they chose to waive a constitutional right). Because petitioner has not established that he had a constitutional right, the additional protections contemplated in Stelts would not apply—meaning that even if petitioner believed he had a constitutional “right to testify,” that belief alone would not void the agreement.

Nonprecedential Memo Op: 352 Or App 651 (2026) 655

the death penalty is insufficient on its own to render a plea not voluntary or knowing. Petitioner does not point to anything additional in the record that contradicts the post-conviction court’s determination and, thus, the court did not err in denying petitioner’s claim regarding the voluntariness of his plea.

Finally, we also reject petitioner’s breach of contract argument. Petitioner argues that because the state waived the do-not-testify provision, it breached its contractual duties.5 To determine if the state breached its contractual duties, we turn to contract law. See State v. Minor, 297 Or App 461, 466, 433 P3d 695 (2019) (“Contract law generally controls the interpretation of plea agreements.”). A contractual duty is a legal obligation that is created through a contract that a promisor must perform, the nonperformance of which is a breach of contract. See Furrer v. Southwestern Oregon Community College, 196 Or App 374, 379-81, 103 P3d 118 (2004); Restatement (Second) of Contracts § 2(2) (1981) (“The person manifesting the intention is the promisor .”). A promisee can waive any benefit they would receive under the contract without breaching the contract. Soliz v. Jimenez, 222 Or App 251, 259, 193 P3d 34 (2008) (“Under contract law, a party to a contract may waive performance of any provision of the contract that is for its benefit.” (Internal quotation marks and brackets omitted)).

The do-not-testify provision was a promise made by petitioner to the state, making petitioner the promisor. As the promisor, petitioner had a contractual duty to the state to perform his duties under the contract, in this case meaning he had a contractual duty to not testify. Additionally, the organization and the language of the plea agreement make it apparent that the do-not-testify provision was not a bargained for benefit for petitioner, but rather a promise he made to the state that he must adhere to.6 5 Petitioner also argues that the state breached its contractual duties at the time it made the agreement because it was overly coercive to use the do-not-testify provision as a bargaining chip. We reject that argument because, as discussed above, petitioner has not shown that he has a right to testify.

6 The do-not-testify provision was included under the subsection “[petitioner]

agrees to the following” and not under the bilateral agreement heading the “parties agree to the following,” and the provision itself states that it is “meant to protect the State,” all of which suggests that the provision was a condition for the state’s benefit that petitioner was obligated to adhere to.

656 Orren v. Reyes

As the promisee, the state had no obligation under the contract to perform the do-not-testify provision. In fact, as promisee, it had the ability to waive compliance with the condition for petitioner. Thus, the state did not breach the plea agreement when it waived petitioner’s do-not-testify obligation; it merely released petitioner from his duty to perform. Therefore, the post-conviction court did not err in denying petitioner’s petition based on the state’s decision not to enforce the do-not-testify provision.

In sum, petitioner has not shown that the post-

conviction court erred in denying his petition for relief.

Affirmed.