[100]*100UNIS, J.
This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. ORS 163.150(1)(g). Defendant seeks to have this court vacate the judgment and remand this case to the trial court with instructions to enter defendant’s plea of guilty to the crime of aggravated murder and impose a sentence of life imprisonment. We vacate the judgment and remand this case to the trial court with instructions.
Defendant was charged with the aggravated murder of Joey Deah Bouwsema Keever, whose death resulted from multiple knife wounds. Prior to trial, the Douglas County District Attorney informed defendant that he was willing to enter into a plea agreement with defendant if the victim’s parents agreed. Under the proposed plea agreement, defendant would plead guilty to aggravated murder and the district attorney would not present any evidence to the jury to support a sentence of death during the penalty phase of the trial. As a consequence, defendant would receive a life sentence. See ORS 163.150 (amended by Or Laws 1989, ch 720, § 2).1 The proposed plea agreement was acceptable to defendant. It was not, however, acceptable to the victim’s parents. The district attorney, therefore, decided to proceed to trial and seek a death penalty.
Defendant then moved the trial court for an order requiring the district attorney to enter into the plea agreement. In support of his motion, defendant relied upon the following stipulation:
[101]*101“[The] District Attorney for Douglas County [ ] has stated to both attorneys representing [defendant] that, if the parents of the alleged victim would agree to such a resolution of this case, he would accept a plea to the offense of aggravated murder and would decline to present any evidence to the jury during the penalty phase of the trial which would result in a life sentence for [defendant]. To date, the parents of the alleged victim have not agreed to such a resolution of this case.
“[Defendant] would agree to such a resolution of this case.”
No other evidence was received by the trial court regarding the district attorney’s decision to enter into the plea agreement. In fact, the defendant objected to the trial court considering any evidence other than the parties’ stipulation in ruling on the motion. As a result, the record does not reveal what, if any, plea agreement the district attorney would have approved had he not conditioned his acceptance on the victim’s parents’ concurrence in the plea agreement. The trial court denied defendant’s motion. A jury trial followed. Defendant was found guilty of aggravated murder and was sentenced to death.
Although defendant initially challenged his conviction and death sentence on numerous assignments of error, the parties agreed to limit the appeal at this stage to examining whether the district attorney based his decision not to enter into the plea agreement on improper considerations and, if so, determining what is the proper remedy for such an erroneous decision.
Defendant argues that the district attorney should be directed to accept the plea agreement because the district attorney had deferred to the wishes of the murdered victim’s parents in deciding either to accept a guilty plea in exchange for a life sentence or try the case and seek a penalty of death. Defendant claims that the district attorney abdicated his role prescribed in ORS 135.405, which provides that only the district attorney may engage in plea discussions. Defendant further contends that, by delegating the decision to enter into the plea agreement to the victim’s parents, the district attorney violated (1) Article I, section 20,2 of the Oregon Constitution [102]*102because the decision turned on a haphazard criterion; (2) Article I, section 16,3 of the Oregon Constitution because the victim’s parents’ desires necessarily injected vindictiveness into the decision; (3) the Eighth Amendment to the United States Constitution4 because the district attorney’s action inappropriately caused defendant’s fate to turn on victim-related factors, rather than on an assessment of the nature of defendant’s crime and his culpability; and (4) the Due Process Clause of the Fourteenth Amendment to the United States Constitution.5
The state concedes that the district attorney cannot let victims or their families play the decisive role in plea negotiations by deferring to their judgment whether a plea agreement is appropriate. The state further concedes that the district attorney’s refusal to enter into the proposed plea agreement unless he had the victim’s parents’ concurrence was error. The state based its concession, however, under the statutes that govern a district attorney’s authority to enter into a plea agreement, rather than under any constitutional provision.6
The statutes that presently govern a district attorney’s authority to enter into a plea agreement were enacted in 1973. That year, the Oregon Legislature adopted the American Bar Association’s recommendation to formally organize [103]*103and control the plea negotiation process. Commentary, Proposed Oregon Criminal Procedure Code (1972), § 263, p. 158 (hereinafter Commentary). As the legislative history reflects, the legislature understood that negotiated guilty pleas were disfavored and criticized by the public because of the perception that they resulted in overly lenient dispositions which failed to adequately protect the public’s interests. Nevertheless, the legislature concluded that plea negotiation is an essential component of an efficient and effective justice system, and that, if properly administered, negotiated pleas should be encouraged. Id,., § 263, pp. 158-59 and § 264, pp. 160-61; see also Commentary to ABA Standards Relating to Pleas of Guilty, Standard 3.1 (1968). The legislature therefore enacted general standards controlling the circumstances under which a district attorney could negotiate a plea together with procedures designed to make plea negotiations open to public scrutiny. Commentary, § 263, pp. 158-59, and § 264, pp. 160-61.
Two statutes thus adopted are relevant to this case. The first is ORS 135.405, which provides in part:
“(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, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.” (Emphasis added.)
Subsection (3) identifies an open-ended list of the kinds of concessions the district attorney may offer in exchange for a guilty plea. Subsection (4) provides that “[similarly situated defendants should be afforded equal plea agreement opportunities.”
Free access — add to your briefcase to read the full text and ask questions with AI
[100]*100UNIS, J.
This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. ORS 163.150(1)(g). Defendant seeks to have this court vacate the judgment and remand this case to the trial court with instructions to enter defendant’s plea of guilty to the crime of aggravated murder and impose a sentence of life imprisonment. We vacate the judgment and remand this case to the trial court with instructions.
Defendant was charged with the aggravated murder of Joey Deah Bouwsema Keever, whose death resulted from multiple knife wounds. Prior to trial, the Douglas County District Attorney informed defendant that he was willing to enter into a plea agreement with defendant if the victim’s parents agreed. Under the proposed plea agreement, defendant would plead guilty to aggravated murder and the district attorney would not present any evidence to the jury to support a sentence of death during the penalty phase of the trial. As a consequence, defendant would receive a life sentence. See ORS 163.150 (amended by Or Laws 1989, ch 720, § 2).1 The proposed plea agreement was acceptable to defendant. It was not, however, acceptable to the victim’s parents. The district attorney, therefore, decided to proceed to trial and seek a death penalty.
Defendant then moved the trial court for an order requiring the district attorney to enter into the plea agreement. In support of his motion, defendant relied upon the following stipulation:
[101]*101“[The] District Attorney for Douglas County [ ] has stated to both attorneys representing [defendant] that, if the parents of the alleged victim would agree to such a resolution of this case, he would accept a plea to the offense of aggravated murder and would decline to present any evidence to the jury during the penalty phase of the trial which would result in a life sentence for [defendant]. To date, the parents of the alleged victim have not agreed to such a resolution of this case.
“[Defendant] would agree to such a resolution of this case.”
No other evidence was received by the trial court regarding the district attorney’s decision to enter into the plea agreement. In fact, the defendant objected to the trial court considering any evidence other than the parties’ stipulation in ruling on the motion. As a result, the record does not reveal what, if any, plea agreement the district attorney would have approved had he not conditioned his acceptance on the victim’s parents’ concurrence in the plea agreement. The trial court denied defendant’s motion. A jury trial followed. Defendant was found guilty of aggravated murder and was sentenced to death.
Although defendant initially challenged his conviction and death sentence on numerous assignments of error, the parties agreed to limit the appeal at this stage to examining whether the district attorney based his decision not to enter into the plea agreement on improper considerations and, if so, determining what is the proper remedy for such an erroneous decision.
Defendant argues that the district attorney should be directed to accept the plea agreement because the district attorney had deferred to the wishes of the murdered victim’s parents in deciding either to accept a guilty plea in exchange for a life sentence or try the case and seek a penalty of death. Defendant claims that the district attorney abdicated his role prescribed in ORS 135.405, which provides that only the district attorney may engage in plea discussions. Defendant further contends that, by delegating the decision to enter into the plea agreement to the victim’s parents, the district attorney violated (1) Article I, section 20,2 of the Oregon Constitution [102]*102because the decision turned on a haphazard criterion; (2) Article I, section 16,3 of the Oregon Constitution because the victim’s parents’ desires necessarily injected vindictiveness into the decision; (3) the Eighth Amendment to the United States Constitution4 because the district attorney’s action inappropriately caused defendant’s fate to turn on victim-related factors, rather than on an assessment of the nature of defendant’s crime and his culpability; and (4) the Due Process Clause of the Fourteenth Amendment to the United States Constitution.5
The state concedes that the district attorney cannot let victims or their families play the decisive role in plea negotiations by deferring to their judgment whether a plea agreement is appropriate. The state further concedes that the district attorney’s refusal to enter into the proposed plea agreement unless he had the victim’s parents’ concurrence was error. The state based its concession, however, under the statutes that govern a district attorney’s authority to enter into a plea agreement, rather than under any constitutional provision.6
The statutes that presently govern a district attorney’s authority to enter into a plea agreement were enacted in 1973. That year, the Oregon Legislature adopted the American Bar Association’s recommendation to formally organize [103]*103and control the plea negotiation process. Commentary, Proposed Oregon Criminal Procedure Code (1972), § 263, p. 158 (hereinafter Commentary). As the legislative history reflects, the legislature understood that negotiated guilty pleas were disfavored and criticized by the public because of the perception that they resulted in overly lenient dispositions which failed to adequately protect the public’s interests. Nevertheless, the legislature concluded that plea negotiation is an essential component of an efficient and effective justice system, and that, if properly administered, negotiated pleas should be encouraged. Id,., § 263, pp. 158-59 and § 264, pp. 160-61; see also Commentary to ABA Standards Relating to Pleas of Guilty, Standard 3.1 (1968). The legislature therefore enacted general standards controlling the circumstances under which a district attorney could negotiate a plea together with procedures designed to make plea negotiations open to public scrutiny. Commentary, § 263, pp. 158-59, and § 264, pp. 160-61.
Two statutes thus adopted are relevant to this case. The first is ORS 135.405, which provides in part:
“(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, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.” (Emphasis added.)
Subsection (3) identifies an open-ended list of the kinds of concessions the district attorney may offer in exchange for a guilty plea. Subsection (4) provides that “[similarly situated defendants should be afforded equal plea agreement opportunities.”
The second relevant statute is ORS 135.415, which provides a nonexclusive list of criteria the district attorney may take into account in making plea agreements. See State v. Buchholz, 309 Or 442, 788 P2d 998 (1990). ORS 135.415 provides:
“In determining whether to engage in plea discussions for the purpose of reaching a plea agreement, the district attorney may take into account, but is not limited to, any of the following considerations:
“(1) The defendant by the plea of the defendant has [104]*104aided in ensuring the prompt and certain applications of correctional measures to the defendant.
“(2) The defendant has acknowledged guilt and shown a willingness to assume responsibility for the conduct of the defendant.
“(3) The concessions made by the state will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction.
“(4) The defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial.
“(5) The defendant has given or offered cooperation when the cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.
“(6) The defendant by the plea of the defendant has aided in avoiding delay in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.” (Emphasis added.)
Both ORS 135.405 and ORS 135.415 place the authority for negotiating a plea agreement on the district attorney.
The state characterizes the error which it concedes occurred in this case as having been caused by the district attorney impermissibly delegating the decision to enter into a plea agreement to the victim’s parents. The state is correct that, based on the limited record before us, the district attorney improperly delegated the decision whether to enter into plea negotiations to the victim’s parents. Unfortunately, the record is too limited to permit us to determine the extent of that delegation.
As noted previously, the only evidence in this case concerning the proposed plea agreement consisted of the stipulation of the parties. Defendant objected to the trial court considering any evidence other than the parties’ stipulation in ruling on his motion to require the district attorney to enter into the plea agreement. The stipulation of the parties only states that “if the parents of the alleged victim would agree to such a resolution of this case, [the district attorney] would accept a plea to the offense of aggravated murder and would [105]*105decline to present any evidence to the jury during the penalty phase of the trial.” The record does not show what other considerations, if any, the district attorney used in assessing the proposed plea agreement. The stipulation does not indicate, for example, whether the district attorney decided to enter into the plea agreement based on appropriate criteria but conditioned his acceptance on the victim’s parents’ concurrence or if the district attorney entirely delegated that decision to the victim’s parents.
Only one fact is clear: the victim’s parents’ wishes were the controlling factor in the district attorney’s decision. Under the applicable statutes that govern a district attorney’s authority to enter into a plea agreement, as discussed above, that was error. If a district attorney decides to engage in plea negotiations, he or she must be guided by the statutory criteria and other relevant considerations involving the public’s interest in an effective administration of criminal justice. The district attorney cannot delegate to others this responsibility for carrying out public policy.
This is not to say that crime victims and their families have no part in plea agreements. They potentially play an important role in the plea negotiation process. District attorneys legitimately may consult with them. Cf. In re Collins, 308 Or 66, 73 n 12, 775 P2d 312 (1989). The victim’s financial interests are at stake with respect to any agreement a prosecutor may consider regarding restitution. Victims are important sources of information about the circumstances of the offense, and sometimes about the accused as well. See generally Welling, Victim Participation in Plea Bargains, 65 Wash ULQ 301 (1987); Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U Ill L Rev 37, 90. That is equally true in murder cases, where a victim’s family may be able to provide information or insights about the victim or the defendant which assist in the district attorney’s understanding of the crime (i.e., aggravating or mitigating circumstances) or are in other ways relevant to the decision whether to negotiate a plea.7
[106]*106It is one thing, however, for a district attorney to consult with a victim or a victim’s family for purposes of gaining information that may bear on factors relevant to an assessment of whether a plea agreement will serve the public’s interest in “the effective administration of criminal justice.” ORS 135.405(1). It is another to permit the victims or their families to control the plea agreement decision.
Given our conclusion that, based on the limited record in this case, the district attorney committed error, we next address the appropriate remedy. Defendant contends that the district attorney should be directed to accept the plea agreement.
Where a district attorney’s exercise of judgment or discretion not to enter into a plea agreement is set aside because it rested wholly on improper considerations, the remedy is for the district attorney to make a new decision based solely on proper criteria and upon the facts that existed when the plea agreement was contemplated. This result follows unless the record demonstrates what that decision would be. Here, as indicated above, the record in this case does not establish what the then district attorney’s independent decision was or would have been. We, therefore, vacate the judgment and remand the case to the trial court for an evidentiary hearing to determine how the prosecutor would have exercised his judgment and discretion on the basis of proper criteria and the facts that existed at the time he declined to enter into the plea agreement. If, after hearing the evidence, the trial court finds that the district attorney would have reached the same [107]*107decision to proceed with the prosecution of the accused on proper grounds, then the judgment of conviction and sentence of death shall be reinstated and an appeal therefrom may proceed. If, however, the trial court finds that the prosecutor would have accepted the negotiated plea, then, as the state concedes, the defendant shall be permitted to enter a plea of guilty to the crime of aggravated murder and the trial court shall sentence him to life imprisonment. See ORS 163.150 {amended by Or Laws 1989, ch 720, § 2).8 If after an evidentiary hearing defendant is permitted by the trial court to enter a plea of guilty to the crime of aggravated murder and does not do so, the judgment should be reinstated and an appeal therefrom may proceed.
The judgment of the Douglas County Circuit Court is vacated, and the case is remanded to that court with instructions.