The Advantages of ORS 135.335(3) Conditional Pleas
by: Tbetz • September 5, 2012 • no comments
This article was written with OPDS attorney Zack Mazer.
Picture a case where the defendant likely suffered an illegal arrest and an improperly suggestive identification, after which the police discover evidence of a crime and the defendant confesses. When presented with such a case, the defense attorney has a duty to attempt to suppress the evidence gained through Constitutional violation.
If, in the above hypothetical, the defense loses the motion to suppress the defendant's confession and the judge allows the witness's identification, there's not much left for the defense to argue to a jury. Often, in this situation, it's appropriate to perform a quick court trial to ensure that no matters for appeal are waived. Other times, though, there are advantages to a conditional plea as outlined by ORS 135.335. ORS 135.335(3) states that:
[w]ith the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.
There are only a few requirements under ORS 135.335 to ensure the right to appeal is not waived. However, this is routinely done wrong. So routinely, in fact, that when the appellate folks at OPDS get one of these referrals, they make sure someone looks at the plea petition before notice of appeal is filed. The attached plea petition can be used as a template that will leave little room for an argument regarding preservation. The petition was recently submitted in Multnomah County. It's underlined where it differs from the standard plea petition.
Basically, the attorney just needs to title the petition, appropriately indicate an intent to appeal, and say what is being appealed. The key is to clearly list, on the plea petition itself, each pretrial motion being reserved for appeal (there can be more than one), and then clearly state that the plea is conditional upon reserving the right to appeal those decisions. It really is that simple.
The advantage of a conditional plea over a stipulated facts trial (really a stipulated "evidence" trial-but that is a matter for another day) is this: a stipulated facts trial is just a trial, subject to the same harmless error analysis by the Court of Appeals. In many cases, this will not matter. For example, there is no question about harm in a simple PCS case where the controlled substance is discovered during an illegal seizure and your client makes an admission after the search. If the Court of Appeals determines that the stop was bad, the substance and the admission will be suppressed.
However, in a more complicated case, review under harmless error matters. Imagine that the police lawfully discover evidence connecting the defendant to a drug operation. But later they perform an unconstitutional "inventory" search and discover drug records connecting him or her to the drug operation. The trial court refuses to suppress the drug records that clearly connect the defendant to the drug operation. If the defense attorney chooses a stipulated facts trial, the Court of Appeals will evaluate the evidentiary strength of the records in the context of all of the other evidence. The Court may determine that admission of the drug records-even if illegally discovered pursuant to an invalid inventory policy-was harmless in the context of all of the other evidence, and affirm nonetheless.
This could also arise in a non-suppression situation, such as a motion in limine. Remember, ORS 135.335(3) is for any pretrial motion, not just suppression motions. Say you move in limine to exclude your client's blow in a DUII case on a scientific evidence theory. Of course, the cop will repeat the same battery of other evidence-bloodshot, watery eyes; slurred speech; difficulty balancing; fumbling with documents; a "flaccid" facial expression, etc. If you conduct a stipulated facts trial to preserve your limine issue, the Court of Appeals may say that admission of the blow is harmless error in light of the other evidence of intoxication.
The advantage of a conditional-plea appeal is no harmless-error analysis. If the appeal wins, the remedy is to remand the case for the defendant to withdraw his or her plea-period. Thus, you may withdraw the plea and renegotiate the case from a stronger position, knowing that the state will not have the now suppressed or excluded evidence. Additionally, if the initial sentencing wasn't too bad, and the DA continues to play hardball, you can always opt to let the plea stand-the choice will be yours because you properly reserved a conditional plea under ORS 135.335(3).
