State v. Walsh

A provision in a plea agreement that the court “may impose” consecutive sentences is ambiguous and can mean that the court has the authority to impose consecutive sentences with or without certain statutory findings.

The defendant was initially charged with four Measure 11 sex offenses against a child under the age of 12. The plea agreement provision stated, “defendant stipulates that the state may argue for and the court may impose consecutive sentences.” While at sentencing, the defendant argued that because the charges arose from a continuous course of conduct, the court could not impose consecutive sentences without the prosecution proving certain statutory findings under ORS 137.123(5), and should instead run the sentences concurrently. The state argued that the wording, “may impose,” waived the burden to prove the statutory findings and the trial court later sentenced the defendant to a 105 month and 75 month sentence that would be served consecutively for 180 months total. 
The Oregon Court of Appeals reversed the trial court’s decision. On review, the Oregon Supreme court held that the wording, “may impose,” was ambiguous and could mean that the court had discretion to impose a consecutive sentence with or without the findings under ORS 137.123(5). Additionally, the Court reasoned that because the defendant voluntarily withdrew his objection at the trial court, he eliminated the ambiguity in the original plea agreement. Therefore, the Oregon Supreme Court reversed the decision of the Court of Appeals and affirmed the judgment of the trial court.