State v. Ritchie

                                      622

   Argued and submitted September 18, 2018, reversed September 23, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   BRIAN JAMES RITCHIE,
                      Defendant-Appellant.
                 Washington County Circuit Court
                    C003587CR, C011455CR;
                   A163940 (Control), A163941
                                  

    In these consolidated cases, defendant appeals judgments of conviction for
one count of third-degree rape and two counts of third-degree sexual abuse,
which the trial court entered upon his conditional pleas of guilty. He assigns
error to the trial court’s denial of his motion to dismiss all counts against him.
Specifically, defendant argues that, under State v. Dinsmore, 

, 

 (2005), aff’d, 

, 

 (2006), the court lacked authority
to revive the charges against him that had previously been dismissed pursuant
to plea negotiations. Held: Under Dinsmore, the trial court had no authority to
revive the previously dismissed charges. Therefore, the court erred in denying
defendant’s motion to dismiss.
    Reversed.



    Suzanne Upton, Judge.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeHoog, Presiding Judge, and James, Judge, and
Aoyagi, Judge.
    DeHOOG, P. J.
    Reversed.
Cite as 

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        DeHOOG, P. J.
         In these consolidated cases, defendant appeals
judgments of conviction for third-degree rape (Case No.
C003587CR) and two counts of third-degree sexual abuse
(Case No. C011455CR), which the trial court entered upon
defendant’s conditional pleas of guilty to those offenses.
Defendant assigns error to the trial court’s denial of his
motion to dismiss all counts in both cases, arguing that,
under our decision in State v. Dinsmore, 

,

 (2005), aff’d, 

, 

 (2006)
(Dinsmore II), the trial court lacked authority to “revive”
charges that had previously been dismissed pursuant to
plea negotiations. The state responds that, because defendant effectively repudiated the underlying plea agreement
when he persuaded a court to vacate the agreement in federal habeas corpus proceedings, his case was restored to the
status quo ante. Thus, the state contends, Dinsmore II does
not control. As we explain below, we agree with defendant
that, under Dinsmore II, the trial court had no authority to
“revive” the previously dismissed charges. As a result, the
trial court erred in denying defendant’s motion to dismiss.
We, therefore, reverse.
         We review the denial of a motion to dismiss for
errors of law. State v. Russum, 

, 

, rev den, 

 (2014); see also State v. Criswell,

, 

 (2016) (applying that standard to a motion to dismiss on double-jeopardy grounds).
         This is the second time that this case has been
before us. Defendant made substantially the same arguments in State v. Ritchie, 

, 

,
rev den, 

 (2014) (Ritchie I). The procedural facts
are summarized in that opinion:
       “The relevant facts, though undisputed, are convoluted
   and primarily procedural. In 2001, a grand jury indicted
   defendant in Case No. C011455CR on two counts of first-degree sexual abuse (Counts 1 and 2), two counts of first-degree attempted rape (Counts 3 and 7), one count of
   third-degree attempted rape (Count 4), two counts of third-degree sexual abuse (Counts 5 and 6), and two counts of
   first-degree attempted sexual abuse (Counts 8 and 9). In
624                                                        State v. Ritchie

    Case No. C003587CR, a grand jury indicted defendant on
    first-degree rape (Count 1), two counts of compelling prostitution (Counts 2 and 5), two counts of third-degree rape
    (Counts 3 and 6), and one count of third-degree sodomy
    (Count 4).[1] In November 2001, defendant pleaded guilty
    to one count of compelling prostitution in C003587CR,
    and no contest to two counts of first-degree attempted
    rape in C011455CR, pursuant to a ‘consolidated plea offer.’
    The plea petitions stated that the state would dismiss all
    remaining counts. In February 2002, defendant moved
    to set aside his pleas in both cases and to substitute not
    guilty pleas. The trial court denied defendant’s motions.
    Subsequently, the trial court entered judgments of conviction reflecting his guilty and no-contest pleas, and explicitly dismissed the remaining counts in each accusatory
    instrument.
        “Defendant sought post-conviction relief in state court,
    but his requests were denied. Thereafter, he filed two petitions for writ of habeas corpus under 

    in the federal district court. In October 2008, the federal
    court issued a conditional writ of habeas corpus directing
    the state to ‘release defendant from custody within ninety
    days unless the state elects to appoint new counsel on
    behalf of defendant, conduct[s] a new hearing on petitioner’s motion to withdraw his guilty pleas, and either retries
    defendant, or (if defendant’s renewed motion to withdraw his guilty pleas is denied) resentences defendant.’ In
    its decision, the federal court explained that defendant’s
    trial counsel was ineffective under the Sixth Amendment
    to the United States Constitution by failing to ensure that
    defendant’s guilty plea to the charge of compelling prostitution was knowing, intelligent, and voluntary. In particular,
    the court concluded that, given the factual basis underlying the compelling prostitution charges against defendant
    (that defendant paid for sex), competent counsel would have
    advised defendant that the crime of compelling prostitution
    only applied to persons compelling remunerated sex with a
    third party, as opposed to a patron paying for sex. The state
    appealed the federal district court’s decision, and the Ninth
    Circuit Court of Appeals affirmed.
    1
      The summary in Ritchie I listed the charges in Case No. C003587CR
incorrectly. In that case, a grand jury indicted defendant on first-degree rape
(Count 1), two counts of first-degree sexual abuse (Counts 2 and 3), one count of
compelling prostitution (Count 4), and two counts of third-degree rape (Counts 5
and 6).
Cite as 

 (2020)                                   625

      “After the state’s unsuccessful appeal to the Ninth
  Circuit, the state trial court appointed new counsel for
  defendant and held a hearing in the summer of 2010 on
  defendant’s motion to withdraw his pleas. The court again
  denied defendant’s motion. Defendant filed a motion in
  the federal district court to ‘enforce[ the] judgment,’ which
  the court granted, concluding that defendant was entitled to withdraw his pleas and further stating, in relevant
  part:
        “ ‘The state is accorded a final opportunity to cure the
     constitutional errors that have occurred. This opportunity, explicitly, is: petitioner’s prior pleas on all charges
     are ordered withdrawn. The State may either elect to
     prosecute petitioner, or must dismiss all charges.’
      “On April 8, 2011, defendant moved to dismiss all
  charges against him. He argued that the compelling prostitution counts should be dismissed because case law that
  issued subsequent to his prior, now vacated, pleas barred
  prosecution for the offense, citing State v. Vargas-Torres,
  

, 

 (2010), in which we clarified
  that the crimes of promoting prostitution and compelling
  prostitution apply to third-party promoters, not patrons.
  The state agreed to dismiss the compelling prostitution
  counts in both cases and those counts were dismissed. As
  to the remaining charges, defendant argued that those
  counts were dismissed in the judgments of conviction
  entered subsequent to his plea agreements, and that the
  state cannot reinstate those dismissed counts without reindicting him. To support his position, defendant cited our
  decision in Dinsmore [II, 

], arguing that
  that case stood for the proposition that once charges are
  dismissed pursuant to a plea agreement, the state cannot
  revive those charges without reindicting the defendant
  when the defendant has subsequently prevailed in securing post-judgment relief.
     “The court denied defendant’s motion, concluding that,
  given that defendant’s plea agreements were ‘vacated’ by
  the federal court, the state could prosecute defendant on
  the charges that were dismissed pursuant to those plea
  agreements. That is, the cases reverted back to the preplea agreement posture.
     “After the court denied defendant’s motion to dismiss, he
  agreed to enter a conditional plea of guilty to third-degree
626                                              State v. Ritchie

   rape in Case No. C003587CR, and two counts of third-degree sexual abuse in Case No. C011455CR. In the plea
   agreement in Case No. C003587CR, done in open court on
   April 26, 2011, the parties agreed that ‘the DA will dismiss Counts 1 through 3 (Count 6 already dismissed); conditional plea; plea may be withdrawn if I prevail on appeal.’
   Similarly, in the plea agreement in Case No. C011455CR,
   also entered in open court, the parties agreed that ‘the DA
   will dismiss Counts 1 through 4 (Counts 7-9 already dismissed); conditional plea; I may withdraw plea if I prevail
   on appeal.’ The court pronounced defendant’s sentence that
   day: defendant was released with credit for time served and
   placed on bench probation for three years with ‘sex offender
   conditions.’ ”

 (internal brackets and footnote omitted).
         In Ritchie I, defendant appealed amended judgments rather than the judgments entered in May 2011. 

. We ultimately concluded that his failure to appeal the
May 2011 judgments precluded us from reaching the merits
of defendant’s appeal and affirmed. 

. Defendant
then pursued post-conviction relief, in which he claimed
that his trial counsel had failed to provide adequate assistance at the time of his conditional plea by not ensuring that
the denial of his motion to dismiss would be properly preserved for appeal. The post-conviction court agreed, entering a judgment granting him a “delayed appeal.” Thereafter,
defendant filed this delayed appeal.
         In this appeal, defendant again relies on our opinion in Dinsmore II to argue that the trial court erred in
denying his motion to dismiss. Specifically, defendant contends that, short of reindictment by the grand jury, a trial
court lacks statutory or other authority to allow the state to
pursue previously dismissed charges. The state challenges
defendant’s reliance on Dinsmore II, arguing that defendant
“overlooks the fact that this case is in a fundamentally different posture from Dinsmore,” because that case involved a
conditional plea—and the corresponding statutory right to
withdraw the plea upon a successful appeal—whereas here,
defendant obtained an order setting aside his judgments of
conviction. In light of the parties’ focus on Dinsmore II, we
begin with a review of that opinion.
Cite as 

 (2020)                                                 627

         In Dinsmore II, the defendant was indicted on
charges arising out of an automobile accident, including
second-degree manslaughter. 

. Before the
case went to trial, the state and the defendant entered into a
plea agreement. 

 The defendant entered a conditional plea
of “no contest” to the lesser-included offense of criminally
negligent homicide, reserving, under ORS 135.335(3),2 her
right to appeal the denial of her pretrial motions to exclude
evidence. 

 The plea agreement expressly provided that
the state would “dismiss the remaining counts in the indictment.” 

 (internal quotation marks omitted). Therefore,
upon the defendant’s plea of no contest to criminally negligent homicide, the trial court dismissed the “remaining”
counts, other than the underlying manslaughter charge. 

         The defendant appealed her conviction, and, for reasons not relevant here, we reversed and remanded, stating
that the defendant could choose whether to withdraw her
plea and go to trial or, instead, to stand by her plea. 

. On remand, the defendant opted to withdraw her plea.

 In response, the state moved to reinstate the previously
dismissed charges as alleged in the original indictment. 

The trial court granted the state’s motion, vacating its previous order dismissing those counts and stating that each
count of the indictment was “reinstated for prosecution.” 

The defendant pleaded not guilty to all charges and proceeded to trial, where the jury found her guilty on all counts.

         On appeal of the resulting convictions, the defendant argued that the trial court had erred in reinstating the
previously dismissed charges. 

 The state responded that,
when the defendant withdrew her no-contest plea, she had
repudiated the entire plea agreement, thereby freeing the
state to try her on all of the original counts. 

 We rejected
that argument. 

 We explained that, even assuming
that the state was correct to characterize the defendant’s
   2
     ORS 135.335(3) provides:
        “With 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.”
628                                                         State v. Ritchie

successful appeal as a repudiation of the plea agreement,
that did not end the inquiry. 

 The question remained
whether the trial court had authority to “reinstate” charges
it had previously ordered dismissed. 

. We concluded that it did not have that authority. 

.
      “The court’s dismissal of those counts constituted a final
      disposition of them; at the time of their dismissal, those
      charges were no longer pending in the trial court, and we
      are unaware of any statutory authority that authorized
      the trial court to revive them in light of the provisions of
      ORS 135.753.[3] Our reasoning is bolstered by Article VII
      (Amended), section 5, of the Oregon Constitution. Under
      that constitutional provision, only the grand jury can
      return an indictment, and, once issued, the substance of
      an indictment may not be amended by a court. Rather, an
      indictment must be resubmitted to the grand jury if it is to
      be amended substantively. State v. Russell, 

, 322-
      23, 

 (1962). By reviving the dismissed charges
      after a final disposition of them had been made, the trial
      court effectively permitted the state to re-indict defendant
      without grand jury authorization, similar to what would
      occur if a trial court undertook to order a substantive
      amendment to an existing indictment without resubmission to the grand jury. Consequently, we are required to
      reverse defendant’s convictions ….”

         The Supreme Court subsequently upheld our decision, but on alternate grounds. State v. Dinsmore, 

, 

 (2006) (Dinsmore III). The court explained
that it need not address whether the trial court had inherent

    3
      ORS 135.753, which we relied on in Dinsmore II, provides for the effect of a
dismissal:
        “(1) If the court directs the charge or action to be dismissed, the defendant, if in custody, shall be discharged. If the defendant has been released,
    the release agreement is exonerated and security deposited shall be refunded
    to the defendant.
        “(2) An order for the dismissal of a charge or action, as provided in ORS
    135.703 to 135.709 and 135.745 to 135.757, is a bar to another prosecution for
    the same crime if the crime is a Class B or C misdemeanor; but is not a bar if
    the crime charged is a Class A misdemeanor or a felony.
        “(3) If any charge or action is dismissed for the purpose of consolidation
    with one or more other charges or actions, then any such dismissal shall not
    be a bar to another prosecution for the same offense.”
Cite as 

 (2020)                                 629

authority to proceed on the original indictment. 

 Instead,
the court focused on the parties’ plea agreement, explaining:
       “In this case, it is undisputed that the plea agreement
   that the parties fashioned involved more than just a conditional plea entered pursuant to ORS 135.335(3). Both parties made major concessions to each other in reliance on
   their mutual promises. Under the terms of their agreement,
   the state agreed to dismiss all charges against defendant
   save one, in exchange for defendant’s ‘conditional plea of
   “No Contest” pursuant to ORS 135.335(3) to the charge of
   Criminally Negligent Homicide.’ As the prosecutor’s trial
   affidavit made clear, defendant’s right to withdraw her conditional plea if her appeal was successful was an integral
   and accepted part of that agreement. Defendant, in turn,
   waived a number of fundamental constitutional protections
   to plead to the remaining charge against her, knowing full
   well that, if her subsequent appeal was unsuccessful, she
   would be bound by her no contest plea.
       “Ultimately, defendant entered her conditional plea of
   no contest to the agreed-upon charge of criminally negligent homicide, and the state, as agreed, dismissed the
   other charges. Defendant, however, prevailed on appeal,
   and subsequently withdrew her plea, actions that were in
   keeping with the specific terms of the parties’ agreement.
   As a result, the state’s first argument that defendant’s plea
   withdrawal constituted a repudiation of her plea agreement
   is unavailing. Indeed, withdrawal of the conditional plea
   as permitted by ORS 135.335(3) was one of the incentives
   that the state offered to defendant in exchange for her no
   contest plea. The state’s second argument—that reinstatement of all the charges against defendant simply restores
   the status quo ante following defendant’s repudiation of the
   agreement—is similarly unavailing. The status quo ante
   of the parties’ relationship in this case was defined by the
   terms of the parties’ agreement, and defendant fully has
   performed her end of that bargain. She did not breach the
   agreement, she remains fully within its ambit, and she is
   now entitled to enforce its terms. The trial court erred in
   ratifying the state’s contrary position.”
Id. at 8-9. In other words, the Supreme Court rejected our
assumption that the defendant had repudiated the entire
plea agreement, and it did not reach the basis of our decision, namely, the trial court’s authority—or lack thereof—to
630                                            State v. Ritchie

reinstate dismissed charges. And, under the terms of the
plea agreement itself, the defendant had performed her
part of the bargain and had not repudiated the agreement;
accordingly, she was entitled to enforce its terms. Id. For that
reason, the trial court had erred in reinstating the charges
that it had dismissed pursuant to the agreement. Id.
         As noted, here defendant relies on our decision in
Dinsmore II rather than the Supreme Court opinion affirming that decision. The state, therefore, seeks to distinguish
Dinsmore II on its facts. The state points out that the defendant in Dinsmore negotiated a conditional plea and then, following appeal, took advantage of the statutory right to withdraw her plea in accordance with the parties’ agreement.
See Dinsmore II, 

. Here, on the other
hand, defendant successfully challenged his plea agreement
in habeas corpus proceedings, in which he “asserted that his
pleas were not constitutionally valid because his trial counsel had misadvised him about whether he could be convicted
of the two counts of compelling prostitution to which he had
pleaded guilty.”
          In seeking to distinguish Dinsmore II, the state
emphasizes that, to prevail in the habeas corpus action,
defendant was required to prove that (1) his attorney had
misadvised him prior to his entry of his guilty pleas, and
(2) if he had been properly advised, he would have rejected
the plea offer and chosen to go to trial. Hill v. Lockhart,

, 

, 

 (1985).
Therefore, the state reasons, the effect of the federal court’s
order vacating defendant’s pleas was to return his case to
the status quo ante, before defendant entered his no-contest
pleas and before the remaining charges had been dismissed.
In the state’s view, that places defendant’s case under the
purview of two statutes: ORS 135.365, which provides that
a trial court “may at any time before judgment, upon a plea
of guilty or no contest, permit it to be withdrawn and a plea
of not guilty substituted therefore,” and ORS 135.370, which
states that a “plea of not guilty controverts and is a denial
of every material allegation in the accusatory instrument.”
       The difficulty that we have with the state’s argument is that it effectively reprises an argument that we
Cite as 

 (2020)                             631

rejected in Dinsmore II. And, although the Supreme Court
affirmed our decision on different grounds, it left the reasoning of our decision intact. See Dinsmore III, 

 (“The
specifics of [the state’s] argument focus on what the state
perceives to be the trial court’s inherent authority to now
proceed on defendant’s original indictment and the Court
of Appeals’ impropriety in examining that authority on its
own motion. There is, however, a more fundamental issue
at play here, the resolution of which makes it unnecessary
to address those particular arguments.”). Given the absence
of any indication from the Supreme Court that our analysis
of the trial court’s ability to revive previously dismissed
charges was erroneous, Dinsmore II appears to remain good
law. See Growing Green Panda v. Dept. of Human Services,

, 

, rev den, 

(2020) (relying on our opinion in State v. McColly, 

, 

 (2017), rev’d on other grounds, 

, 

 (2019)); Hammond v. Hammond, 

, 

 (2019) (relying on our opinion
in Goodwin v. Kingsman Plastering, Inc., 

,

 (2014), aff’d on other grounds, 

, 

 (2016)); State v. McMullen, 

,

 (2012), rev den, 

 (2014) (relying on
our opinion in State v. Machuca, 

, 

 (2009), rev’d on other grounds, 

, 

(2010)). Therefore, the question is ultimately whether the
principle articulated in Dinsmore II controls here; for the
reasons that follow, we conclude that it does.
        As we explained in Dinsmore II, there is no evident
authority for a trial court to reinstate an indictment’s allegations once they have been dismissed; the way for the state
to proceed on dismissed charges is by resubmitting them to
the grand jury. 

. Nothing in the state’s
argument provides the authority that we found lacking in
Dinsmore II. We acknowledge a certain logical appeal in
the state’s argument that the federal court’s order vacating
defendant’s pleas effectively “returned [his case] to a point
before he had entered his pleas,” a point at which the trial
court had not yet dismissed the balance of his charges. As
the state observes (citing ORS 135.365 and ORS 135.370
for support), had defendant been permitted to withdraw his
632                                            State v. Ritchie

pleas as he requested in 2002, he would have proceeded to
trial and no charges would have been dismissed. From that
rational premise, the state concludes that the federal court’s
order “necessarily resulted in the April 2002 judgments
being set aside, including the dismissals contained therein.”
(Emphasis added.) We, however, do not agree.
         Whatever logical appeal the state’s argument may
have, it does not reflect what in fact occurred in this case,
nor does it adequately distinguish Dinsmore II. The federal
court directed the trial court to withdraw defendant’s prior
pleas on all charges and instructed the state to “either elect
to prosecute petitioner, or [to] dismiss all charges.” Ritchie,

. Notably, nothing in the record or in the
order vacating defendant’s pleas implies an intent to vacate
aspects of the trial court’s judgment that the federal court did
not mention—including the dismissals at issue here. Cf., 2A
Federal Procedure, Lawyers Edition § 3:871 (2020) (“Vacating
an order or opinion of the court is a judicial act by an appellate court which constitutes a substantive disposition which
can be taken only if the appellate court determines that such
action is warranted on the merits. The vacation of the judgment or order below deprives it of any effect, including precedential effect.”). Rather, in regard to actions that the trial
court was required to undertake, the record reflects only
that the federal court intended for “petitioner’s prior pleas
on all charges [to be] ordered withdrawn”; nothing reflects
an intent to have the trial court take any action in regard to
the dismissed counts. Ritchie, 

. Thus, if the
trial court had authority to reinstate the dismissed charges,
it was not by virtue of the federal court’s order.
         Moreover, the state’s argument that this case is
distinguishable from Dinsmore II because, here, “defendant
successfully repudiated the parties’ contract,” is similarly
unavailing. As noted, the state made essentially the same
argument in Dinsmore II, arguing that “when defendant
withdrew her plea … she repudiated the entire plea agreement.” Dinsmore II, 

. Although, as the
state correctly observes, the defendant in Dinsmore II had
entered a conditional plea under ORS 135.335(3), which
entitled her to withdraw her plea following a successful
appeal, the state has not persuaded us that that distinction
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makes a difference. See id. at 434. In both cases, the defendants were permitted to withdraw previously entered pleas.
See id. at 435. And, in both cases, the state argued that
the defendants had repudiated their plea agreements. See
id. Thus, the only arguable distinction between Dinsmore II
and this case is the manner in which the underlying plea
was repudiated.
         In Dinsmore II, however, the specific manner
in which the plea was repudiated played no part in our
analysis. What drove our decision in that case was that,
notwithstanding the defendant’s arguable repudiation of
her plea agreement, no statute authorized the trial court
to revive the previously dismissed charges, and the state
had not identified any other basis for concluding that the
trial court had that authority. Id. at 437. As we explained,
“in light of the provisions of ORS 135.753” and “Article VII
(Amended), section 5, of the Oregon Constitution … only
the grand jury can return an indictment, and, once issued,
the substance of an indictment may not be amended by a
court. Rather, an indictment must be resubmitted to the
grand jury if it is to be amended substantively.” Id. (citing
State v. Russell, 

, 

 (1962)).
In other words, we concluded that, even if the defendant
had repudiated her plea agreement, the trial court had no
authority to revive previously dismissed charges that had
not been resubmitted to the grand jury. Dinsmore II, 

. That, we explained, was because the trial
court’s dismissal of those counts constituted a final disposition of them. 

         As in Dinsmore II, then, the issue remains whether
anything authorized the trial court to revive charges that
it had previously dismissed. And, as in that case, the state
in this case has not identified any source of such authority.4
Accordingly, the trial court erred in denying defendant’s
motion to dismiss all counts against him.
           Reversed.
    4
      We express no opinion as to whether a plea agreement could specifically
provide for the reinstatement of dismissed charges, thereby obviating the need
for resubmission to the grand jury following a successful appeal or similar result.
We note only that the parties’ plea agreement in this case did not contain such a
provision.