352 May 7, 2025 No. 403
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BENJAMIN HARVIE STEED,
Defendant-Appellant.
Lane County Circuit Court
23CR19371; A182172
Debra K. Vogt, Judge.
Submitted September 24, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Armstrong, Senior Judge.
ARMSTRONG, S. J.
Reversed and remanded.
Kamins, J., dissenting.
Cite as 340 Or App 352 (2025) 353
ARMSTRONG, S. J.
Based on a no contest plea, the Springfield Municipal
Court convicted defendant under ORS 811.700(1)(b) of failure to perform the duties of a driver when property is damaged, which is a misdemeanor offense. Defendant timely
appealed his conviction to the Lane County Circuit Court,
and the City of Springfield moved to dismiss the appeal,
arguing that, because the judgment of conviction entered
by the municipal court was based on a no contest plea, the
circuit court lacked jurisdiction of defendant’s appeal. After
a hearing on the motion, the circuit court agreed with the
city and dismissed the appeal. Defendant timely appealed
the circuit court judgment dismissing his municipal court
appeal. We reverse the circuit court judgment and remand
based on our conclusion that the circuit court has jurisdiction of defendant’s appeal.
The resolution of this case turns on the construction
of ORS 157.010, which governs circuit court review of criminal judgments entered in justice courts and, in cases such
as this, criminal judgments entered in municipal courts.1
That statute provides:
“In a criminal action in a justice court, except where
the judgment is given on a plea of guilty, an appeal may be
taken from a judgment of conviction to the circuit court for
the county in which the judgment is given, as prescribed in
this chapter, and not otherwise.”
ORS 157.010 (emphasis added).
By its terms, the statute grants defendants a right
of appeal from justice court to circuit court from all judgments of conviction entered in justice court other than judgments entered on guilty pleas. As defendant contends, and
the state concedes, a judgment entered on a guilty plea is
not the same thing as a judgment entered on a no contest
1
Municipal courts have concurrent jurisdiction with justice courts over misdemeanors committed in the city in which they sit, ORS 221.339(2), and serve as
justice courts when they hear misdemeanor offenses. City of Milton-Freewater v.
Ashley, 214 Or App 526, 531, 166 P3d 587 (2007). Thus, while ORS 157.010 refers
only to justice courts, it applies to judgments from municipal courts that, as here,
adjudicate state misdemeanor offenses.
Id. Hence, our references to justice courts
in this opinion include municipal courts whose judgments are subject to review
under ORS 157.010.
354 State v. Steed
plea. Hence, absent statutory language that establishes
that, for purposes of ORS 157.010, a judgment entered on a
no contest plea is the same thing as a judgment entered on a
guilty plea, the circuit court has jurisdiction of defendant’s
appeal.
According to the state, ORS 135.345 provides the
necessary language to establish that, for purposes of ORS
157.010, a judgment entered on a no contest plea is the same
as a judgment entered on a guilty plea. That statute is among
those that the legislature enacted in 1973 to authorize and
govern no contest pleas in Oregon. It provides that “[a] judgment following entry of a no contest plea is a conviction of
the offense to which the plea is entered.” ORS 135.345. The
state reasons that, because the ultimate result of a guilty
plea and a no contest plea is the same, viz., entry of a judgment of conviction, it is appropriate to view the reference
in ORS 157.010 to a judgment entered on a guilty plea as
encompassing a judgment entered on a no contest plea.
So understood, that reasoning is fallacious. A judgment of conviction entered on a jury verdict is a judgment of
conviction of the offense to which the verdict applies, yet no
one would consider a judgment of conviction on a jury verdict and a judgment of conviction on a guilty plea to be the
same thing, absent statutory language indicating an intention to treat them that way. The state identifies no statutory
language that indicates a legislative intention to treat the
reference in ORS 157.010 to a judgment entered on a guilty
plea as a reference to a judgment entered on a no contest
plea.
The lack of such language is not surprising, given
that the operative language in ORS 157.010 was adopted in
1864 as part of the Deady Code. General Laws of Oregon,
Procedure in Justices’ Courts, ch XI, § 106, p 602 (Deady
1845-1864). No contest pleas were not recognized in Oregon
when the legislature adopted the Deady Code, see General
Laws of Oregon, Code Crim Procedure, ch XII, § 132, p 463
(
Deady 1845-1864), so the reference in ORS 157.010 to a judgment entered on a guilty plea cannot conceivably have been
understood to refer to a judgment entered on a no contest
plea. Because that reference cannot have been so understood
Cite as
340 Or App 352 (2025) 355
when the legislature enacted the statute in 1864, the state
would need to find statutory language that alters the meaning of the reference in ORS 157.010 to a judgment given on
a guilty plea. It has not done that, because there is no such
language.
Our review of Oregon statutes governing no contest
pleas bolsters that conclusion. In each instance in which the
legislature has treated guilty pleas and no contest pleas the
same, it has done that explicitly by referring to both types
of pleas. The most telling example of that is found in ORS
138.105(5), which addresses aspects of appeals from circuit
court to the appellate courts in cases involving guilty pleas
and no contest pleas. It provides:
“The appellate court has no authority to review the
validity of the defendant’s plea of guilty or no contest, or a
conviction based on the defendant’s plea of guilty or no contest, except that:
“(a) The appellate court has authority to review the
trial court’s adverse determination of a pretrial motion
reserved in a conditional plea of guilty or no contest under
ORS 135.335.
“(b) The appellate court has authority to review
whether the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of
separate convictions results from an agreement between
the state and the defendant.”
ORS 138.105(5) (emphasis added).
As that example illustrates, because guilty pleas
and no contest pleas are not the same thing under Oregon
law, to the extent that the legislature intends that they be
treated the same way, it has enacted statutes to do that. The
state has identified no statute—nor have we—that can be
understood to make the reference in ORS 157.010 to a judgment given on a guilty plea to mean a judgment given on a
no contest plea.
In sum, a judgment of conviction entered in justice court on a no contest plea is a judgment that is subject
to appeal to the circuit court under ORS 157.010. The circuit court erred in concluding otherwise and in dismissing
356 State v. Steed
defendant’s appeal on the ground that it lacked jurisdiction
of it.2
Reversed and remanded.
KAMINS, J., dissenting.
This criminal appeal presents a single legal issue:
Can a defendant who pleads no contest to a misdemeanor
in municipal court appeal the resulting conviction to a circuit court given that a defendant who pleads guilty may not?
The majority concludes that the answer is yes. Because that
result would frustrate the legislative intent to prevent such
appeals, I respectfully dissent.
I agree with that majority that the resolution of this
case turns on this statutory language:
“In a criminal action in a justice court, except where
the judgment is given on a plea of guilty, an appeal may be
taken from a judgment of conviction to the circuit court for
the county in which the judgment is given, as prescribed in
this chapter, and not otherwise.”
ORS 157.010 (emphasis added). The majority’s construction focuses solely on the text—nowhere in the text do the
words “no contest plea” appear. But the analysis cannot, and
should not, end there.
As an interpretative matter, our role is to discern
the legislature’s intent. According to the majority’s interpretation, the legislature intended to allow appeals to circuit
2
The dissent engages in an elaborate but ultimately unavailing effort to
equate a guilty plea with a no contest plea. ___ Or App at ___ (Kamins, J., dissenting) (slip op). Those pleas are not and have never been the same. If the 1864
legislature had intended the predecessor to ORS 157.010 to apply to no contest
pleas, it would have used different language than it did, perhaps, for example,
drafting the statute to refer to guilty pleas and other pleas of confession. It did
not do that, and we cannot pretend that it did.
The 1973 legislature that established no contest pleas in Oregon recognized
the difference between guilty and no contest pleas and added references to no
contest pleas to a number of Oregon statutes that deal with guilty pleas, but not
to ORS 157.010. If the failure to amend ORS 157.010 to encompass no contest
pleas was an oversight, it’s an oversight that only the legislature can correct.
As it is, the Oregon Law Commission has proposed a comprehensive revision
of justice court procedures, which has been introduced in the 2025 Oregon legislative session as House Bill 2460. That bill, if enacted, could address the question
that this case presents about the treatment of no contest pleas in justice court.
Cite as 340 Or App 352 (2025) 357
court from the entry of a no contest plea, but not a guilty
plea. The majority identifies no support for that conclusion in the context or legislative history of the statute, nor
does the majority offer a single reason—and I can think of
none—that the legislature would have intended to treat the
two pleas differently.
The text, as the majority acknowledges, is from a
time before no contest pleas were formally recognized in
Oregon’s courts (or the term “no contest plea” even existed).
___ Or App at ___ (May 7, 2025) (slip op at 3). The statute’s
context and legislative history, however, show that the legislature intended for ORS 157.010 to encompass all categories
of pleas that have the same force and effect as guilty pleas
in the context of criminal prosecutions, including no contest
pleas.
In questions of statutory interpretation, we begin
with the text and context of the statute. See State v. Gaines,
346 Or 160, 171, 206 P3d 1042 (2009) (the first step in interpreting a statute is “an examination of text and context”). As
the majority observes, the text alone precludes only appeals
from guilty pleas made in justice courts and is silent on all
other appeals—including appeals from convictions resulting
from no contest pleas.
But text cannot be “interpret[ed] … in a vacuum.”
Alfieri v. Solomon, 358 Or 383, 393, 365 P3d 99 (2015). In
addition to text, we must also give “primary weight” to the
statute’s context. Gaines,
346 Or at 171. “Context for a statute can include ‘essentially anything of which the legislature
could have been aware at the time of a given enactment.’ ”
State v. Eggers,
372 Or 789, 799-800, 558 P3d 830 (2024)
(quoting State v. Azar,
372 Or 163, 175, 547 P3d 788 (2024)).
As the language of the statute has remained relatively
unchanged since 1864, the question, then, is what Oregon
lawmakers, in 1864, could have been aware of regarding
guilty pleas and other types of pleas that did not contest
guilt.
While the legal concept known as a “guilty plea”
has existed for more than eight centuries, the term “guilty
plea” only came into common usage in the 1800s. Albert W.
358 State v. Steed
Alschuler, Plea Bargaining and Its History, 79 Colum L Rev
1, 11 (1979). Prior to that, “what we call a guilty plea was
simply called a ‘confession.’ ” Id. And, unlike today, those
confessions were often not accepted by judges, at least for
serious crimes:
“[T]he so-called ‘express confession’ of the accused on
arraignment, or plea of guilty, … were not commonly
accepted and recorded as convictions in cases of felony. In
[William Hawkins, 2 Pleas of the Crown 466 (8th ed 1824)],
it is stated …
“ ‘And where a person upon his arraignment actually
confesses himself guilty … the judges, upon probable
circumstances that such confession may proceed from
fear, menace, or duress, or from weakness or ignorance,
may refuse to record such confession, and suffer the
party to plead not guilty.’ ”
Tucker v. United States, 196 F 260, 266 (7th Cir 1912), overruled on other grounds, Hudson v. United States, 272 US 451,
456-57,
47 S Ct 127,
71 L Ed 347 (1926) (internal citation
omitted).
Similarly, although the “no contest plea” is a modern creation, another type of “confession” existed at common
law: the nolo contendere plea, in which a defendant would
not contest the charges against him but put himself at the
mercy of the court and submitted to a small fine. Nathan B.
Lenvin & Ernest S. Meyers, Nolo Contendere: Its Nature and
Implications, 51 Yale L J 1255, 1256 (1942) (citing Hawkins,
2 Pleas of the Crown at 466). Indeed, to the extent that courts
or legislatures in the 19th century did consider nolo contendere pleas, the plea—and its effect—were treated identically to a confession of guilt. See Alschuler, Plea Bargaining
and Its History at 13 (noting that nolo contendere pleas
were considered a subset of more general confessions). And
just like other “confessions” at that time, nolo contendere
pleas were accepted at a judge’s discretion. Tucker, 196 F
at 266; Commonwealth v. Ingersoll, 14 NE 449, 450 (Mass
1888) (a court “may accept or decline” a nolo contendere plea
“in its discretion”). The nolo contendere plea, however, had
the same effect as a guilty plea, and its sole difference from
Cite as
340 Or App 352 (2025) 359
guilty pleas was that it could not be used as an admission
against a defendant in a civil suit:
“The plea of nolo contendere was long known at common
law. It was there regarded, not as a plea of right, but as a
plea of grace, to be accepted or refused by the court in its
discretion. This was because the plea was neither one of
guilty nor one of not guilty, but rather an appeal for mercy.
… It was, however, treated as a plea and its effect, when
entered, was that of confession of guilt, and on a record thus
made sentence could validly be imposed; but the confession,
implicit in the plea, could not be used against the defendant in any civil suit for the same act.”
Hudson v. United States, 9 F2d 825, 825 (3d Cir 1925), aff’d,
272 US 451,
47 S Ct 127,
71 L Ed 347 (1926) (emphasis
added).3
Given the fact that nolo contendere pleas and guilty
pleas had the same force and effect at common law, the 1864
legislature, in codifying the effect of pleading guilty would
have no reason to distinguish between the two. See Montara
Owners Assn. v. La Noue Development, LLC, 357 Or 333, 341,
353 P3d 563 (2015) (“The context for interpreting a statute’s
text includes the preexisting common law, and we presume
that the legislature was aware of that existing law.”).
That view persists today. Then, and now, no contest pleas are meant to have the same force and effect as
guilty pleas. See Bergerson v. Salem-Keizer School Dist., 194
Or App 301, 305 n 6, 95 P3d 215 (2004), aff’d,
341 Or 401,
144 P3d 918 (2006) (explaining that a plea of no contest is
“the equivalent of a guilty plea”); State v. Dawson,
57 Or App
420, 425,
644 P2d 665 (1982) (a no contest plea “amounts to
a guilty plea”).
ORS 135.345, the statute explaining the result of a no
contest plea, provides useful context for that understanding.
3
We do not know whether Oregon courts accepted nolo contendere pleas at
common law in the 1800s. The term appears for the first time in an Oregon appellate court decision in a 1959 case holding that a federal conviction stemming from
a nolo contendere plea could not be used to support the disbarring of an attorney
on moral turpitude grounds. In re Maurice C. Corcoran, 215 Or 660, 662,
337 P2d
307 (1959). That conclusion is consistent with the common law understanding of
the plea: that it could not be used as an admission against a defendant in a later
civil proceeding.
360 State v. Steed
That statute, which was adopted in 1973 as part of an overhaul of this state’s criminal procedure code, provides that
“[a] judgment following entry of a no contest plea is a conviction of the offense to which the plea is entered.” Put simply,
the end result from both a guilty plea and a no contest plea
is exactly the same: a judgment of conviction.
The majority understands that reasoning to be “fallacious” and points out that a judgment of conviction following a jury verdict is, like a plea, also a judgment of conviction.
___ Or App at ___ (slip op at 2). But that argument fails to
account for the fact that the legislature intended the pleas to
be similar in a way that it never intended a trial and a guilty
plea to be. Compare Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Procedure Code,
Final Draft and Report § 253, 150 (Nov 1972) (Commentary)
(“[T]he purpose of the ‘no contest’ plea is to provide for more
flexibility in the criminal pleading process, particularly in
the Alford type of case.[4] The plea, however, would be considered to have the same force and effect as a ‘guilty’ plea.”
(Emphasis added.)) and Tape Recording, Criminal Law
Revision Committee, Mar 9, 1972, Tape 5, Side 2 (comments
of Commission Chairman Yturri that, under the draft, the
effect of a no contest plea was a guilty plea so that it made
little difference which plea was entered); with Commentary
§§ 331-32 at 193-94 (a plea of not guilty results in an issue
of fact that “shall” be tried by jury) and ORS 135.370 (“The
plea of not guilty controverts and is a denial of every material allegation in the accusatory instrument.”).
Finally, the majority, in reviewing Oregon statutes
governing no contest pleas, notes that when the legislature
evinces its intent to treat guilty and no contest pleas the
same, it has, at times, done so explicitly. ___ Or App at ___
(slip op at 3). Indeed, the 1973 Criminal Code amended
many other statutes to change “guilty pleas” to “guilty or no
contest pleas” but did not add “or no contest pleas” to ORS
157.010. See Commentary §§ 254-56 at 150-51; id. §§ 590-91
at 288 (gathering amendments). It appears that the majority
4
In North Carolina v. Alford, 400 US 25, 38,
91 S Ct 160,
27 L Ed 2d 162
(1970), the United States Supreme Court held that judges may, at their discretion, constitutionally accept guilty pleas from defendants who simultaneously
assert their innocence, so long as there exists a “strong factual basis” for the plea.
Cite as
340 Or App 352 (2025) 361
would take that failure to mean that the legislature in 1973
made a conscious choice not to add that language to ORS
157.010. But we have repeatedly held a later legislature’s
intent has no bearing on what an earlier statute means. See,
e.g., Bridge Creek Ranch v. Water Resources Dept.,
329 Or
App 568, 586, 541 P3d 920 (2023) (citing DeFazio v. WPPSS,
296 Or 550, 561,
679 P2d 1316 (1984) (“The views legislators
have of existing law may shed light on a new enactment,
but it is of no weight in interpreting a law enacted by their
predecessors.”)).
And to the extent that the 1973 legislature’s intent
even could assist this court in discerning the 1864 legislature’s intent, that reasoning is unpersuasive. A closer examination of the legislative history of the 1973 Criminal Code
revision shows that, far from the Commission making a
substantive choice to exclude justice courts from its revision
adding no contest pleas, the Commission simply ran out of
time. Tape Recording, Criminal Law Revision Commission,
Jan 28, 1972, Tape 4, Side 1.5
Even without that insight from the Commission’s
meeting, we still take care in reading legislative intent into
legislative silence, Crimson Trace Corp. v. Davis Wright
Tremaine LLP, 355 Or 476, 497-98, 326 P3d 1181 (2014)
(“The mere expression of one thing does not necessarily
imply the exclusion of all others.” (Emphasis in original.)),
and only do so in the absence of more direct evidence, MEC
Oregon Racing, Inc. v. Oregon Racing Comm.,
233 Or App 9,
20, 225 P3d 61 (2009), rev den,
348 Or 280 (2010) (“[A] rule
of permissible [negative] inference … gives way to other,
more direct, and contrary evidence of legislative intent.”
(Emphasis omitted.)).
5
Robert W. Chandler, a member of the Commission, observed that if the
Commission could complete its revision of the criminal procedure code within
the allotted period and still have time to revise the criminal procedure statutes
of municipal and justice courts, he “wouldn’t object to taking it on,” but he would
be opposed to adding that task “at the present time,” given that the Commission
was supposed to complete its entire revision in the next seven months. Tape
Recording, Criminal Law Revision Commission, Jan 28, 1972, Tape 4, Side 1.
After further discussion, the Commission concurred with Mr. Chandler and
never revised any of the municipal court and justice court criminal procedure
statutes.
362 State v. Steed
Without legislative history of the 1864 legislature’s original provision to guide interpretation, we turn
to general maxims of construction to help “in resolving the
remaining uncertainty.” Landwatch Lane County v. Lane
County, 335 Or App 543, 546, 560 P3d 104 (2024) (quoting
Gaines,
346 Or at 172). In particular, we have often chosen
to adopt “the construction the legislature most likely would
have preferred had it thought about the matter.” Hon. Jack
L. Landau, Oregon Statutory Construction, 97 Or L Rev 583,
728 (2019); see also Angle v. Board of Dentistry,
294 Or App
470, 479, 431 P3d 447 (2018) (“[W]hen a specific issue is not
addressed clearly in a statute or its legislative history, we
use the broader purpose of the statute as a guide in our
attempt to discern what the legislature would have intended
had it considered it.” (Internal quotations omitted.)). Had
the 1864 legislature considered whether to allow appeals
from the subcategory of confessions we now call no contest
pleas, there is no indication, or reason why, they would have
treated those appeals differently than appeals from guilty
pleas.
To summarize: Convictions from no contest pleas
should not be treated differently than convictions from
guilty pleas. I would affirm the lower court’s grant of the
state’s motion to dismiss defendant’s appeal because a circuit court may not review the judgment of conviction of a
defendant that pleads no contest to a state crime in municipal court. Therefore, I respectfully dissent.
