State v. Buchholz

Citation788 P.2d 998,309 Or. 442
PartiesSTATE of Oregon, Respondent on Review, v. Daniel Edward BUCHHOLZ, Petitioner on Review. TC 10-87-00725; CA A45808; SC S36317.
Decision Date18 April 1990
CourtSupreme Court of Oregon

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause on behalf of the respondent on review.

GILLETTE, Justice.

The issue in this murder case is whether the trial court should have ordered the district attorney to offer defendant the same plea bargain offered to his codefendant. 1 The Court of Appeals held that the trial court properly refused to issue such an order. State v. Buchholz, 97 Or.App. 221, 775 P.2d 896 (1989). We affirm.

FACTS

Defendant, Daniel Edward Buchholz, and his friend, Russell Cooper, killed 91-year-old George Small while committing a robbery. Defendant and the victim were acquaintances. Cooper and the victim met for the first time the day before the incident.

Defendant and Cooper spent the week before Small's death together, visiting friends and smoking marijuana. On October 29, 1986, the day before the crime, defendant and Cooper visited Small and obtained used pop bottles and cans which they exchanged for money at a nearby market. They spent this money on gasoline while they continued to use marijuana.

The two men returned to Small's house the next day and witnessed Small paying for the installation of a new water purifier. Small handed $300 to the purifier installer and returned the rest of his money to his wallet. At this point defendant spoke to Cooper and persuaded him that they should rob Small. The plan called for Cooper to hit Small in the back of the head with Small's cane while defendant distracted him. Sometime after 12:30 p.m., defendant and Cooper carried out their plan.

Cooper hit Small in the back of the head; Small fell to the floor. Defendant grabbed Small's cane. Both Cooper and defendant then ran out of the house. They drove to a nearby bridge and threw the cane out of the car window. At defendant's suggestion, they then returned to Small's house "to get the money." Cooper waited in the car while defendant reentered the house. Once inside, defendant adjusted the crime scene to make it look like Small had accidentally fallen. He took Small's wallet. At approximately 1:45 p.m., Small's relatives found Small injured and sitting on the floor. By the time he reached the hospital, Small was unconscious. He died on October 31 as a result of the skull fracture inflicted by the cane.

Although the police did not at first suspect criminal involvement in Small's death, they eventually came to suspect defendant and Cooper. Both men were arrested.

In exchange for his testimony against defendant, Cooper was permitted to plead guilty to manslaughter in the first degree and robbery in the first degree, rather than to felony murder and robbery in the first degree, the offenses with which he originally had been charged. Based in part upon Cooper's testimony, defendant was convicted of felony murder and robbery in the first degree and sentenced to life in prison.

THE STATUTORY ISSUE

ORS 135.405(4) provides:

"Similarly situated defendants should be afforded equal plea agreement opportunities."

Defendant argues that the statutory directive is mandatory and, because he and Cooper committed the same crime together, they are "similarly situated" under ORS ORS 135.415 provides a nonexclusive list of criteria "the district attorney may take into account" (emphasis added) in making plea agreements. One of these criteria is the defendant's cooperation with the authorities:

135.405(4), notwithstanding any differences in their criminal history or the exact role they played in the planning and commission of this offense. The state argues the contrary of both these propositions. Under the facts of this case, we do not find it necessary to resolve these disputes.

"The defendant has given or offered cooperation when the cooperation has resulted in or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct."

ORS 135.415(5). Cooper was willing to and, in fact, did testify against defendant. Defendant nowhere alleges, and the record does not reveal, that he was equally willing to cooperate with the authorities and testify against Cooper. Even assuming that the statute is mandatory, in the absence of such willingness, the two defendants were not "similarly situated" under ORS 135.405(4). Thus, the district attorney's failure to offer defendant a plea bargain comparable to that offered to Cooper did not violate the statute.

CONSTITUTIONAL ISSUE

Article I, section 20, of the Oregon Constitution provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

Defendant argues that the opportunity to plead guilty to a lesser offense is a "privilege" under section 20 which was granted to Cooper but was not made available to him. We will assume that, at least in certain circumstances, the equal opportunity to plea bargain, recognized by statute, is a privilege protected by section 20. Thus, for example, district attorneys may not decide whether to plea bargain based on impermissible criteria, such as race or religion. See, e.g., Hale v. Port of Portland, 308 Or. 508, 783 P.2d 506 (1989). However, defendant does not in this case claim he is being discriminated against because he belongs to such a class of persons.

Section 20 protects individual citizens as much as it does classes of...

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17 cases
  • State v. McDonnell
    • United States
    • Supreme Court of Oregon
    • 21 d4 Junho d4 1990
    ...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 P.2d 998 (1990). ORS 135.415 "In determining whether to engage in plea discussions for the purpose of reaching a plea agreement, the distri......
  • State v. Savastano
    • United States
    • Supreme Court of Oregon
    • 12 d4 Setembro d4 2013
    ...applied a less rigorous standard that focused on rational, reasonable, and consistent decisions.A second decision, State v. Buchholz, 309 Or. 442, 788 P.2d 998 (1990), looks in the same direction. In that case, the prosecutor did not offer a plea agreement to the defendant but did offer a p......
  • State v. McDonnell
    • United States
    • Supreme Court of Oregon
    • 9 d4 Julho d4 1992
    ...a decision by the district attorney whether or not to engage in plea negotiations is subject to judicial scrutiny. State v. Buchholz, 309 Or. 442, 446, 788 P.2d 998 (1990); State v. Farrar, supra, 309 Or. at 139, 786 P.2d 161; State v. Freeland, supra, 295 Or. at 370, 667 P.2d 509. In decid......
  • State v. Cunningham
    • United States
    • Supreme Court of Oregon
    • 9 d5 Setembro d5 1994
    ...the defendant's invitation to attempt to inquire into the proportionality or the availability of plea bargaining. In State v. Buchholz, 309 Or. 442, 444, 788 P.2d 998 (1990), the defendant asserted that a district attorney's failure to offer the same plea bargain to the defendant as had bee......
  • Request a trial to view additional results
1 books & journal articles
  • Recasting prosecutorial discretion.
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 No. 3, March 1996
    • 22 d5 Março d5 1996
    ...line of demarcation between prosecutorial duty and (236) Landis v. Farrish, 674 P.2d 957, 958 (Colo. 1984). (237) State v. Buchholtz, 788 P.2d 998, 1000 (Or. 1990). (238) Id. (239) Wash. Rev. Code Ann. [sections] 9.94A.440 (West Supp. 1996). (240) See ALaksa Stat. [sections] 44.23.020 (Supp......

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