State v. Johnson

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, P.J.
• Citation: State v. Johnson, 278 Or App 344, 374 P.3d 998 (Or. App. 2016)
• Decision Date: 18 May 2016
• Docket Number: A154905 (Control), A154906.,871035653, 880431573
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Stressla Lynn JOHNSON, aka Ira Roscoe Sheppard, Defendant–Appellant.

278 Or.App. 344

374 P.3d 998

STATE of Oregon, Plaintiff–Respondent,

v.Stressla Lynn JOHNSON, aka Ira Roscoe Sheppard, Defendant–Appellant.

871035653, 880431573

A154905 (Control), A154906.

Court of Appeals of Oregon.

Argued and Submitted Jan. 14, 2015.

Decided May 18, 2016.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Stressla Lynn Johnson filed the supplemental brief pro se.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Aliza B. Kaplan and Janis C. Puracel filed the brief amicus curiae for Oregon Innocence Project.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.^*

ARMSTRONG, P.J.

In these consolidated cases, defendant appeals a trial court order that denied defendant's motions under ORS 138.690 for DNA testing on the ground that defendant had waived in his 1993 plea agreement his right to seek that relief.¹ As explained below, we reverse and remand.

We begin with the pertinent historical and procedural facts, which are undisputed, taking them from the trial court's order:²

“Defendant was convicted and sentenced to death in 1989 following a jury trial for aggravated murder (victim: Beverly Gail Wilder) in case number 8710–35653 [A154905]. The conviction was ultimately reversed and remanded for a new trial. [See State v. Johnson, 313 Or. 189, 832 P.2d 443 (1992).] In the interim, defendant was also convicted of aggravated murder (victim: Bobbie Jean Johnson) in 1990 after a jury trial, and sentenced to life imprisonment with a minimum sentence served of 30 years, in case number 8804–31573 [A154906]. While the appeal was pending in the latter case, the state conceded error (introduction of inadmissible evidence of the Wilder murder) and defense counsel prepared a proposal to settle both cases.

“The state and defense subsequently entered into plea negotiations to bring an end to all litigation arising from these cases. It was agreed that defendant would plead ‘no contest’ to a count of murder in each case and would serve concurrent life sentences with the possibility of parole only after a minimum sentence served of 22 1/2 years (a ten year minimum sentence in case no. 8804–31573 consecutive to a 12 1/2 year minimum sentence in case no. 8710–35653). The negotiations eliminated the possibility of the death penalty for the defendant if again convicted on the first case, and the potential of a consecutive life sentence with a minimum imposed on the second conviction. In addition, numerous other felony charges were dismissed. The state, in conceding these possible sanctions, secured a minimum 22 1/2 year term of imprisonment before the possibility of parole with post prison supervision for life, without further trial of either case.

“After several exchanges of the proposed language, the focus of which became the rights the defendant would [forgo], the agreement states in paragraph 10 (see attached) that defendant agrees to waive his right to collaterally attack the convictions without exception:

“ ‘The defendant freely, voluntarily, knowingly and intelligently agrees to waive his [right to collateral attack by state and/or³ ] federal post [-]conviction and/or habeas corpus filings with regards to the validity of the sentence, competence of counsel, the validity of these convictions and any attack on the validity of the proceedings involved underlying his plea of no contest, findings of guilt and sentencing in this matter. The defendant acknowledges that he has been advised by counsel of the alternatives as well as the consequences of this plea agreement including his rights to challenge a sentence by way of direct or collateral attack. The defendant freely, voluntarily, knowingly and intelligently chooses to enter into this agreement and [forgo] litigation of these potential issues. The defendant is satisfied with his counsel and the assistance [he has] received from [defense counsel] in this matter.’ ”

(Emphases omitted.)

The plea agreement also specified, in paragraph 11, that “any limit upon defendant's right to use post-conviction or habeas corpus remedies would only apply to actions contesting the validity of his murder convictions and would not prevent challenges to conditions of confinement, incarceration or any other action not related to the Wilder and Johnson murder cases.” In addition, paragraph 12 provided that, if defendant attempted to challenge the plea agreement, the agreement could be rescinded and the state could reinstate the dismissed charges and seek the death penalty. During plea negotiations, the state rejected a term proposed by defendant's attorney that defendant would not be barred from raising an innocence claim based on newly discovered evidence.

The plea agreement was executed in April 1993. The trial court accepted defendant's pleas and entered judgments of conviction.

In 2001, the legislature enacted a statutory procedure by which certain convicted defendants could request and obtain DNA testing of evidence secured in connection with the prosecution of the cases that led to their convictions. Or. Laws 2001, ch. 697. That statutory scheme is now codified at ORS 138.690 to 138.698.⁴

In 2007, defendant filed motions under ORS 138.690, requesting the court to order DNA testing of evidence in each of his cases—that is, circuit court case numbers 8710–35653 and 8804–31573. The trial court denied defendant's motions on the ground that the terms of defendant's 1993 plea agreement constituted a waiver of his right to request DNA testing. In particular, the court concluded that the agreement “bar[red] the defendant from seeking new evidence through DNA testing under ORS 138.690 to be used as grounds to collaterally attack [his] convictions on the basis of ‘actual innocence.’ ” Consequently, the trial court did not address whether defendant satisfied the statutory criteria for obtaining DNA testing. Defendant appeals the trial court order denying his motions.⁵

Defendant advances three reasons for reversing the trial court's denial of his motions. First, he contends that the trial court erred in construing the terms of the plea agreement to waive his statutory right to request DNA testing under ORS 138.690, and in any event, judicial enforcement of such a waiver violates public policy. Second, defendant argues that he could not knowingly have waived a right years before the scientific and legal framework for the right existed.⁶ Third, defendant argues that judicial enforcement of such a waiver would be unconstitutional because it would violate due process. As explained below, we agree with defendant's first argument—that the terms of the plea agreement do not preclude defendant from requesting DNA testing under ORS 138.690 —and, accordingly, we reverse and remand on that basis.

Contract law principles generally govern the interpretation of a plea agreement. State v. Heisser, 350 Or. 12, 23, 249 P.3d 113 (2011).⁷ Thus, we “first ‘examine[ ] the text of the disputed provision, in the context of the document as a whole. If the provision is clear, the analysis ends.’ ” Id. at 25, 249 P.3d 113 (quoting Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019 (1997) (footnote omitted)). “The meaning of an unambiguous contractual provision is a question of law[,]” as is “[t]he determination whether a contractual provision is ambiguous.” Id. at 25–26, 249 P.3d 113. Applying that construct, we conclude that the plea agreement is not ambiguous and that it does not bar defendant from seeking DNA testing under ORS 138.690.

We begin with paragraph 10 of the plea agreement, which, again, provides:

“The defendant freely, voluntarily, knowingly and intelligently agrees to waive his right to collateral attack by state and/or federal post-conviction and/or habeas corpus filings with regards to the validity of the sentence, competence of counsel, the validity of these convictions and any attack on the validity of the proceedings involved underlying his plea of no contest, findings of guilt and sentencing in this matter.

The defendant acknowledges that he has been advised by counsel of the alternatives as well as the consequences of this plea agreement including his rights to challenge a sentence by way of direct or collateral attack. The defendant freely, voluntarily, knowingly and intelligently chooses to enter into this agreement and [forgo] litigation of these potential issues. The defendant is satisfied with his counsel and the assistance he has received from [defense counsel] in this matter.”

(Emphasis added.) The parties' dispute focuses on the meaning of the italicized text; that is, they offer competing views on whether a motion for DNA testing constitutes a “collateral attack by state and/or federal post-conviction * * * filings with regards to the validity of the sentence, competence of counsel, the validity of these convictions and any attack on the validity of the proceedings involved underlying his plea of no contest, findings of guilt and sentencing in this matter” within the meaning of the plea agreement.⁸

As a textual matter, defendant first contends that the parties could only have understood “post-conviction filings” to mean litigation authorized under Oregon's Post–Conviction Hearing Act, ORS 138.510 to 138.680 (the Act), and a motion for DNA testing clearly falls outside the Act. See 138.680 (identifying ORS 138.510 to 138.680 as the Post–Conviction Hearing Act); ORS 138.690 –138.698 (establishing procedures for requesting and obtaining testing of DNA evidence by people convicted of certain crimes). Defendant also argues that the motion is not a collateral attack within the meaning of the agreement because “the only relief under ORS 138.692 is the opportunity to secure DNA testing” and the “testing results may or may not lead to an attack...