State v. Ritchie

306 Or.App. 622

475 P.3d 903

STATE of Oregon, Plaintiff-Respondent,

v.Brian James RITCHIE, Defendant-Appellant.

A163940 (Control)

A163941

Court of Appeals of Oregon.

Argued and submitted September 18, 2018

September 23, 2020

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.

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 , 200 Or. App. 432, 116 P.3d 226 (2005), aff'd , 342 Or. 1, 147 P.3d 1146 (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 , 265 Or. App. 103, 105, 333 P.3d 1191, rev. den. , 356 Or. 575, 342 P.3d 88 (2014) ; see also State v. Criswell , 282 Or. App. 146, 153, 386 P.3d 58 (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 , 263 Or. App. 566, 567, 330 P.3d 37, rev. den. , 356 Or. 163, 334 P.3d 971 (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 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 28 USC section 2254 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.

"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 , 237 Or. App. 619, 242 P.3d 619 (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 , 200 Or. App. 432, 116 P.3d 226], 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 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.’ "

Id. at 567-70, 330 P.3d 37 (internal brackets and footnote omitted).

In Ritchie I , defendant appealed amended judgments rather than the judgments entered in May 2011. Id. at 571, 330 P.3d 37. We ultimately concluded that his failure to appeal the May 2011 judgments precluded us from reaching the merits of defendant's appeal and affirmed. Id. at 567, 330 P.3d 37. 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.

In Dinsmore II , the defendant was indicted on charges arising out of an automobile accident, including second-degree manslaughter. 200 Or. App. at 434, 116 P.3d 226. Before the case...