June 2006 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

City - County Operator telephone number

We all know how important it is for you to be in court on time. But sometimes you just get stuck in another courtroom with something that took longer than you expected, or there is an accident on the freeway that delays you, or you did not anticipate how long the security line would be to get into the courthouse. Common courtesy dictates that you call the judge’s office before you are expected to be there if you will be delayed.

But we have 38 judges in Multnomah County, all with different telephone numbers. You cannot be expected to have all 38 telephone numbers in your cell phone memory. The good news is that you do not have to know the telephone number of any individual judge. The City of Portland and Multnomah County together share a telephone operator that can get you to any office in the courthouse. Just call 503.988.3511 and ask for the office of the judge who is expecting you. Put the city-county operator’s telephone number in your cell phone memory and you will be able to reach any judge’s office easily.

Plea agreements - criminal cases

The vast majority of criminal cases are concluded with some type of plea bargain, and without a trial. Most of these pleas are accomplished in court with no problem. But, occasionally a misunderstanding about the “bargain” becomes apparent in court at the time of the plea. Prosecutors and defense counsel should work to have a clear understanding about the nature of the plea bargain, to avoid these misunderstandings. The misunderstanding often results from an incomplete understanding by the lawyers of the nature and scope of the agreement, e.g. what financial obligations are included in the agreement.

Usually with these plea agreements, in exchange for a guilty plea, the DA agrees to reduce the charge, i.e. a plea to a lesser included offense, or to move to dismiss other charges, or to make a particular sentencing recommendation to the court that is acceptable to the defendant. The misunderstanding occurs when, at sentencing, the defendant asks the court to impose a sentence different than the sentence agreed upon in the plea bargain. Did the prosecutor and the defendant agree that defendant was free to ask for a lesser sentence than the prosecutor agreed to recommend in exchange for the plea? Was the prosecutor expecting the defendant to ask for a lesser sentence than agreed upon in the plea bargain? Usually not.

Sometimes the plea is pursuant to ORS 135.432, the “plea agreement” or “plea contract” statute. When a plea is presented in this format, it means that the judge has been advised before the plea of the agreement, the reasons for it, and has told the lawyers he/she will follow the agreement. Lawyers involved in these agreements should read ORS 135.432 so they have a clear understanding of the process and the benefits of such a plea.

The question is: in exchange for the consideration granted by the prosecutor, e.g. charge reduction, dismissal of other charges, and/or a particular sentence recommendation, is the defendant agreeing to ask the judge to impose that sentence, or is the defendant reserving the right to seek a lesser sentence? Either approach is fine - but we should not be discovering that the prosecutor and the defendant have a different view of this at the time of sentencing.

Welcome to Judge Adrienne Nelson:

In February, Governor Kulongoski appointed Adrienne Nelson as a Circuit Court Judge, to replace Judge Sidney Galton, who retired. Judge Nelson came to us from Portland State University, where she was the Director of the Student Mediation and Legal Services Office. Before that position, Judge Nelson was in private practice in Portland with the Bennett Hartman firm, and previously was a public defender.