Arraignment and Pretrial Provisions

ORS 135.385
Defendant to be advised by court

  • inquiry into immigration status prohibited


(1)

The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge.

(2)

The court shall inform the defendant:

(a)

That by a plea of guilty or no contest the defendant waives the right:

(A)

To trial by jury;

(B)

Of confrontation; and

(C)

Against self-incrimination.

(b)

Of the maximum possible sentence on the charge, including the maximum possible sentence from consecutive sentences.

(c)

When the offense charged is one for which a different or additional penalty is authorized by reason of the fact that the defendant may be adjudged a dangerous offender, that this fact may be established after a plea in the present action, thereby subjecting the defendant to different or additional penalty.

(d)

That if the defendant is not a citizen of the United States conviction of a crime may result, under the laws of the United States, in removal proceedings, deportation, exclusion from admission to the United States or denial of naturalization.

(e)

That if the defendant is entering a guilty plea pursuant to a plea offer and agreed disposition recommendation under ORS 135.405 (Plea discussions and plea agreements), the court will agree to impose sentence as provided in the agreed disposition recommendation.

(f)

That if the defendant enters a plea of guilty or no contest to an offense involving domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), and is convicted of the offense, federal law may prohibit the defendant from possessing, receiving, shipping or transporting any firearm or firearm ammunition and that the conviction may negatively affect the defendant’s ability to serve in the Armed Forces of the United States as defined in ORS 348.282 (Definitions for ORS 348.282 and 348.283) or to be employed in law enforcement.

(3)

At the time of the plea, including while informing the defendant under subsection (2)(d) of this section, the court may not inquire into the defendant’s immigration status or require the defendant to disclose the defendant’s immigration status.

(4)

After informing the defendant under subsection (2)(d) of this section, upon the defendant’s request, the court shall allow the defendant additional time to consider the decision to enter a plea of guilty or no contest. [1973 c.836 §167; 1979 c.118 §1; 2001 c.635 §12; 2007 c.220 §1; 2019 c.437 §1]
Note: The amendments to 135.385 (Defendant to be advised by court) by section 13, chapter 384, Oregon Laws 2019, become operative June 30, 2021. See section 28, chapter 384, Oregon Laws 2019. The text that is operative on and after June 30, 2021, is set forth for the user’s convenience.
135.385 (Defendant to be advised by court). (1) The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge.

(2)

The court shall inform the defendant:

(a)

That by a plea of guilty or no contest the defendant waives the right:

(A)

To trial by jury;

(B)

Of confrontation; and

(C)

Against self-incrimination.

(b)

Of the maximum possible sentence on the charge, including the maximum possible sentence from consecutive sentences.

(c)

When the offense charged is one for which a different or additional penalty is authorized by reason of the fact that the defendant may be adjudged a dangerous offender, that this fact may be established after a plea in the present action, thereby subjecting the defendant to different or additional penalty.

(d)

That if the defendant is not a citizen of the United States conviction of a crime may result, under the laws of the United States, in removal proceedings, deportation, exclusion from admission to the United States or denial of naturalization.

(e)

That if the defendant is entering a guilty plea pursuant to a plea offer and agreed disposition recommendation under ORS 135.405 (Plea discussions and plea agreements), the court will agree to impose sentence as provided in the agreed disposition recommendation.

(f)

That if the defendant enters a plea of guilty or no contest to an offense involving domestic violence, as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290), and is convicted of the offense, federal law may prohibit the defendant from possessing, receiving, shipping or transporting any firearm or firearm ammunition and that the conviction may negatively affect the defendant’s ability to serve in the Armed Forces of the United States as defined in ORS 366.931 (Roadside memorial signs) or to be employed in law enforcement.

(3)

At the time of the plea, including while informing the defendant under subsection (2)(d) of this section, the court may not inquire into the defendant’s immigration status or require the defendant to disclose the defendant’s immigration status.

(4)

After informing the defendant under subsection (2)(d) of this section, upon the defendant’s request, the court shall allow the defendant additional time to consider the decision to enter a plea of guilty or no contest.

Notes of Decisions

Failure to advise defendant that conviction could result in deportation or exclusion is harmless error where defendant 1) was represented by counsel, entered plea as result of plea agreement and did not raise issue at trial; or 2) appears in record of case not to be alien. State v. Collins, 51 Or App 651, 626 P2d 929 (1981); State v. Vickroy, 51 Or App 659, 626 P2d 932 (1981); State v. Frizell, 51 Or App 763, 627 P2d 21 (1981); Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

Where defendant has prior criminal history that would expose alien to deportation or exclusion, failure to instruct that deportation or exclusion is possible consequence of guilty plea by alien defendant is harmless error. State v. Frizell, 51 Or App 763, 627 P2d 21 (1981)

Court is not required to advise of collateral civil consequences of guilty plea, such as mandatory loss of driver license. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

Imposition of sentence not including jail time does not excuse failure to advise defendant of maximum possible sentence. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

This section requires court to address defendant personally to determine understanding of nature of charge, and statement to all in court room that, "the rest of you in custody should listen carefully because these rights will apply to you as well..." and making no mention of consequences of "no contest" plea fell short of statutory requirement. State v. Dawson, 57 Or App 420, 644 P2d 665 (1982)

Where noncitizen defendant has already been informed that conviction may result in deportation, court is not required to orally inform defendant of possibility before accepting guilty plea. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)

This section was intended to lead trial court through catechism that would insure that defendant's waiver of constitutional rights would be valid and supply basis for constitutionally valid plea of guilty. Stelts v. State, 299 Or 252, 701 P2d 1047 (1985)

Where juvenile is charged with and admits to act that if committed by adult would be crime resulting in possible confinement for five years and court's advice is insufficient regarding nature of charge and consequences of admission, child cannot be deemed to have made knowing waiver and juvenile court erred in not setting admission aside. State ex rel Juv. Dept. v. Clements, 95 Or App 640, 770 P2d 937 (1989)


Source

Last accessed
Jun. 26, 2021