Arraignment and Pretrial Provisions

ORS 135.405
Plea discussions and plea agreements


In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415 (Criteria to be considered in plea discussions and plea agreements) and the prohibitions set forth in ORS 135.418 (Prohibited plea agreement provisions), the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.


The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for appointed counsel, has not retained counsel.


The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:


To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;


To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant’s conduct; or


To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.


Similarly situated defendants should be afforded equal plea agreement opportunities.


(a) A district attorney may provide a plea offer and agreed disposition recommendation to the defendant at the time of arraignment or first appearance of the defendant for a crime in open court under an early disposition program established under ORS 135.941 (Early disposition programs).


Unless extended by the court, a plea offer and agreed disposition recommendation made under paragraph (a) of this subsection expire upon completion of the arraignment. Except for good cause, a court may not extend a plea offer and agreed disposition recommendation under this paragraph for more than seven days for a misdemeanor or 21 days for a felony. [1973 c.836 §170; 2001 c.635 §10; 2001 c.962 §79; 2013 c.525 §2; 2017 c.650 §8; 2018 c.37 §5]

Notes of Decisions

District Attorney was without authority under this section to promise in plea negotiations that Board of Parole would treat crime as Subcategory 2 murder rather than Subcategory 1 murder. Rise v. Bd. of Parole, 304 Or 385, 745 P2d 1210 (1987)

Where prosecutor did not offer defendant same plea agreement as co-defendant and defendant was convicted for murder and robbery in first degree, legislative history of this statute demonstrates that district attorneys are not mandated to offer equal plea agreement opportunities to similarly situated defendants. State v. Buchholz, 97 Or App 221, 775 P2d 896 (1989) aff'd 309 Or 442, 788 P2d 998 (1990)

Where prosecutor improperly allowed victim's parents' wishes to control his decision not to enter into plea agreement and record did not reveal what prosecutor independently would have decided, case remanded to trial court for evidentiary hearing to determine how prosecutor would have exercised his judgment and discretion on basis of proper criteria and facts that existed at time he declined to enter into plea agreement. State v. McDonnell, 310 Or 98, 794 P2d 780 (1990); 313 Or 478, 837 P2d 941 (1992)

Record reflected ample justification for prosecutor to treat defendant differently than other individual with whom prosecutor negotiated plea agreement, considering defendant's role in commission of murders. State v. Guzek, 310 Or 299, 797 P2d 1031 (1990)

Defendant and codefendant were not "similarly situated" when defendant personally committed murders, defendant was charged with aggravated murder while codefendant was charged with felony murder, defendant had extensive criminal record but codefendant did not and state had number of witnesses who would testify about character and propensity of defendant but found no witness who would testify similarly about codefendant. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Prosecutor must disclose in plea negotiations or plea agreement that state reserves right to reprosecute defendant for death of victim in criminal assault if victim's death is reasonably foreseeable to prosecutor. State v. King, 361 Or 646, 398 P3d 336 (2017)

Law Review Citations

74 OLR 1365 (1995)


Last accessed
Jun. 26, 2021