Stipulating ‘Court May Impose’ Consecutive Sentences: Resolving Ambiguities in Oregon Plea Agreements

Introduction

In State of Oregon v. James Clare Walsh IV (373 Or 712, June 5, 2025), the Oregon Supreme Court addressed a novel and important question of how to interpret a plea agreement clause stipulating that the “court may impose” consecutive sentences. After pleading guilty to attempted first-degree unlawful sexual penetration (Count 1) and first-degree sexual abuse (Count 4), defendant and the State disagreed at sentencing on whether the trial court needed to make the factual findings required by ORS 137.123(5) before imposing consecutive terms. Defendant argued that consecutive sentences were legally unavailable absent those findings; the State contended that the defendant’s own stipulation had waived the requirement. When the court sensed an ambiguity, it offered the parties the choice of withdrawing the plea or clarifying their stipulation. Defendant elected to withdraw the legal objection, affirm his stipulation that the court could impose consecutive terms, and proceed to sentencing. The trial court then imposed a 105-month sentence on Count 1 consecutive to the mandatory 75-month sentence on Count 4. On appeal, the Court of Appeals reversed, holding that nothing in the plea agreement precluded defendant from pressing his statutory argument and that the parties had never reached a “meeting of the minds.” The Supreme Court granted review and reversed the Court of Appeals, affirming the trial court’s judgment.

Summary of the Judgment

The Supreme Court held that the plea-agreement clause stating that “the court may impose consecutive sentences” was ambiguous: it could be read either (a) as a bare acknowledgment of the court’s existing statutory power (subject to ORS 137.123 findings) or (b) as a stipulation that the court could impose consecutive sentences without those findings.
Faced with that ambiguity at the sentencing hearing, the trial court properly inquired, gave defendant the choice to press his statutory objection or confirm his stipulation, and warned that unresolved ambiguity would dissolve the plea and return the case to trial.
Defendant chose to withdraw the statutory objection, reaffirm his stipulation, and proceed. That effectively clarified the agreement and mooted any challenge to the trial court’s earlier hypothetical “no meeting of the minds” remark.
Because defendant did not object when sentencing proceeded under the clarified stipulation, any error in the trial court’s preliminary remarks was immaterial and unpreserved. The trial court did not err in imposing consecutive sentences.
The decision of the Court of Appeals is reversed, and the circuit-court judgment affirming defendant’s sentence is reinstated.

Analysis

Precedents Cited

1. State v. Heisser, 350 Or 12 (2011) – Established that plea agreements are analyzed under contract principles “generally (but not invariably)” and that the court must ensure any plea is “voluntary and intelligently made.”

2. McDonnell v. Sawyer, 310 Or 98 (1990) – Traced Oregon’s statutory framework for plea negotiations to the 1973 enactment authorizing prosecutors to negotiate concessions in exchange for pleas under ORS 135.405.

3. Doyle v. City of Medford, 347 Or 564 (2010) – Distinguished between “shall” (mandatory) and “may” (permissive or empowering) in statutory construction.

4. Lyons v. Pearce, 298 Or 554 (1985) & Dixon v. Gladden, 250 Or 580 (1968) – Emphasized that guilty pleas must be “voluntary and made with knowledge of the consequences.”

Legal Reasoning

• The Heisser framework: A plea agreement is first examined for mutual assent to its terms. If an agreement is unambiguous, the court enforces exactly what the parties stipulated. If a dispute arises over meaning, the court must clarify before accepting or enforcing the plea.

• Ambiguity of “may impose”: Because “may” can mean either “has authority to” or “elects to permit,” the clause “the court may impose consecutive sentences” could be read two ways. Under one reading, it simply acknowledges the court’s statutory power—subject to ORS 137.123 findings. Under the other, it operates as a stipulation that the court need not make those findings.

• Plea colloquy and clarification: The trial court’s responsibility under ORS 135.390(1) to ensure a plea is “voluntary and intelligently made” justified its on-the-record inquiry when counsel voiced conflicting interpretations. By offering the options to litigate the statutory argument (and risk voiding the plea) or confirm the stipulation, the court gave defendant the opportunity to make an informed choice.

• Waiver of objection: Defendant’s on-the-record election to “withdraw the legal argument” and proceed under the stipulation cured the ambiguity. After that election, any prior ambiguity or court remark about lacking a “meeting of the minds” became immaterial. Because defendant did not object at sentencing, he may not pursue that issue on appeal.

Impact

This decision clarifies how Oregon trial courts should handle ambiguous stipulations in plea agreements—especially clauses using permissive language like “may impose.”
Plea-agreement drafters (prosecutors and defense counsel alike) must be precise when framing dispositional stipulations; open-ended language may invite a court colloquy to resolve conflicting interpretations.
Defendants must understand that electing not to pursue a legal objection at sentencing may constitute a binding waiver, foreclosing later challenges on appeal.
The ruling reinforces the trial court’s duty under ORS 135.390 to confirm that pleas remain “voluntary and intelligently made” through sentencing.
Future appellate review will likely emphasize whether a defendant knowingly chose between competing interpretations and whether any court error at plea or sentencing was preserved or rendered immaterial by a subsequent election.

Complex Concepts Simplified

1. ORS 137.123(4)–(5)
When multiple convictions arise from “a continuous and uninterrupted course of conduct,” the default is concurrent sentences. Consecutive terms require the court to find, at least, that the additional offense (a) showed a willingness to commit more than one crime, or (b) caused greater or different harm. Those findings must be recorded on the record before imposing consecutive sentences.

2. “May” vs. “Shall”
In legal drafting, “shall” generally imposes a mandatory duty, while “may” grants authority or permission. Here, “the court may impose” can be read either way—merely noting the court’s power (with findings) or as an agreement waiving the findings requirement.

3. Plea Agreement vs. Contract
Plea agreements borrow contract-law concepts (offer, acceptance, mutual assent) but are also governed by statutes (ORS 135.390–135.418) and by the constitutional requirement that guilty pleas be knowing and voluntary.

4. Waiver vs. Stipulation
A waiver is a voluntary relinquishment of a known right. A stipulation is an agreed-upon fact or legal consequence. By stipulating that “the court may impose” consecutive sentences, defendant effectively agreed to a factual predicate (or waived the need for one) rather than merely conceding the court’s general sentencing authority.

Conclusion

State v. Walsh establishes that when a plea agreement’s stipulation employs permissive language—“the court may impose consecutive sentences”—a trial judge encountering conflicting readings must ensure a defendant’s plea remains voluntary and intelligent by clarifying which interpretation governs. If the defendant then elects one interpretation on the record and proceeds without objection, any earlier ambiguity does not invalidate the plea or subsequent sentence. This decision underscores the importance of clear drafting in plea agreements, the trial court’s duty to secure informed consent at every step, and the binding effect of an on-the-record election that forecloses appellate challenges.