“The Walsh Protocol”: Judicial Duties When a Plea Agreement Is Ambiguous at Sentencing

Introduction

State v. Walsh, 373 Or 714 (2025), confronts a recurring but seldom-resolved problem: what must a trial judge do when, at the sentencing stage, the parties suddenly disagree about the meaning of a term in a previously-accepted plea agreement?

The respondent, James Clare Walsh IV, pleaded guilty to two child-sex offenses pursuant to a written agreement stipulating that “the state may argue for and the court may impose consecutive sentences.” Moments before sentencing, defense counsel claimed that—because the two crimes arose from a single uninterrupted course of conduct—ORS 137.123(5) required specific factual findings before consecutive sentences could lawfully be imposed. The State insisted that defendant’s stipulation waived the need for those findings. Faced with this impasse, the circuit court told counsel that, absent resolution, it would treat the plea as withdrawn and return the case to the trial docket. Defendant then withdrew his objection, the court imposed consecutive sentences, and the Court of Appeals later reversed.

The Oregon Supreme Court granted review to decide whether the trial court erred in the way it handled the disagreement and, in turn, whether the consecutive sentences could stand. The Court’s answer creates an important procedural blueprint—what this commentary calls “the Walsh Protocol.”

Summary of the Judgment

Writing for a unanimous en banc Court, Justice Bushong held:

• The plea agreement’s phrase “the court may impose consecutive sentences” is ambiguous. It can plausibly mean either (a) the court has authority to impose consecutive sentences without making ORS 137.123(5) findings (the State’s view) or (b) the court may do so only after making those findings (defendant’s view).
• When such an ambiguity surfaces at sentencing, the trial court’s first duty is to ensure that the defendant’s plea remains voluntary, knowing, and intelligent as required by ORS 135.390 and constitutional due process.
• In fulfilling that duty, the court may explore the parties’ understandings and, if necessary, inform them that the plea may be set aside and the case reset for trial—so long as the defendant is given a genuine choice.
• Here, after the court’s colloquy and the defendant’s consultation with counsel, the defendant affirmatively elected to withdraw his legal objection and proceed to sentencing with the understanding that the court could impose consecutive terms. Under those circumstances, the circuit court did not err, and the consecutive sentences stand.

The Supreme Court therefore reversed the Court of Appeals and reinstated the circuit-court judgment.

Analysis

a. Precedents Cited and Their Influence

• State v. Heisser, 350 Or 12 (2011) – The anchor precedent on interpreting plea agreements. Heisser treats plea agreements like contracts but cautions that constitutional and statutory rights may override ordinary contract principles. Walsh extends Heisser by addressing what happens when a term is ambiguous.
• Yogman v. Parrott, 325 Or 358 (1997) – Provides the standard Oregon contract methodology for resolving ambiguities (text, context, extrinsic evidence, maxims). Walsh acknowledges, but ultimately bypasses, Yogman’s third-stage maxims in favour of constitutional voluntariness analysis.
• Doyle v. City of Medford, 347 Or 564 (2010) & Friends of Columbia Gorge v. Columbia River, 346 Or 415 (2009) – Define the ordinary meaning of “may” versus “shall.” These cases support the Court’s observation that “may” ordinarily confers authority, not obligation—making the State’s interpretation plausible.
• Lyons v. Pearce (1985) and Dixon v. Gladden (1968) – Emphasize that guilty pleas must be voluntary, knowing, and intelligent. Walsh relies on this line of authority to justify the trial judge’s proactive role in clarifying ambiguity.
• State v. Ice, 346 Or 95 (2009) – Establishes that juries need not find aggravating facts for consecutive sentences under Oregon law; courts may make those findings. Walsh references Ice to explain that the parties could, in theory, stipulate to facts supporting consecutive sentences.
• ORS 135.390, 135.405, 135.432 – The statutory architecture for plea agreements; informs the Court’s analysis of the judge’s duties.

b. The Court’s Legal Reasoning

1. Identify the Ambiguity
   The critical language—“court may impose consecutive sentences”—does not mention ORS 137.123(5) findings. Because the phrase “may impose” could either (i) authorize imposition without findings or (ii) merely acknowledge the possibility of consecutive sentences if findings are later made, the clause is ambiguous.
2. Constitutional Overlay
   Even though plea agreements are interpreted via contract principles, the judge’s overarching duty is to ensure the plea’s voluntariness. When an ambiguity jeopardizes that voluntariness, the judge must halt the process and clarify.
3. Permissible Judicial Options
   The Court implicitly endorses a set of permissible steps—what we label the “Walsh Protocol”:
   • (a) Identify the ambiguity and place it on the record.
   • (b) Advise the parties that the agreement may be invalid absent shared understanding.
   • (c) Provide the defendant an opportunity to consult with counsel.
   • (d) Allow the parties either to (i) clarify/stipulate to a shared interpretation, (ii) renegotiate, or (iii) withdraw the plea and proceed to trial.
   The protocol preserves defendant autonomy while conserving judicial resources.
4. No Prejudice, No Reversible Error
   Because Walsh voluntarily chose option (i)—clarify and proceed—any earlier (arguable) misstatement by the judge about “no meeting of the minds” became moot, unpreserved, and immaterial.

c. Potential Impact

• Plea-Bargaining Practice: Prosecutors and defense counsel will likely draft plea agreements with greater precision—especially on sentencing stipulations—to avoid a Walsh scenario.
• Judicial Procedure: Trial judges now possess a Supreme-Court-endorsed roadmap for responding to late-stage ambiguity, reducing the risk of appellate reversal.
• Appellate Review: The decision signals that appellate courts will not rescue defendants who, after clarification and advice, affirmatively choose to proceed under an ambiguous term. Preservation of error remains paramount.
• Substantive Sentencing Law: Walsh does not alter ORS 137.123(5) itself but confirms that the parties may effectively stipulate to the facts necessary to satisfy (or bypass) the statute, so long as the defendant’s choice is voluntary and on the record.

Complex Concepts Simplified

• Consecutive vs. Concurrent Sentences: Consecutive sentences run one after the other; concurrent sentences run at the same time. ORS 137.123 generally requires special findings before sentences for crimes in a single episode can be stacked consecutively.
• Measure 11: An Oregon voter-enacted law imposing mandatory minimum prison terms for listed violent offenses. Here, the plea allowed Walsh to avoid Measure 11 on one count by pleading to a lesser-included offense.
• Plea-Agreement Types: A “contract plea” binds the court to an agreed sentence; a “recommendation plea” merely allows the parties to argue. Walsh’s plea was neither pure type—adding to its ambiguity.
• Waiver vs. Stipulation: A waiver relinquishes a right; a stipulation is an agreed fact. The Court reads “the court may impose” not as a bare waiver of statutory findings but as a shorthand factual stipulation that the required findings could be deemed satisfied.
• Meeting of the Minds: A contract term meaning common assent. Walsh clarifies that the deeper judicial concern is not metaphysical consensus but whether the plea remains voluntary, knowing, and intelligent.

Conclusion

State v. Walsh does not revolutionize Oregon’s law of plea agreements, but it fills a critical procedural gap. The Court’s holding crystallizes three teachings:

1. Plea agreements that appear straightforward can contain material ambiguities; counsel must draft with care.
2. When ambiguity surfaces, trial judges must pause sentencing, clarify the record, and ensure the defendant’s voluntariness—steps now canonized in the Walsh Protocol.
3. Once a defendant, after full advice, elects a clarified path forward, appellate re-litigation of the abandoned interpretation is foreclosed absent preserved claims of coercion or involuntariness.

In practical terms, Walsh reaffirms the judiciary’s gatekeeping role in protecting plea voluntariness while granting trial courts the flexibility to salvage, rather than scuttle, plea agreements that can be meaningfully clarified. The decision’s value lies less in the ultimate outcome for Mr. Walsh than in the durable guide it provides for Oregon courts confronting the next late-breaking dispute over a plea’s true meaning.