Background
Dammien Charles Fowler pleaded guilty in Clackamas County Circuit Court to attempted first-degree robbery and unlawful use of a weapon. His plea agreement stipulated individual sentence lengths for each count but did not fix a single agreed total sentence: the state retained the right to argue for 20 months of the Count 4 sentence to run consecutively (yielding 90 months total), while Fowler retained the right to argue for full concurrency (yielding 70 months total). The trial court ultimately imposed 130 months — 40 months more than the district attorney’s recommended sentence — without first advising Fowler or offering him a chance to withdraw his plea.
Fowler raised no objection at sentencing. On appeal, he argued that the trial court violated ORS 135.390(5)(b), which requires the court to advise the parties and allow the defendant to withdraw a guilty plea before imposing a sentence that deviates from an “agreed disposition recommendation.” Because he did not preserve the issue below, the Court of Appeals reviewed only for plain error.
The Court’s Holding
The Court of Appeals affirmed the conviction, holding that Fowler could not establish plain error. The court reasoned that ORS 135.390(5) is triggered only when the parties have presented the court with a single “agreed disposition recommendation.” Here, the plea agreement expressly allowed each side to advocate for a different sentencing outcome — the state for consecutive terms, Fowler for concurrent terms — meaning no unified agreed recommendation existed. Because a condition precedent to the statute’s application was absent from the record, any error was neither obvious nor beyond reasonable dispute, and plain-error review could not be satisfied.
The court distinguished its earlier decision in State v. Craig, 337 Or App 38 (2024), where it had found reversible error under ORS 135.390(5)(b) because the parties in that case had jointly recommended probation — a true agreed disposition recommendation. Fowler’s agreement, by contrast, left the consecutive-versus-concurrent question open for adversarial argument, placing it outside the statute’s reach.
Key Takeaways
- ORS 135.390(5)(b)’s withdrawal-opportunity requirement applies only when the plea agreement contains a single, joint “agreed disposition recommendation”; agreements that preserve each party’s right to argue for a different sentence structure do not trigger the statute.
- A defendant who fails to object at sentencing must satisfy the demanding plain-error standard on appeal, requiring the alleged error to be obvious and beyond reasonable dispute on the face of the record.
- The court left open whether ORS 135.390(5) is further limited to the category of plea agreements governed by ORS 135.405(5), declining to reach that alternative ground for affirmance.
Why It Matters
This decision clarifies the boundary of a defendant’s statutory right to withdraw a guilty plea when the trial court rejects the parties’ sentencing agreement. Defense practitioners must ensure that plea agreements reflect a single, unified sentencing recommendation — not a range subject to further advocacy — if they want the protections of ORS 135.390(5)(b) to apply. Agreements that leave sentencing issues contested may fall outside the statute’s scope regardless of how significantly the court’s ultimate sentence exceeds either party’s position.
The ruling also underscores the critical importance of contemporaneous objections at sentencing. By failing to object, Fowler was confined to plain-error review, a standard he could not meet given the ambiguity in the record about whether the statute applied at all. Defense counsel handling Oregon guilty-plea cases should be prepared to invoke ORS 135.390(5)(b) on the record the moment a court signals it may deviate from any agreed sentencing term.