646	                                July 13, 2017	                          No. 37
37
State v. King                                                                              361
                                                                                     July 13,   Or
                                                                                              2017




                       IN THE SUPREME COURT OF THE
                             STATE OF OREGON

                              STATE OF OREGON,
                                   Appellant,
                                       v.
                            TREVIN MICHAEL KING,
                                  Respondent.
                           (CC 15CR22123; SC S063810)

  On direct appeal of the order of dismissal of the Linn
County Circuit Court, under ORS 138.060(2)(b).
                David E. Delsman, Judge.
                Argued and submitted June 15, 2016.
   Jennifer S. Lloyd, Assistant Attorney General, Salem,
argued the cause and filed the briefs for appellant. Also on
the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Mary M. Reese, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
brief for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender.
   Before Balmer, Chief Justice, and Kistler, Walters, Landau,
Nakamoto, and Flynn, Justices, and Brewer, Senior Justice
pro tempore.*
                NAKAMOTO, J.
                The judgment of the circuit court is affirmed.




______________
	    *  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case. Duncan, J., did not participate in the consideration or decision of this
case.
Cite as 361 Or 646 (2017)	647


     Case Summary: Pursuant to a plea agreement, defendant pleaded guilty to
second-degree assault and no contest to first-degree robbery for beating the vic-
tim and stealing his bicycle. The victim later died from his injuries, and the state
filed felony murder and first-degree manslaughter charges based on his death.
Defendant moved pretrial to dismiss the indictment, arguing that the homicide
charges violated the plea agreement. The plea agreement did not specifically
address the consequences if the victim were to subsequently die, nor did the
parties discuss that contingency. As a matter of first impression, the trial court
concluded that the state’s failure to reserve the right to bring further charges
against defendant precluded it from later doing so. The state filed a direct appeal
with the Oregon Supreme Court under ORS 186.060(2). Held: (1) in the absence
of a plea agreement or statutory rule specifically addressing the issue, a contrac-
tual default rule applies: When it is reasonably foreseeable to the prosecutor that
the victim may die, and the state intends to reserve the right to reprosecute a
defendant in the event of a victim’s death, it must disclose its intention as part of
the plea deal. The judgment of the circuit court is affirmed
648	                                            State v. King

	       NAKAMOTO, J.
	        Defendant pleaded guilty to second-degree assault
and no contest to first-degree robbery in accordance with an
oral plea agreement reached with the state. Six months later,
the victim died because of his injuries from the assault, and
then the state began another prosecution against defendant:
for felony murder and manslaughter. As a consequence of the
plea agreement, the trial court granted defendant’s pretrial
motion to dismiss the indictment and dismissed the case.
The state appeals the dismissal order. See ORS 138.060(2)(b)
(state may appeal order dismissing accusatory instrument;
if murder is charged, appeal is to this court).
	        As this court observed in State v. Heisser, 350 Or
12, 23, 249 P3d 113 (2011), principles of contract law gener-
ally inform the determination of whether a plea agreement
has been performed. However, contract principles that apply
in a commercial setting do not necessarily suffice for an
analysis of a plea agreement, because the rights of crimi-
nal defendants “not ordinarily found in contracts between
private parties * * * may override contractual principles.” Id.
This case presents an issue of first impression in Oregon
that lies at the confluence of the contractual incompleteness
of a plea agreement and the waiver of constitutional rights
by criminal defendants: whether the state may reprosecute
defendant for homicide when the state knew at the time of
defendant’s plea agreement that the victim could die; when
the potential for future prosecution was not a subject of plea
negotiations or of the plea agreement; and when defendant
relinquished trial-related constitutional rights and entered
pleas on non-homicide charges with the belief that the plea
agreement ended all prosecutions arising out of the crimi-
nal incident.
	        In seeking reinstatement of the indictment, the
state contends that, applying ordinary principles of con-
tract interpretation, the plea agreement poses no bar to the
state’s otherwise permissible prosecution of defendant for
homicide and that defendant assumed the risk of the vic-
tim’s death. Defendant rejoins that the contract principles
the state advances cannot be woodenly applied when a crim-
inal defendant relinquishes state and federal constitutional
Cite as 361 Or 646 (2017)	649

rights as part of a negotiated plea. He asserts, among other
arguments, that, to address the contingency of the victim’s
death, the trial court correctly recognized and applied a
default contractual term to the plea agreement to bar his
reprosecution for homicide.
	        As did the trial court, we conclude that a contrac-
tual default rule fills the gap in the plea agreement and pre-
vents defendant’s reprosecution. Accordingly, we affirm.
                    I. BACKGROUND
	        Although the parties disagree regarding the con-
tract and criminal law principles that should govern the
analysis, they agree that this court reviews the trial court’s
ruling for legal error. We agree and add that we will not dis-
turb the trial court’s factual findings if they are supported
by the record. E.g., Heisser, 350 Or at 25-28 (examining
under standard). We state the facts in accordance with that
standard of review.
A.  The Assault
	        One night in early August 2013, defendant and his
codefendant, Jimenez, were at a hospital in Lebanon, Oregon.
Defendant was 17 years old. He and Jimenez, an adult, were
intoxicated and disruptive. A security guard who followed
them out of the hospital heard defendant tell Jimenez that
his bicycle had been stolen and that he wanted to beat some-
one up. Several hours later, the security guard saw defen-
dant and Jimenez walking a bicycle near the hospital.
	        The next day, the victim was found lying in a park-
ing lot near the hospital. The victim’s bicycle was gone, but
defendant’s insurance card was found nearby. The police
then discovered that defendant was a runaway minor and
that he and Jimenez had been at the hospital. The police
saw the victim’s bicycle at Jimenez’s residence, and Jimenez
and defendant were arrested. Both of them made incrimi-
nating statements during interviews by the police.
	       The victim had multiple head injuries and was in
a coma in the hospital. In the days after the victim was
found, hospital personnel informed police that he was stable
but that there was a possibility that he could die from his
650	                                             State v. King

injuries. At the end of August, the victim was transported
to a specialty hospital in Portland for long-term acute care.
Although the victim regained consciousness several months
after his move, his brain injuries were so significant that
the right side of his body was paralyzed; he was incontinent;
and he no longer could eat or drink, walk, or communicate
with people normally. He remained bedridden at the long-
term care facility until his death.
B.  Defendant’s Plea Agreement and Codefendant’s Trial
	        In August 2013, the state charged defendant and
Jimenez with second-degree assault, ORS 163.175(1)(a)
(“intentionally or knowingly caus[ing] serious physical injury”
to the victim), and first-degree robbery, ORS 164.415(1)(c)
(robbery enhanced by infliction of serious physical injury to
the victim). In the fall of 2013 and early 2014, the parties
engaged in negotiations for a plea agreement. The parties
first attended a settlement conference with a circuit court
judge in October 2013. The issue of what would happen if
the victim died was not discussed. The prosecutor provided
a formal written plea offer to defendant and Jimenez, dated
the next day, which also was silent regarding that contin-
gency. In early January 2014, the parties had a second set-
tlement conference, but that did not result in an agreement.
Later in January, after the trial court denied defendant’s
motion in limine seeking merger of the assault and robbery
counts, defendant and the state arrived at a plea agreement.
The parties never discussed the possible death of the victim
and the potential for homicide charges if the victim were to
die.
	         The parties did not enter into a written agreement,
although defendant and his attorney signed a petition dated
January 28, 2014, to enter pleas to the charges. The prose-
cutor did not see the petition before defense counsel provided
it to the court at a “final resolution” pretrial conference held
that day. Among other things, the plea petition contained
the following items: First, it described the two counts of
the indictment, the maximum penalty for each crime, and
the plea that defendant would enter on each count. Second,
it recited various potential collateral consequences of con-
victions, such as the inability to own or possess firearms if
Cite as 361 Or 646 (2017)	651

defendant was convicted of a felony crime; “the imposition of
certain costs and fees in addition to any fines imposed”; the
possible violation or revocation of probation, parole, or post-
prison supervision he may have been serving; and the possi-
bility of consecutive sentences. Third, it warned that defen-
dant was giving up most of his rights to appeal, although it
stated that defendant was making a conditional plea that
reserved the right to appeal the denial of his motion in
limine regarding merger of the counts. Fourth, the petition
contained defendant’s representation that he understood
that he was “giving up” five enumerated rights related to a
trial (his “right to a speedy trial by jury,” his right to be rep-
resented at trial by an attorney, his “right to confront and
cross-examine witnesses called to testify” against him, his
“right to compel witnesses to come to court,” and his “right
to remain silent”) and his “legal status of being innocent
until proven guilty beyond a reasonable doubt.” And fifth,
it recited that “[n]o threats” had been made to defendant to
induce entry of the plea and “no promises” had been made
“except as may have been stated in open court.”
	       The petition did not touch on the condition of the
victim or what could happen if the victim were to die. Nor
were those topics raised at the pretrial conference when
defendant presented the petition to the court.
	        Defendant’s plea and sentencing hearing took place
in late February 2014. The terms of the oral plea agreement
between defendant and the state were stated on the record.
In exchange for his pleas, the state and defendant jointly rec-
ommended to the court that defendant be sentenced to serve
120 months in prison: 70 months for the assault count and
90 months for the robbery count, with 50 of those 90 months
to be served consecutively to (and 40 months to be served
concurrently with) the prison term for the assault. The state
also agreed that defendant could appeal the court’s ruling
that the convictions should not merge. Defendant pleaded
guilty to assault in the second degree and no contest to rob-
bery in the first degree. Neither the court nor counsel raised
the issue of what would happen if the victim died.
	      Before the court sentenced defendant for the assault
and robbery, the victim’s brother described the victim’s
652	                                                State v. King

severely diminished physical and mental condition and said
that family members questioned whether they had made the
right decision in directing doctors at the hospital “to fight
for [the victim’s] life.” The prosecutor also described the vic-
tim’s condition at the hearing:
   	 “He was in a coma for quite some time at the hospital[.]
   [H]e was ultimately sent to rehab. He’s still in a rehab cen-
   ter. While he’s probably not in a coma he certainly is * * *
   never going to be functioning in the manner that he ever
   was before. Who knows at this point. I mean it’s just a really
   long term process as to where he’s going to be headed.”
	        The court sentenced defendant to serve a total of
120 months in prison, accepting the parties’ recommenda-
tion for a partially concurrent sentence because of the nego-
tiated agreement and defendant’s youth. The court also
imposed two 36-month periods of post-prison supervision
and assessed felony fines.
	        Unlike defendant, Jimenez rejected the state’s plea
offer. He proceeded to trial with the same prosecutor several
months later, in May 2014.
	        At the trial, the state presented evidence concern-
ing the victim’s condition. The neurologist who had evalu-
ated the victim at the hospital testified about the victim’s
initial prognosis: the victim could have had a “substantial
risk of death.” The victim’s attending physician at the long-
term care facility also testified about the victim’s prognosis.
She recounted that she had told the victim’s family members
that, because of his conditions, such as being unable to swal-
low and move appropriately, the victim was “highly likely” to
develop other significant medical conditions and that, when
that happened, they should transition him to hospice care
and not attempt treatment given his overall poor prognosis.
	       Defendant also testified at the Jimenez trial, on
behalf of the defense. Although the record in this case does
not include a transcript of defendant’s trial testimony, it
does include the state’s closing argument. The prosecutor
urged the jury to reject defendant’s account that he had lied
during his police interview and his self-incriminating testi-
mony at trial that, as the prosecutor put it, “it was all me,
Cite as 361 Or 646 (2017)	653

[Jimenez] didn’t do anything.” She explained that defendant
had already accepted a plea deal and could testify without
consequences: Defendant “has already done his thing, he’s
not going to get into any more trouble, he knows that. So
why not protect [Jimenez].” The jury convicted Jimenez, and
he was sentenced to 160 months in prison for the assault
and the robbery.
C.  Homicide Charges and Defendant’s Motion to Dismiss
	       In August 2014—six months after defendant’s pleas
on the assault and robbery charges—the victim died. The
medical examiner determined that his death was the result
of complications from his head injuries during the assault.
	        The state then pursued homicide charges against
defendant and Jimenez. In 2015, a grand jury issued sep-
arate indictments against them. Each was charged with
murder, ORS 163.115, and manslaughter in the first degree,
ORS 163.118. Their cases were consolidated, and defendant
and Jimenez filed motions to dismiss. Defendant’s motion to
dismiss was based on two grounds: (1) protections against
former and double jeopardy barred the prosecution and (2)
the homicide charges violated the plea agreement. Only the
latter ground is at issue on appeal.
	        The trial court held an evidentiary hearing on
defendant’s motion to dismiss. The prosecutor who had han-
dled defendant’s plea agreement and the Jimenez trial was
the state’s primary witness. She testified that, when she ini-
tiated the prosecution of defendant in early August 2013,
she had information about the victim’s condition from law
enforcement. She knew then that the victim “was severely
injured” and “there was some question at that point” about
whether he was likely to live because of the severity of his
injuries. By the time of the indictment later in August, the
prosecutor had spoken with the victim’s family and knew
that his injuries were severe and there was “going to be
quite a bit of aftercare”; however, she did not know that the
victim would die. At the time of the first settlement confer-
ence, she was getting information from the victim’s father
and knew that the victim was still living but with limited
mobility and limited speech. She explained that what would
654	                                            State v. King

happen should the victim die was not discussed during the
prosecution of either of the codefendants. She also testified
that, at the time of defendant’s plea and sentencing hearing
and then later in the Jimenez proceedings, she “didn’t know
what was going to ultimately happen” to the victim or that
he was “likely to die within a finite period of time.”
	        The victim’s brother also testified for the state
regarding the victim’s health and medical status at various
stages in the case. He noted that the victim was conscious
but not speaking at the time of defendant’s sentencing. The
family was still hoping to see more improvement in his condi-
tion then; however, by the time of the Jimenez trial, the vic-
tim’s condition had come to a plateau. He further explained
that, in August 2014, his family decided to use hospice care
for the victim, and the victim died within three or four days.
	        Both the state and defendant introduced portions
of the transcript of the Jimenez trial as exhibits. The state
also introduced other documents concerning defendant’s and
Jimenez’s assault and robbery cases, including transcripts
and documents relating to defendant’s pleas.
D.  The Trial Court’s Ruling and Order of Dismissal
	         The trial court stated findings on the record. The
court found that the victim was “severely injured and that
the state knew at the time of the assault and at the time of
filing * * * charges that he could die—possibly die from his
injuries.” It also found that, when defendant pleaded guilty
and no contest to the assault and robbery charges pursuant
to the plea negotiations, the “plea agreement did not specif-
ically address whether [defendant] would be subject to fur-
ther prosecution if [the victim] later died.” There was “no
discussion during the course of the [Jimenez] trial whether
[defendant] would be offered immunity or anything else for
his testimony[.]” Defendant had testified at the Jimenez
trial “apparently in the reliance that this case was con-
cluded when he had entered his pleas and that he was not
subject to further prosecution.” In fact, “the prosecutor at
that time indicated that [defendant] had satisfied his obli-
gations to the state and that he was not at risk of further
prosecution.” The court further found that the victim died
Cite as 361 Or 646 (2017)	655

because of injuries he sustained in the 2013 assault and that
“it was reasonably foreseeable that [the victim] would die as
a result of the injuries he sustained in that assault.”
	        The court also issued its ruling on the motions from
the bench. Although it concluded that former and double
jeopardy did not bar the homicide prosecutions of defendant
and Jimenez, the court granted defendant’s motion based
on his arguments related to his plea agreement. The court
determined as a matter of law that, in circumstances like
these, the better practice was to follow the rule from other
states that had reviewed plea agreements that were silent
on what would happen if the victim later died. That rule
required dismissal because the state had failed to reserve
its right to bring further charges against defendant should
the victim die.
	        The court subsequently entered a written order dis-
missing the case that contained similar and additional find-
ings and legal conclusions. The court found that the “state
was aware at the time of the charges that [the victim] could
die as a result of his injuries”; during “plea negotiations,
the state did not specifically preserve the right to bring
more serious charges” against defendant; “defendant gave
up rights that may have resulted in his acquittal with the
belief that he was terminating this incident”; and defendant
“was not advised that his testimony could be used against
him in a future criminal matter.” The court explained that
defendant’s out-of-state authorities were persuasive and
that, because the victim’s death had been reasonably fore-
seeable at the time of the plea negotiations, the state was
obligated to affirmatively reserve the right to bring future
charges and to inform defendant that the agreement would
not preclude future prosecution. The state assigns error to
the order of dismissal.
                       II. ANALYSIS
	        On appeal, both parties point to the omission of any
mention in either the plea negotiations or the plea agreement
of the state’s possible reprosecution of defendant should the
victim die. Then, using different sets of legal principles, the
parties draw contradictory conclusions from that omission.
656	                                            State v. King

	        The state contends that, although it did not reserve
the right to prosecute defendant for murder and manslaugh-
ter, such a reservation is not necessary under Oregon law.
Its view is that it retained the right to prosecute defendant
absent an express agreement with him to the contrary. In
large part, the state’s argument depends on its normal dis-
cretion to prosecute a defendant for homicide long after the
causal event occurred and the absence of any statute or case
law banning such prosecution. The state also relies on prin-
ciples of contract interpretation found in Oregon’s common
law of contracts. According to the state, the onus was on
defendant and his legal counsel to recognize the risk of the
victim’s later death—and the subsequent possibility of a
homicide prosecution—during the negotiation and crafting
of the plea agreement and, concomitantly, to address those
risks in the plea agreement. Thus, in the state’s view, the
trial court erred by dismissing the indictment.

	        Defendant argues that the trial court’s ruling can
be explained and justified by reference to contract law,
coupled with due regard for the standards required for a
criminal defendant’s knowing and voluntary waiver of trial-
related constitutional rights. In particular, defendant views
the trial court’s ruling—that the state was precluded from
reprosecuting defendant unless it disclosed during plea
negotiations or in the plea agreement itself that it might
bring homicide charges should the victim die—as embody-
ing a default rule, as that term is understood in contract
law. When a court supplies a missing term based upon a
default rule, the implied contract term is based not upon
the actual intent of the parties but instead on a legal rule.
Peter Linzer, 6 Corbin on Contracts § 26.1, 400 (Joseph M.
Perillo rev ed 2010) (implied term based on a default rule
“may come directly from the law, regardless of the parties’
intent”). In this case, defendant urges this court to approve
a default rule that arises in the face of the parties’ silence
concerning the state’s reprosecution of a defendant should
the victim die: the state will bear the risk of the victim’s
death and cannot reprosecute the defendant for homicide.

	        For the reasons explained below, we conclude that,
in the absence of a statutory rule specifically addressing the
Cite as 361 Or 646 (2017)	657

issue, a contractual default rule or “gap-filler” is required
when (1) the victim’s death is reasonably foreseeable to the
prosecutor and (2) the plea agreement does not address the
subject of reprosecution in the event of the victim’s death
and arose from negotiations that also did not address that
subject. That default rule, which requires the state to dis-
close that it may reprosecute the defendant should the vic-
tim die, is derived both from contract law and from respect
for the criminal defendant’s bargain and waiver of trial-
related constitutional rights.
A.  Contract Omissions
	        We begin by identifying the salient principles of con-
tract law that apply to the plea agreement. That threshold
issue depends on the nature of the contract problem before
us, an issue that the parties dispute. We agree with defen-
dant that this case is best understood as one of contract
omission.
	        The state cites Yogman v. Parrott, 325 Or 358, 361,
363-64, 937 P2d 1019 (1997), to explain that a court first
examines the text of a disputed contract provision, and
then, if an ambiguity exists, considers extrinsic evidence to
determine the parties’ intent. The state then observes that
the plea agreement contained no prosecutorial promise—
either express or implied—to refrain from bringing homi-
cide charges if the victim died, and it did not otherwise refer
to the possibility of the victim’s death. And, in the memorial-
izing plea petition, defendant confirmed that the prosecutor
had made no promises (other than any stated in open court)
to induce the plea. Given those features—particularly the
omission of any term concerning the possibility of the vic-
tim’s death—the state reads the plea agreement as plainly
permitting it to reprosecute defendant for homicide.
	        But as defendant points out, the parties are not
arguing about the meaning of a word or phrase or the oper-
ation of unclear provisions in the plea agreement. Although
the state is correct that the plea agreement does not address
the victim’s death or defendant’s reprosecution, the princi-
ples of contract interpretation that the state cites would
neatly apply in the case of a contract term that has a disputed
meaning. As we have recognized before, Yogman provides
658	                                             State v. King

an analytical “framework for contract interpretation.” Peace
River Seed Co-Op v. Proseeds Marketing, Inc., 355 Or 44, 65,
322 P3d 531 (2014). That analytical framework works well
when the proper understanding of a contractual provision is
at issue. See Williams v. RJ Reynolds Tobacco Company, 351
Or 368, 379, 271 P3d 103 (2011) (citing Yogman and explain-
ing that, to “resolve a dispute over the meaning of a contrac-
tual provision, this court first considers the text of the dis-
puted provision in the context of the contract as a whole to
determine whether the disputed provision is ambiguous”);
James v. Clackamas County, 353 Or 431, 442, 299 P3d 526
(2013) (applying Yogman textual analysis after identifying
the “interpretive issue” in the case). Professor Farnsworth
explains that the contract problems in those types of cases
can be characterized as disputes over expression, because
of vagueness or ambiguity in the terms the parties used.
E. Allan Farnsworth, Disputes Over Omission in Contracts,
68 Colum L Rev 860, 860 (1968).
	        In contrast, as defendant argues, the contract prob-
lem in this case concerns the effect of a contract omission.
The parties’ oral contract omits any mention of the contin-
gency at issue, which the trial court found was reasonably
foreseeable: that the victim would die after the parties
entered into the plea agreement. Farnsworth describes that
kind of contract problem as a dispute over omission, that is,
a dispute over what the parties did not say and “the effect
of their contract on a situation for which they have failed to
provide.” Id. We agree with that characterization of the con-
tract issue.
B.  Contractual Default Rules Generally
	        When contracts are incomplete because the parties
have not bargained concerning a term that is essential to
determining their rights and obligations, so-called default
rules are sometimes employed by courts to supply the miss-
ing term. E. Allan Farnsworth, 2 Farnsworth on Contracts
§ 7.16, 346 (3d ed 2004) (the rules that are the source of
contract terms deemed to apply as a matter of law are com-
monly called default rules). In those instances, the parties’
silence functions as the equivalent of assent to a default rule.
See Farnsworth, 2 Farnsworth on Contracts § 7.16 at 351-52.
Cite as 361 Or 646 (2017)	659

One commentator describes the “default rule” approach in
contract omission cases by analogizing to word-processing
programs that have preset margins that might be changed:
   “A word-processing program that required us to set every
   variable needed to write a page of text would be more trou-
   ble than it was worth. Instead, all word-processing pro-
   grams provide default settings for such variables as mar-
   gins, type fonts, and line spacing and leave it to the user
   to change any of these default settings to better suit his or
   her purposes.”

Randy E. Barnett, The Sound of Silence: Default Rules and
Contractual Consent, 78 Va L Rev 821, 824 (1992). Thus, a
default rule is just that. Parties to a contract may expressly
agree on terms that are the subject of a default rule and
that are contrary to it. See Farnsworth, 2 Farnsworth on
Contracts § 7.16 at 346; Linzer, 6 Corbin on Contracts § 26.3
at 426.
	        As defendant points out, this court has imposed con-
tractual default rules before—albeit couched as “implied”
terms—to account for an omission in the contract. In
Browne & Co. v. John P. Sharkey Co., 58 Or 480, 482, 115
P 156 (1911), for example, when a contract was silent as to the
time of performance, this court applied a default rule that
performance must be completed within reasonable time. In
Kamin v. Kuhnau, 232 Or 139, 143-44, 374 P2d 912 (1962),
the plaintiff inventor paid the defendant to use his machine
shop to develop his ideas for a new garbage truck packer,
and the defendant subsequently manufactured a number of
the developed units for the plaintiff before announcing that
he would manufacture garbage truck bodies in competition
with the plaintiff. This court found an implied agreement
by the defendant not to appropriate the plaintiff’s prod-
uct ideas, regardless of whether the plaintiff could estab-
lish that the defendant had expressly agreed on that point,
“as a legal conclusion recognizing the need for ethical prac-
tices in the commercial world.” Id. at 152. Similarly, in
Perkins v. Standard Oil Co., 235 Or 7, 16-18, 383 P2d 107
(1963), this court imposed an “implied” condition of the con-
tract that restricted the defendant from soliciting plaintiff’s
customers.
660	                                                           State v. King

	         Default rules may be based on, among other things,
common practices and usages regularly observed in trans-
actions in particular areas and, as defendant notes, “basic
principles of justice.” See Farnsworth, 1 Farnsworth on
Contracts § 1.10 at 64. Courts determining what default
rule to apply, Farnsworth counsels, should not rely on “hypo-
thetical expectations or fictitious intentions, but [on] basic
principles of justice that guide a court in extrapolating from
the situations for which the parties provided to the one for
which they did not.” Farnsworth, 2 Farnsworth on Contracts
§ 7.16 at 351. In addition, a court may “consider the realities
of the negotiating and drafting processes and supply a term
that will put the burden of expression on the party that can
better cope with it because of bargaining power and draft-
ing skill.” Id. at 353.
C.  Assuming the Risk of the Victim’s Death
	         With that understanding of the contract problem
presented, we turn to what Oregon law should provide given
the contract omission in the plea agreement. In the state’s
view, because the plea agreement is silent, it may repros-
ecute defendant. We begin with the state’s two-pronged
argument that no contractual default rule is appropriate for
the omission. The state’s argument is based in part on con-
tract law and in part on Oregon statutes concerning plea
agreements.
	         In its reply brief, the state contends that Smith Tug
v. Columbia-Pac. Towing, 250 Or 612, 443 P2d 205 (1968),
provides the answer under Oregon’s common law of con-
tracts. Under the holding of Smith Tug, the state argues, if a
risk is foreseeable, then the absence of any contractual pro-
vision about the risk “gives rise to the inference that the risk
was assumed.” Id. at 643. The state observes, and defen-
dant does not disagree, that the state’s decision to prosecute
defendant for the victim’s death after the initial prosecution
for assault and robbery would violate neither statutory nor
constitutional jeopardy protections,1 and the state contends
	1
       See ORS 131.525(1)(d) (subsequent prosecution not barred for offense not
consummated when former prosecution began); Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Procedure Code, Final Draft
and Report, § 28, 22 (Nov 1972) (explaining that statute as permitting later pros-
ecution when harm occurs after prior prosecution for same criminal episode; for
Cite as 361 Or 646 (2017)	661

that the otherwise lawful prosecution of defendant should
not be barred by a contract omission. Although the state does
not expressly say so, its argument implies that defendant,
and not the state, assumed the risk of the victim’s death.
	        The state’s reliance on Smith Tug is unpersuasive,
for two reasons. First, as the state acknowledges, the trial
court determined, and the record reflects, that it was reason-
ably foreseeable to the state that the victim would die from
his injuries during the assault. There is no evidence that the
victim’s death was foreseeable to defendant and his coun-
sel, and the trial court made no parallel determination as
to the knowledge that defendant and his counsel possessed
about the victim. And because of that factual problem, the
state’s argument faces a second difficulty: because the vic-
tim’s death was foreseeable to the state, to the extent that
Smith Tug applies to the circumstances here, that case may
suggest that the state, not defendant, assumed the risk of
the victim’s death.2
	        In addition to its contract law argument, the state
also relies on two statutes. Citing ORS 135.405, the state
argues that silence in a plea agreement about future pros-
ecution is not a promise by the prosecutor to refrain from
future prosecution. That statute provides, in part:
    	 “(1)  In cases [meeting certain criteria], the district
    attorney may engage in plea discussions for the purpose of
    reaching a plea agreement.
    	   “* * * * *
example, when a defendant is prosecuted for reckless driving and the victim later
dies, subsequent negligent homicide prosecution is permitted); see also State v.
Farley, 301 Or 668, 672, 725 P2d 359 (1986) (explaining what constitutes prohib-
ited subsequent prosecution for “same offense” under Article I, section 12).
	2
       Smith Tug concerned whether the high bidder for a five-year lease of sub-
mersible land in the Columbia River from the state for the purpose of mooring
logs had submitted an invalid bid by adding a contingency—that the lease would
terminate if the bidder failed to obtain a permit to erect pilings for the moorage—
that did not substantially conform to the invitation for bids. 250 Or at 638-40. In
concluding that the variation was substantial and rejecting the bidder’s argu-
ment that its contingency was reasonable, this court explained that the contin-
gency was “so obvious and material” that the absence of the contingency from the
bid would reflect an assumption of the risk, probably explaining at least in part
why the other bidder, who had not included the contingency, had refused to bid
more than $2,900 for the lease term when the high bid was $75,000. 250 Or at
640-41, 643.
662	                                                State v. King

   	 “(3)  The district attorney in reaching a plea agree-
   ment may agree to, but is not limited to, one or more of the
   following, as required by the circumstances of the individ-
   ual case:
   	   “* * * * *
   	 “(c)  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.”
The state characterizes the phrase “refrain from bring-
ing potential charges” in paragraph (3)(c) as specifically
contemplating that a prosecutor may promise not to bring
future charges, but, if not, nothing precludes a later pros-
ecution based on new facts. The second statute identified
by the state provides that a defense attorney has a duty to
aid the client in reaching a decision concerning a potential
plea agreement, which in the state’s view cuts against the
argument that a default rule should favor defendants. See
ORS 135.425(2) (“To aid the defendant in reaching a deci-
sion, defense counsel, after appropriate investigation, shall
advise the defendant of the alternatives available and of
factors considered important by the defense counsel or the
defendant in reaching a decision.”).
	        We conclude that neither statute is dispositive. The
first, ORS 135.405, is one of the statutes that govern a dis-
trict attorney’s authority to conduct plea discussions with
a defendant. Rise v. Board of Parole, 304 Or 385, 390, 745
P2d 1210 (1987). As this court explained in Heisser, 350 Or
at 22, under the authority of ORS 135.405(3), as “part of a
plea agreement, the prosecutor may give concessions to the
defendant in exchange for a plea of guilty or no contest.” See
also Commentary to Criminal Law Revision Commission,
Proposed Criminal Procedure Code, Final Draft and Report
§ 263 at 158 (November 1972) (“Subsection (3) sets forth the
types of concessions that the district attorney may make in
reaching a plea agreement. Under paragraph (c) the district
attorney may agree * * * to refrain from bringing potential
charges against the defendant or a third person.” (Emphasis
in original.)).
	        We agree with the state that, by providing the dis-
trict attorney with the authority to make concessions, ORS
Cite as 361 Or 646 (2017)	663

135.405(3) plainly does not equate an agreement’s omis-
sion as to future prosecution with the district attorney’s
promise to refrain from future prosecution. However, at the
same time, the provision of authority to the district attor-
ney to make concessions to secure a plea agreement in ORS
135.405(3) plainly does not speak to whether a contractual
default rule may address an omission as to future prosecu-
tion if the victim later dies.
	        The legislative history of ORS 135.405 supports that
reading. In adopting section 263 of the proposed criminal
procedure code, which later was codified as ORS 135.405, see
Oregon Laws 1973, chapter 836, section 170, the Criminal
Law Revision Commission recognized that “the plea negoti-
ation process should be formally recognized and controlled.”
Commentary § 263 at 158. The commission observed that
the United States Supreme Court had described plea bar-
gaining as “an essential component of the administration
of justice,” leading “to prompt and largely final disposition
of most criminal cases.” Commentary § 263 at 159 (quoting
Santobello v. New York, 404 US 257, 260-61, 92 S Ct 495, 30
L Ed 2d 427 (1971)).
	        When drafting section 263, the commission took note
of recommendations contained in a then-recent law review
article addressing plea bargaining in Oregon. Commentary
§ 263 at 158. Those recommendations included promoting
public awareness and openness of plea bargaining; reducing
“the possibility of errors” and “defendant misunderstand-
ing”; in cases involving indigent defendants, minimizing
“the effect of financial pressures tempting the established
attorney to bargain quickly and the marginal attorney to
bargain not at all”; and uncovering “errors of an attorney.”
Id. at 158-59.
	        Overall, the legislative history indicates that section
263 was part of an effort to increase openness and fairness
in the plea bargaining process that included consideration of
the interests of indigent defendants in the criminal justice
system. That effort included other provisions instructing
trial courts to oversee pleas. See ORS 135.385(1) (address-
ing trial court’s obligation to determine that the defendant
understands the nature of the charge); ORS 135.390(1)
664	                                            State v. King

(addressing trial court’s obligation to determine that the
plea is voluntarily and intelligently made); ORS 135.395
(addressing trial court’s obligation to ensure that there is a
factual basis for the plea of guilty or no contest). We there-
fore reject the suggestion that ORS 135.405(3) effectively
functions as an implied statutory bar to the contractual
default rule that the trial court applied in this case.
	        As for the second statute the state cites, ORS
135.425(2), the state argues that responsibility for advis-
ing the defendant of the consequences of a plea agreement
rests not at all with the prosecutor, but with defense coun-
sel, as well as the trial court. If both the trial court and
defense counsel fail to recognize the potential for the vic-
tim’s death and the possibility that new homicide charges
could be asserted against the defendant as a consequence of
the death, then, according to the state, a defendant’s rem-
edy lies in post-conviction relief. Therefore, the state con-
cludes, a contractual default rule in favor of defendants is
inappropriate.
	         As a practical matter, if we were to accept the
state’s position, that ultimately would result in the defen-
dant bearing the consequences of the victim’s later death
in cases such as this one, despite the existence of post-
conviction relief actions, ORS 138.510 to 138.686. Although
ORS 135.425(2) sets out that defense counsel has a respon-
sibility to advise a defendant of “alternatives available and
of factors considered important by the defense counsel or the
defendant in reaching a decision” as to a plea agreement,
the state’s understanding of defense counsel’s role based
on that statute undermines the foundation for defendant’s
pleas and waiver of his rights in this case when the reality of
plea negotiations is considered. The state’s position assumes
that defense counsel has equal access to information about
the victim’s health and prognosis and possible intentions of
the prosecutor, yet defense counsel may not stand on the
same ground as the prosecutor.
	       In this case, for example, the record establishes that
the prosecutor had information about the victim’s serious
medical condition and possible death; there is no evidence
that defense counsel had the same information. Given that
Cite as 361 Or 646 (2017)	665

record, the state’s argument—that defendant has a remedy
in post-conviction proceedings for agreeing to enter pleas to
assault and robbery without knowing that potential reprose-
cution based on homicide charges was on the horizon—rings
hollow. It is difficult to see how defense counsel could be held
responsible for constitutionally inadequate representation of
his client and the consequences of a failure to advise defen-
dant of the contingent death of the victim and later prosecu-
tion when it was the prosecutor who knew that the victim’s
death was foreseeable.
	        We conclude that neither statute upon which the
state relies negates the possibility that a default contractual
rule should determine the effect of the plea agreement when
the parties did not address the later death of the victim, but
when that contingency was foreseeable to the state. And, as
noted above, Smith Tug does not assist the state, nor does it
supply a rule that takes into account the criminal law con-
text in which the plea agreement arose.
D.  Default Rule When the Victim’s Death is Reasonably
    Foreseeable to the Prosecutor
	         We now turn to defendant’s argument that we
should affirm the trial court’s judgment because that court
properly recognized and applied a contractual default rule
to fill the gap in the plea agreement.3 In defendant’s view,
the trial court properly applied a contractual default rule
that accounts for a defendant’s waiver of important trial
rights and protects a defendant’s constitutional rights in
entering pleas and agreeing to convictions pursuant to a
plea agreement.

	3
      Defendant also argues that the trial court’s ruling can be explained by,
and affirmed based on, an “implied-in-fact” contract term derived from contrac-
tual principles and the actual expectations of the parties in entering into the
plea agreement. See Card v. Stirnweis, 232 Or 123, 133-34, 137, 374 P2d 472
(1962) (minority shareholder’s option to purchase shares of majority shareholder
upon his death must be considered in light of the parties’ purpose, which was not
“put fully into writing,” to provide surviving shareholder ability to “prevent an
unsatisfactory heir or distributee from sharing with him in the future conduct
of the business”; thus, option agreement implicitly required survivor to be share-
holder at time he exercised option). However, the state argues that that argu-
ment is unpreserved, and we do not reach the “implied-in-fact” theory, because
we decide the case on defendant’s theory that a default legal rule applies in the
circumstances.
666	                                            State v. King

	        We agree, in light of the constitutional rights that
a defendant gives up when entering into a plea agreement
and the requirement that the defendant waive those rights
knowingly, the knowledge that the prosecutor possessed
that made the victim’s death reasonably foreseeable to her,
the necessity of allocating the risk, and the certainty that
the default rule promotes. We approve a default rule that
places the burden on the state—when it is reasonably fore-
seeable to the prosecutor that the victim may die and the
state intends to reserve the right to reprosecute a defendant
for homicide in the event of the victim’s death—to disclose
its intention to the defendant as part of the plea deal, either
expressly during negotiations or, preferably, as a term of the
plea agreement itself.
	        Principles of criminal law are important to our con-
clusion. As we observed at the outset, a criminal defendant’s
rights—not ordinarily present in a commercial contract
setting—must inform the analysis and implementation of
a plea agreement. Heisser, 350 Or at 23. When, as here, a
criminal defendant enters pleas of guilty and no contest to
charges in accordance with a plea agreement and is con-
victed, his or her pleas implicate state constitutional rights,
see Article I, sections 11 and 12, of the Oregon Constitution,
and rights under the Fifth and Sixth Amendments to the
federal constitution. A criminal defendant entering such
pleas waives the constitutional rights to a jury trial, to con-
front accusers, and to assert the privilege against compul-
sory self-incrimination. Lyons v. Pearce, 298 Or 554, 559,
694 P2d 969 (1985); McCarthy v. United States, 394 US 459,
466, 89 S Ct 1166, 22 L Ed 2d 418 (1969), superseded by rule
on other grounds, see, e.g., United States v. Cross, 57 F3d
588, 591 (7th Cir), cert den, 516 US 955 (1995) (describing
change to Fed R Crim P 11); see also ORS 135.385(2) (the
court must inform the defendant that a plea involves waiv-
ing those rights). And defendants waiving their constitu-
tional rights must understand the rights being waived and
must do so free from coercion. Lyons, 298 Or at 560; see also
Dixon v. Gladden, 250 Or 580, 584, 444 P2d 11 (1968) (a valid
guilty plea is “entirely voluntarily” and made by a defen-
dant who is “competent to know the consequences” and is not
“induced by fear, misapprehension, persuasion, promises,
Cite as 361 Or 646 (2017)	667

inadvertence, or ignorance” (quoting Huffman v. Alexander,
197 Or 283, 251 P2d 87, 253 P2d 289 (1953))); ORS 135.390(1)
(a court shall not accept a plea of guilty or no contest unless
“the plea is voluntary and intelligently made”).
	        We agree with defendant that the contractual
default rule is grounded not only on contract law concerning
omissions in agreements but also on the requirement that
he knowingly waive his constitutional rights and on a due
process right to enforce his plea agreement. See Santobello,
404 US at 262 (holding that, “when a plea rests in any sig-
nificant degree on a promise or agreement of the prosecu-
tor, so that it can be said to be part of the inducement or
consideration, such a promise must be fulfilled”); Puckett v.
United States, 556 US 129, 137, 129 S Ct 1423, 173 L Ed 2d
266 (2009) (when “a defendant agrees to a plea bargain, the
Government takes on certain obligations[,]” and if they are
not met, “the defendant is entitled to seek a remedy”). A valid
plea agreement “presuppose[s] fairness in securing agree-
ment between an accused and a prosecutor.” Santobello, 404
US at 261.
	        We also note that courts in other jurisdictions have
reached the same outcome on similar facts, based in large
part on the importance of a prosecutor’s plainly stated inten-
tions regarding future prosecution, to ensure that a defen-
dant is aware of the actual value of those promises and his
or her own concessions and waivers of trial-related rights.
For example, in State v. Dye, 127 Ohio St 3d 357, 358, 939
NE2d 1217, 1219 (2010), the defendant struck a boy with
his truck, which he was driving while intoxicated and with
a suspended driver’s license. The boy was severely injured,
and Dye was charged with, and pleaded guilty to, aggra-
vated vehicular assault and driving under the influence. Id.
The state did not reserve a right to file additional charges
should the boy die, but the boy later died from complications
of his injuries. Id. at 358-59, 939 NE2d at 1220. The Ohio
Supreme Court explained that its own prior case, State v.
Carpenter, 68 Ohio St 3d 59, 623 NE2d 66 (1993), reh’g den,
68 Ohio St 3d 1448, 626 NE2d 689, cert den, 513 US 1236
(1994), and cases from other states, underscore that “effect
must be given to the intention of the state and the defen-
dant in their plea bargain, and courts should enforce what
668	                                                          State v. King

they perceive to be the terms of the original plea agree-
ment.” Dye, 127 Ohio St 3d at 362, 939 NE2d at 1222. The
court concluded that, “without an expressed reservation by
the state of the right to prosecute for any later homicide
charge, Dye had a reasonable expectation that his plea of
guilty would end criminal prosecution based on this inci-
dent” and that requiring the state to express its reservation
“places no unreasonable burden on prosecutors and ensures
that defendants are fully aware of the consequences of their
guilty pleas.” Id. at 363, 939 NE2d at 1223. See also State v.
Rivers, 283 Conn 713, 726, 931 A2d 185, 193 (2007) (terms
of plea agreements should be stated clearly and unambig-
uously, so that defendant knows what is expected from
him and what to expect in return); State v. Thomas, 61 NJ
314, 323, 294 A2d 57, 62 (1972) (“we are convinced that the
defendant anticipated that by pleading guilty to atrocious
assault and battery, and then serving whatever sentence
might be imposed, he was terminating the incident,” that
“this expectation was entirely reasonable and justified,”
and that “in pressing the presently pending murder charge,
the State is doing violence to its agreement, and is seeking
to deprive the defendant of something for which he legiti-
mately bargained”). Courts in other jurisdictions have also
relied, in part, on Santobello to caution that disposition of
charges by plea bargain must be grounded in essential fair-
ness, Thomas, 61 NJ at 322-23, 294 A2d at 61-62, and “must
be attended by safeguards to insure the defendant what is
reasonably due in the circumstances.” Carpenter, 68 Ohio St
3d at 61, 623 NE2d at 68.
	        To be clear, this is not a case in which defendant
seeks to undo or rescind the plea agreement based on misap-
prehension of or lack of voluntary assent to its terms. Rather,
defendant ultimately seeks to enforce the plea agreement as
he understood it. Through the plea agreement in this case,
defendant gave up his trial-related constitutional rights and
agreed to serve a lengthy, 120-month term in prison. He did
so, the trial court found, “with the belief that he was ter-
minating this incident” and any future prosecution.4 When,
	4
       Defendant received two benefits from his negotiated agreement—a firm sen-
tence and the ability to appeal a merger issue. Both, defendant notes, are “mean-
ingless if the state is allowed to proceed on manslaughter and felony murder
Cite as 361 Or 646 (2017)	669

at the time of the plea agreement, the victim’s death was
reasonably foreseeable to the state, then putting the burden
of expression on the state to disclose the risk of the victim’s
death and its reservation of the right to reprosecute in that
event provides a reasonable safeguard for defendants waiv-
ing constitutional rights and creates certainty concerning
who bears the risk. In this case, the prosecutor was aware
of facts concerning the victim’s health through the prose-
cutor’s relationship with the victim’s family, the police, and
the victim’s medical providers, who testified for the state.
In accordance with the trial court’s conclusion, the victim’s
death was reasonably foreseeable to the prosecutor.
	         As the United States Supreme Court has more
recently stated in regard to plea agreements, “the reality
[is] that criminal justice today is for the most part a system
of pleas, not a system of trials.” Lafler v. Cooper, 566 US 156,
170, 132 S Ct 1376, 1388, 183 L Ed 2d 398 (2012). This court
has recognized that “plea agreements are crucial to the
proper functioning of the criminal justice system.” Heisser,
350 Or at 21.
	        In such a system of pleas, prosecutors have an incen-
tive to cooperate in ensuring that defendants have access to
basic information that would satisfy the requirement that
they intelligently enter a plea agreement and waive their
rights: the reliability of the plea agreement, because the
defendant understood it and knowingly and intelligently

charges.” The detriment to him flowing from the plea agreement increased with
the homicide charges, he explains, because “his confession to assault has now
become a virtual confession to manslaughter” and an admission of an element
of first-degree robbery, which in turn is an element of felony murder, as well.
Moreover, defendant adds, after the plea negotiations, he further exposed him-
self by testifying at codefendant’s trial, taking full responsibility for the assault,
without understanding that his testimony could be used against him in a future
prosecution. Although it may not always be the case, as defendant argues, that,
when the prosecutor “does not mention potential additional charges during plea
negotiations, a defendant may reasonably expect that the state is satisfied with
the charges currently pending against defendant and will not file additional
charges after he pleads guilty or no contest,” the plea agreement in this case
provides a benefit to defendant only if he were not reprosecuted for homicide if
the victim died. See State v. Lordan, 116 NH 479, 481, 363 A2d 201, 203 (1976)
(“The submission and acceptance of the defendant’s pleas to the first three indict-
ments must have contemplated that no further charges would be brought, for the
defendant by his pleas deprived himself of any meaningful defense to the present
charges.”).
670	                                                           State v. King

accepted it. Among defense counsel, the court, and the pros-
ecutor in this case, it was the prosecutor who was in the best
position to foresee and predict that the victim could die, and
it was the prosecutor who would likely reprosecute defen-
dant for homicide. The default rule we approve in this case
encourages the prosecutor to disclose that risk and poten-
tial reprosecution. The burden of the default rule on the
state is not onerous, as counsel for the state acknowledged
at oral argument. Indeed, an example of a plea agreement
with a reservation of the right to reprosecute for homicide if
the victim were to die can be found in State v. Kephart, 320
Or 433, 437, 887 P2d 774 (1994), superseded by statute on
other grounds as stated in State v. Albrich, 157 Or App 64,
66-67, 969 P2d 1033 (1998).5 Accordingly, we affirm the trial
court’s dismissal of the case.
	          The judgment of the circuit court is affirmed.




	5
        The written plea agreement in that case included the following provision:
    	     “The State agrees not to file other charges concerning criminal behavior
    concerning [the victims] with the following exception. This agreement does not
    prohibit the State of Oregon from charging the defendant with Aggravated
    Murder, Murder, or any other degree of criminal homicide should [one of the
    victims] die from injuries suffered * * * from conduct of the defendant. This
    agreement does not limit the Court’s right to sentence the defendant to any
    term authorized by statute in the event that charges are filed against the
    defendant for the death of [one of the victims]. This agreement does not limit
    the right to the defendant to raise any appropriate legal challenges to the
    filing of any degree of criminal homicide for the death of [the victim].”
320 Or at 437 (emphasis in original).
