
Filed:  March 27, 2003
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
	Plaintiff-Adverse Party,
	v.
ROBERT J. ORIANS,
	Defendant-Relator.
(CC 0104-32903; SC S49163)
	Original proceeding in mandamus.*
	Argued and submitted May 14, 2002.
	Stanley D. Gish, Portland, argued the cause and filed the
brief for defendant-relator.
	Kaye E. McDonald, Assistant Attorney General, Salem, argued
the cause and filed the brief for plaintiff-adverse party.  With
her on the brief were Hardy Myers, Attorney General, and Michael
D. Reynolds, Solicitor General.
	Before Carson, Chief Justice, and Gillette, Durham, Riggs,
De Muniz, and Balmer, Justices.**
	GILLETTE, J.
	Peremptory writ to issue.
	*On petition for a writ of mandamus from an order of
Multnomah County Circuit Court, Jean Kerr Maurer, Judge.
    **Leeson, J., resigned January 31, 2003, and did not
participate in the decision of this case.
		GILLETTE, J.
		In this mandamus proceeding, relator, a defendant in a
criminal proceeding, asks this court to compel the trial judge to
dismiss an indictment pursuant to a civil compromise under ORS
135.705, set out below.  Relator argues that the trial judge had
agreed that she would dismiss the indictment against him under
certain conditions and that he has complied with those
conditions.  Because the trial judge now refuses to dismiss the
indictment against relator, and because relator does not wish to
lose the benefit of his civil compromise with the victim, relator
seeks extraordinary relief in mandamus.  For the reasons set out
below, we conclude that the trial judge abused her discretion in
refusing to dismiss the indictment.  We therefore issue a
peremptory writ directing her to do so.
		Relator was indicted on five counts of theft.  A
different trial judge dismissed four of the charges, not
involving the same victim, pursuant to a civil compromise.  The
remaining count of the indictment concerned relator's alleged
theft from Umon (the victim) respecting the prospective purchase
of real estate.  Relator entered into a written civil compromise
agreement with the victim, paying him $12,500 and giving him a
note for an additional $3,000.  The victim signed the agreement.
The agreement on its face complied with ORS 135.705, which
provides that a trial court, in its discretion, may dismiss an
indictment "if the person injured acknowledges * * * that the
person has received satisfaction for the injury."  As noted,
relator then presented the agreement to the court and moved for
dismissal of the charge.  
		At the first hearing on relator's motion to dismiss,
the prosecutor told the judge that relator's case was one in
which the prosecutor "ordinarily * * * would vigorously oppose
any kind of civil compromise."  That said, however, the
prosecutor then offered what she styled as a "suggestion for the
[c]ourt * * * if the court [were] willing to entertain a civil
compromise."  The prosecutor outlined the alleged facts of
relator's theft from the victim.  The prosecutor pointed out that
the grand jury also had indicted relator for securities fraud (a
crime carrying a heavier penalty than the theft charge before the
trial court) and that relator faced trial on that securities
fraud charge the following month.
		The prosecutor went on to describe the victim as a
person "not * * * of substantial means."  For that reason, the
prosecutor asserted, the victim in this case suffered more severe
financial harm when relator took his money than did relator's
other, wealthier victims. (1)  Finally, the prosecutor recommended
that the court set the matter over for a period of 90 days, to
ensure that relator paid the victim the remaining $3,000 that
relator had promised to pay and, further, to ensure that relator
did not attempt to discharge his debt to the victim in
bankruptcy.  Relator's attorney told the court that relator would
"stipulate to the District Attorney's * * * 90-day deal." (2) 
		After the foregoing colloquy, the court told relator:

		"So, the good news * * * is that if you are able
to pay off [the victim] in toto, then I will go ahead
and dismiss this case.  I'll set it over for 90 days,
and that way the victim can be paid and you can be
assured of a dismissal."

(Emphasis added.)
Three months later, the court held a second hearing on
the motion to dismiss, by which time relator had paid the victim
the remaining $3,000.  However, the trial judge refused to
dismiss the theft charge because, by that time, another judge had 
dismissed, on statute of limitations grounds, the securities
fraud case that the prosecutor had described at the first
hearing.  Relator objected to the trial judge's refusal to
dismiss, arguing that the trial judge had "made a deal" to
dismiss the charge in 90 days if relator paid the victim. (3) 
Relator also argued that the judge incorrectly was assuming that
relator would have lost the securities fraud case, had the
district attorney succeeded in bringing it to trial.  The trial
judge responded that, if the securities fraud case had not been
dismissed, "at least there would have been a trial."  She
explained:

		"Had I been informed at the time of this matter
that there was a legal impediment to the securities
fraud case, it would have resulted in my declining to
compromise this case.
		"I was not made aware of that and, in fact, as I
sat here on the bench and was weighing whether it was
appropriate to dismiss this case, [the prosecutor]
stated to me that there was in fact another case
pending.  And I thought that the dismissal of this
case, therefore, would not be significant because this
is a class B felony, the securities fraud case was
significantly more important.  And I was made aware
that other individuals who were alleging fraud by
[relator] were in better financial health than was [the
victim].  That was the representation that was made to
me at the time of the hearing.
		"And as a result of that I felt that I needed to
do everything in my power to make [the victim] whole.  * * *"

		Relator then petitioned this court for an alternative
writ of mandamus.  This court issued the writ, and the present
proceeding ensued.
		We begin with an examination of the statutory scheme. 
ORS 135.703 to 135.709 authorize dismissal of criminal
prosecutions pursuant to a civil compromise.  ORS 135.703
provides, in part:

		"(1) When a defendant is charged with a crime * * * for which the person injured by the act
constituting the crime has a remedy by a civil action,
the crime may be compromised, as provided in ORS
135.705, [with certain exceptions not relevant to the
present case]."

ORS 135.705(1)(a) describes the authority to order a dismissal
pursuant to a compromise:

		"If the person injured acknowledges in writing, at
any time before trial on an accusatory instrument for
the crime, that the person has received satisfaction
for the injury, the court may, in its discretion, * * *
order the accusatory instrument dismissed.  The order
must be entered in the register."

(Emphasis added.)  Discharge by compromise is a bar to another
prosecution for the same crime.  ORS 135.707. 
		There is no debate in this case that the charge against
relator was one that could be compromised.  Neither is there any
question that the victim signed the appropriate form of writing
or that relator otherwise complied with the statute's procedural
elements.  What lies at the heart of the statute, however, is the
explicit grant of discretion to the trial court to accept (or not
to accept) the proposed compromise.  
		The statute states that "the court may, in its
discretion," accept the compromise.  (Emphasis added.)  That
grant of discretion is not limited in any explicit way, once the
parties satisfy the statutory formalities.  The trial court is
left to take into consideration virtually any factor that it
deems relevant (short of considerations such as race, religion,
or the like, which cannot be given decisional weight for
constitutional reasons).
		With the foregoing statutory scheme in mind, we
summarize the factual setting of the underlying case.  At the
first hearing, relator presented to the trial judge a proposed
civil compromise that the district attorney's office appeared to
be prepared to accept, provided that the compromise protected the
interests of the victim.  In the prosecutor's view, the
compromise as proposed did not protect those interests.  She
recommended two additional conditions, to which relator acceded. 
Because those conditions could not be met for a period of 90
days, a second hearing was necessary.  The question narrows down
to this:  Had the trial judge already exercised her discretion by
the end of the first hearing, with dismissal of the charging
instrument thereafter being a mere ministerial act, or had the
judge reserved her discretionary ruling until the second hearing?
In our view, the answer is that, under the narrow set
of facts presented here, the trial judge had exercised her
discretion at the first hearing when she promised to dismiss the
charging instrument.  Once she made that promise in that manner,
nothing remained to be done except to carry out the ministerial
act of signing the document that dismissed the indictment.  We do
not say, however, that the trial judge's promise denied her the
right to withdraw that promise later.  As we shall explain, there
may be circumstances that would permit a judge to do that.  But
doing so would be a further exercise of discretion, subject to
review for abuse.  And, in our view, the trial judge's refusal to
carry out the ministerial act of signing the dismissal in the
case below was not a permissible exercise of the discretion that
the civil compromise statute conferred on her.
		There are times when a judge gives his or her word so
directly that, absent unusual and unexpected subsequent
developments, the judge must be said to have exercised the
judge's power at the time that the judge makes the statement,
even before the judge signs a document memorializing that
promise.  We think that the case below is such a case.  The
judge's statement could not have been more direct.  The judge
promised to do a certain thing, subject only to the occurrence of
two events.  That was a promise that the judge in the ordinary
course reasonably must be expected to honor.
		We assume that there may be circumstances in which a
trial judge makes statements as unequivocal as those made in the
case below but still may decline to carry out the promise.  One
such circumstance might arise if it were shown at a later time
that the party to whom the judge had made the promise had
concealed some material fact from the judge.  Another such
circumstance might arise if a material fact arose after the
promise was made, if that fact undermined the basis for the
promise.  In the present case, for example, it could be argued
that, had relator been charged with additional, similar acts of
theft after the judge made her promise, she would have been
entitled to withdraw that promise. (4)  We further assume that
certain of such circumstances might so reflect on the fairness
and advisability of accepting a proffered civil compromise that a
trial judge would not be required to state those circumstances on
the record ahead of time to be able to rely on them later. (5)
	However, even with the foregoing reservations, it also
is true that there are many contingencies that might arise after
a judge has exercised his or her discretion by making a promise
to act in a certain way that will not justify the judge in
changing his or her mind.  In our view, and for the reasons that
follow, the case below is illustrative of that latter category.
	At the time of the initial hearing in the underlying
case, all parties and the judge were aware that relator faced
another charge.  All parties and the judge knew that that other
charge could not be compromised civilly.  All parties and the
judge therefore expected that the other charge would proceed.
	And the charge did "proceed."  It proceeded to one of
several possible outcomes in a criminal case, i.e., it proceeded
to dismissal.  That outcome may not have been as foreseeable as
either a conviction or an acquittal, but it was one reasonably
possible outcome. (6)  The problem here arises because, although
there were multiple possible outcomes, the trial judge may not
have been equally willing to have relator receive a civil
compromise, no matter which outcome occurred.  To state the
matter even more concretely:  The trial judge apparently intended
from the outset to withdraw her earlier discretionary ruling if
the other charge did not at least proceed to adjudication on the
merits.  We do not here suggest that such a condition, if
disclosed, would have exceeded the scope of the trial court's
discretion under ORS 135.705(1)(a).  That issue is not before us
and, as noted, the discretion conferred on the trial judge is
very broad.  But we do find it to be unreasonable for the trial
judge, at the second hearing, to have been unwilling to accept
only certain possible outcomes to the other charge, but not
others, without even voicing such a condition before the event.
	Put differently:  The trial judge exercised her
statutory discretion by promising to take a certain action when
two other events had occurred, as they ultimately did.  In so
doing, the trial judge was entitled to expect that many aspects
of the status quo ante would continue.  Among those aspects, the
judge was entitled to expect that the other, pending charge would
proceed to a conclusion.  But, as noted, the other charge did
proceed to a conclusion.  And, that charge having done so, it is
not reasonable for the trial judge now to act on the particular,
previously undisclosed reservation that she had respecting the
manner in which the other charge would conclude and, pursuant to
that reservation, further to exercise her discretion by refusing
now to honor the civil compromise.
	Based on the foregoing analysis, we conclude that the
trial judge's refusal to honor the civil compromise by dismissing
the indictment was an abuse of discretion.  The trial judge has
not identified any other legal basis that she claims justifies
her decision.  We therefore direct that a peremptory writ issue
directing the trial judge to dismiss the indictment.
	Peremptory writ to issue.




1. 	The prosecutor's description prompted the trial judge
to inquire about the source of the money that relator was using
to repay the victim.  The prosecutor said that she understood
that relator was borrowing it from a family member.

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2. 	In describing for the trial court the reasons for which
a civil compromise in the underlying case would be an appropriate
disposition, the prosecutor did not mention any factor that
suggested that the trial court should deny relator's motion.  

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3. 	The record does not reflect the prosecutor's position
on the motion to dismiss at the second hearing.  (The transcript
makes clear that a colloquy already had occurred before the court
went on the record.)  The prosecutor stated on the record only
that relator had paid the victim the balance of the debt and that
the securities fraud case had been dismissed on statute of
limitations grounds.

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4. 	At oral argument, counsel for relator agreed that such
circumstances could arise and probably would justify the judge's
refusal to act.

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5. 	Again, counsel for relator acknowledged at oral
argument that the judge need not always identify such
circumstances on the record ahead of time, although it would be
the better practice to do so.

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6. 	Nothing in this record suggests that counsel for
relator at the initial hearing concealed from the trial judge any
information concerning the possible dismissal of the other
charge.
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