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Erickson v. Municipal Court of City of Corvallis12/12/1984
COURT OF APPEALS OF OREGON
CA No. A30712
1984.OR.40180 ; 71 Or. App. 339; 692 P.2d 628
Filed.: December 12, 1984.
KATHLEEN ERICKSON, RESPONDENT,
v.
MUNICIPAL COURT JUDGE OF CITY OF CORVALLIS, APPELLANT
Appeal from Circuit Court, Benton County. Robert S. Gardner, Judge. No. 42403.
Richard D. Rodeman, City Attorney, Corvallis, argued the cause and filed the brief for appellant.
Theresa M. Welch, Philomath, argued the cause and filed the brief for respondent.
Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
Young
Defendant, a municipal court judge, appeals from a circuit court order issued in a habeas corpus proceeding commenced by plaintiff. The circuit court determined that defendant exceeded his statutory authority by requiring plaintiff to plead guilty to a charge of Driving Under the Influence of Intoxicants (DUII), ORS 487.540, in order to qualify for a diversion agreement under ORS 484.445-484.480 and in entering a conviction and sentence on the basis of plaintiff's guilty plea after she had failed to complete the agreement. The issue is whether, before the approval of a diversion petition filed pursuant to ORS 484.450, the trial court may require an applicant for a diversion agreement to enter a plea of "guilty" or "no contest." We conclude that that is beyond the authority of the trial court and affirm.
In April, 1982, petitioner was arrested for DUII. She appeared for arraignment in municipal court and petitioned for diversion. The petition was supported by two affidavits signed by plaintiff. One included statements relevant to ORS 484.450(4). The second contained an acknowledgement by plaintiff of the constitutional rights that she was voluntarily waiving by pleading "guilty" or "no contest" and her recognition of the maximum penalty that could be imposed. The affidavit concludes with her plea of guilty. A municipal court "judgment order" recites that "as a condition for granting the diversion petition, [plaintiff] was required to sign an affidavit in support of a guilty plea, and she did so sign."
In April, 1983, defendant found that plaintiff had failed to comply with the diversion agreement and it was terminated. On the basis of her guilty plea, plaintiff was convicted of DUII and sentenced. Plaintiff petitioned the circuit court for a writ of habeas corpus. A writ was issued, and the circuit court subsequently vacated the municipal court judgment order and set aside the plea.
A diversion agreement is an agreement between the trial court and a defendant charged with DUII. ORS
484.460(1). The trial court "shall stay * * * the offense proceeding pending completion of the agreement or its termination." ORS 484.460(2). On successful completion of a diversion agreement, a defendant may move the trial court for an order dismissing the charge with prejudice. ORS 484.470(1). Defendant argues that requiring a plea of guilty or no contest as a condition precedent to a diversion agreement is a permissible exercise of discretion consistent with the purposes of the diversion statutes.
ORS 484.445(1) provides:
"The court shall inform at arraignment a defendant charged with the offense of driving while under the influence of intoxicants as defined in ORS 487.540 or
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