by Mark Wilson

 The Oregon Court of Appeals held that misinformation during plea negotiations about time-served credit constitutes ineffective assistance of trial counsel.

On September 9, 2011, the State of Oregon charged Omteme Moni Blayas Sanders with second-degree assault and five other offenses stemming from a single incident against his wife.

The case was dismissed on February 22, 2013, but Sanders was recharged for the same incident on March 14, 2013. Eleven days later, Sanders was charged with second-degree assault and three other offenses stemming from a second incident against his wife.

Sanders pleaded guilty to both second-degree assault charges in exchange for dismissal of all other charges. The agreement provided that Sanders would be sentenced to concurrent 70-month prison terms and receive 195 days of time-served credit.

Pursuant to ORS 137.370(2), however, Sanders was eligible to receive time-served credit on only related offenses. Given that Sanders’ offenses were not related, he was entitled to receive only 95 days of time-served credit.

Sanders filed a post-conviction relief (“PCR”) petition, claiming that trial counsel was ineffective by misadvising him that he would receive equal-time served credit on each conviction. He further alleged that this incorrect advice caused him to accept the plea deal.

The court denied relief even though it noted that the parties agreed that Sanders would receive equal-time served credit on each case. The court acknowledged that “not receiving equal credit for time served for both sentences could have been a decisive factor for petitioner.”

Nevertheless, it concluded that as a matter of law, neither the state nor federal constitution requires a defendant to “be precisely informed on the length of his sentence when the difference between petitioner’s actual and anticipated sentence represented ‘less than five (5) percent of the total time to which he was sentenced.’”

The Court of Appeals reversed, finding that “the post-conviction court did not make factual findings on whether petitioner was misinformed as to how credit for time served would be calculated or whether he was prejudiced.” The court held that “the level of specificity contemplated by the post-conviction court is required if petitioner’s decision to accept a plea offer rested on those specific terms, and counsel was aware of that fact and advised petitioner about it.”

Finding that the PCR “court’s ruling was based on its erroneous legal conclusion that counsel was never required to be as specific as petitioner requested in advising how time served would be calculated,” the court reversed and remanded for the PCR court “to determine whether petitioner was misinformed and, if so, whether he would have accepted the plea deal if he knew that he would not be credited equal time served for each concurrent sentence.” See: Sanders v. Brown, 300 Or App 84, _ P3d _ (Or App 2019).

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