Arellano-Sanchez v. Thrasher

No. 55 December 24, 2025 623

IN THE SUPREME COURT OF THE

STATE OF OREGON

JOSE RAFAEL ARELLANO-SANCHEZ,

Plaintiff,

v.

Charlotte THRASHER,

Superintendent,

Coffee Creek

Correctional Facility,

Defendant.

(SC S072470)

En Banc

Original proceeding in habeas corpus.

Argued and submitted December 18, 2025.

Theodore Erde-Wollheim, Metropolitan Public Defender,

Hillsboro, argued the cause and filed the petition, the memo-

randum in support of the petition, and the reply for plaintiff.

Paul L. Smith, Deputy Solicitor General, Salem, argued

the cause and filed the response to the petition for defendant.

Also on the brief were Dan Rayfield, Attorney General, and

Benjamin Gutman, Interim Deputy Attorney General.

GARRETT, J.

It is hereby ordered that plaintiff immediately be dis-

charged from his illegal imprisonment. Pursuant to ORAP

1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05

(3)(b), the State Court Administrator shall issue the appel-

late judgment immediately.

James, J. concurred and filed an opinion, in which

Bushong, J., joined.

624 Arellano-Sanchez v. Thrasher

Cite as 374 Or 623 (2025) 625

GARRETT, J.

Plaintiff has petitioned for a writ of habeas corpus,

requesting that this court exercise its original jurisdiction

and order his immediate release from prison. See Or Const,

Art VII (Amended), § 2 (“[T]he supreme court may, in its own

discretion, take original jurisdiction in * * * habeas corpus

proceedings.”).1 In August 2025, the Oregon Department

of Corrections (DOC) released plaintiff from a correctional

institution after recalculating his credit for time served and

determining that his projected release date had already

passed. Thereafter, DOC again recalculated plaintiff’s

credit for time served, “corrected” the calculation that had

resulted in plaintiff’s release, and set his projected release

for a date in 2027. Acting under color of ORS 144.350, which

authorizes DOC to issue an order for the arrest of a person

who has “[e]scaped from the supervision, custody or control

of the department,” DOC then issued an order for plaintiff’s

arrest and return to custody. Plaintiff was reincarcerated

pursuant to that order.2

For the reasons explained in this opinion, we con-

clude that, under the circumstances of this case, ORS

144.350 did not authorize DOC to issue the order for plain-

tiff’s arrest and return. Accordingly, because the cited

authority provides no basis for DOC’s action, we order that

plaintiff immediately be discharged from custody.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are procedural and uncontested.

In 2017, plaintiff was convicted of numerous crimes, includ-

ing first-degree robbery, second-degree assault, and unlaw-

ful use of a weapon. Appellate proceedings ensued on grounds

not pertinent to our resolution of this case. In 2022, follow-

ing a remand from the Court of Appeals, plaintiff pleaded

1

See also ORS 34.310 (providing that every person who is “imprisoned or

otherwise restrained of liberty,” with exceptions, “may prosecute a writ of habeas

corpus to inquire into the cause of such imprisonment or restraint, and if illegal,

to be delivered therefrom”).

2

Although DOC is the entity that released plaintiff and issued the order pur-

suant to which plaintiff was reincarcerated, defendant is Charlotte Thrasher, the

Superintendent of Coffee Creek Correctional Facility. Throughout this opinion,

individual state actors are referred to by name and collectively referred to as “the

state.”

626 Arellano-Sanchez v. Thrasher

guilty to the two counts that had been remanded to the trial

court. He was resentenced to a total term of incarceration

of 120 months. That term of incarceration was the result of

a 90-month sentence on one count and a 70-month sentence

on another count, of which 30 months were to be served

consecutively. The judgment ordered those sentences “with

credit for time served since [plaintiff’s] arrest on November

3, 2016,” and stated that “[plaintiff] shall serve the entire

120 months imposed by the Court.” DOC initially calculated

plaintiff’s projected release date to be in November 2026.

In 2025, we issued our decision in State ex rel Torres-

Lopez v. Fahrion, 373 Or 816, 572 P3d 1045 (Torres-Lopez

I), adh’d to as modified on recons, 374 Or 423, ___ P3d ___

(2025) (Torres-Lopez II). Torres-Lopez addressed the con-

struction of ORS 137.370(4), which provides:

“Unless the court expressly orders otherwise, a person

who is confined as the result of a sentence for a crime or

conduct that is not directly related to the crime for which

the sentence is imposed * * * shall not receive presentence

incarceration credit for the time served in jail toward ser-

vice of the term of confinement.”

In Torres-Lopez I, we concluded that, in light of a

2015 amendment, the statute gives trial courts “discretion

to order presentence incarceration credit that would other-

wise be denied by that subsection.” 373 Or at 827. Put sim-

ply, the 2015 amendment gave trial courts “the authority to

order what would, in effect, be double credit.” Id. at 837. We

reiterated that conclusion in Torres-Lopez II:

“Under the statute’s default rule, a person is not entitled

to credit for that time. But, under the statute’s exception,

a sentencing court can authorize credit for that time by

expressly ordering it[.]”

374 Or at 431-32. It was undisputed in Torres-Lopez that

the trial court “had expressly ordered that relator would in

effect receive ‘double credit’ ” under ORS 137.370(4). Id. at

425 n 1. For that reason, we had no reason to interpret the

“expressly orders otherwise” provision in ORS 137.370(4) or

“decide what a judgment must say” to reflect that a trial

Cite as 374 Or 623 (2025) 627

court had “expressly order[ed]” double credit within the

meaning of that statutory provision. Id.3

After we issued Torres-Lopez I, DOC undertook to

reexamine the sentencing judgments and projected release

dates for numerous adults in custody (AICs), including

plaintiff. According to the state, in plaintiff’s case, DOC’s

recalculation was based on its determination that the trial

court judgment expressly provided for plaintiff to receive

credit for time served on both counts pursuant to ORS

137.370(4). In other words, DOC concluded that the judg-

ment required it to count plaintiff’s time served against the

first sentence and then again against the other consecutive

sentence, “resulting in double credit for the same pre-judg-

ment time served.” Based on that recalculation, DOC deter-

mined that plaintiff’s projected release date was in the past.

Accordingly, in August 2025, DOC released plaintiff onto

post-prison supervision (PPS).

In early November, a district attorney in

Washington County filed a motion in the trial court, pursu-

ant to ORS 137.172, to correct the judgment of conviction to

state “that it is the intent of the Court that any credit under

ORS 137.370(4) for one or more consecutive sentences in this

judgment be applied a single time towards the total term of

incarceration imposed as a result of those consecutive sen-

tences.” See ORS 137.172(1) (“The trial court retains author-

ity after entry of judgment of conviction * * * to modify the

judgment, including the sentence, to correct any arithmetic

or clerical errors or to delete or modify any erroneous term

in the judgment. The court may correct the judgment either

on the motion of one of the parties or on the court’s own

motion after written notice to all of the parties.”). A hearing

on the motion was scheduled for November 24.

At or around the same time, according to the state,

DOC engaged in “additional deliberation” and “corrected”

3

It was also undisputed in Torres-Lopez that the sentences at issue in that

case were for crimes that were “not directly related” to the crimes for which a

sentence had been previously imposed, as required for ORS 137.370(4) to apply.

For that reason, we had no reason to interpret the “not directly related” provi-

sion in ORS 137.370(4). In addition, unlike this case, Torres-Lopez did not involve

consecutive sentences. We express no view at this time as to how those consider-

ations may bear on the underlying question of how plaintiff’s term of incarcera-

tion should be calculated.

628 Arellano-Sanchez v. Thrasher

its calculation of plaintiff’s credit for time served. In other

words, having already recalculated plaintiff’s release date

following the issuance of Torres-Lopez I, DOC changed

course a second time with respect to its calculation of credit

for time served. Based on its new recalculation, DOC deter-

mined that plaintiff still had time left to serve on his term

of incarceration, and it set plaintiff’s new projected release

date for February 2027.

On November 22—two days before the scheduled

hearing on the district attorney’s motion to correct the judg-

ment of conviction—DOC issued an “Order for Arrest and

Return of Prisoner,” which stated that plaintiff had “escaped

from custody or ha[d] not completed service of [his] term

of incarceration and is therefore a fugitive from justice and

subject to arrest and detention in accordance with [ORS]

144.350.”4 The order directed any “Sheriff, Peace Officer,

Parole Officer, or Corrections Officer” to take plaintiff “into

custody and have [plaintiff] detained until an agent of

[DOC] arrives and custody can be transferred to the agent.”

See ORS 144.360 (“Any order issued by the Department of

Corrections or other supervisory authority as authorized by

ORS 144.350 constitutes full authority for the arrest and

detention of the violator, and all the laws applicable to war-

rants of arrest shall apply to such orders.”).

Plaintiff appeared for the scheduled November 24

hearing in the trial court, where he was taken into custody

pursuant to DOC’s order. The district attorney’s motion to

correct the judgment was withdrawn on the ground that it

was moot.

On December 2, plaintiff filed his petition for a writ

of habeas corpus in this court, contending that he is unlaw-

fully incarcerated. According to plaintiff, his “incarceration

term has been served to completion under the correct appli-

cation of his [credit for time served] as expressly allowed”

in the judgment. In other words, plaintiff’s position is that

DOC’s decision to release him from prison in August was

correct and lawful because he had fully served his term of

incarceration. Plaintiff further asserts that the state “ha[d]

no legal authority to arrest and incarcerate him, and by

4

The text of the statute is set out below at 374 Or at 629-30.

Cite as 374 Or 623 (2025) 629

doing so [has] violated his constitutional rights and statu-

tory provisions.” Among other arguments, plaintiff contends

that, having been released on PPS, due process principles

entitled him to “a pre-deprivation notice and opportunity

to be heard before a government agency summarily and

secretly” deprived him “of his liberty by returning him to

prison.”

As we directed, the state filed a response, argu-

ing that the judgment in this case did not expressly pro-

vide for double credit, that DOC’s initial recalculation and

decision to release plaintiff following Torres-Lopez I was in

error, and that DOC properly sought to correct that error

by recalculating plaintiff’s release date a second time and

taking plaintiff back into custody to complete his term of

incarceration. According to the state, because DOC lacked

authority to release plaintiff in August, plaintiff was on

“constructive escape” status. The state further argues that,

because plaintiff had “[e]scaped from the supervision, cus-

tody or control of the department,” DOC had authority to

order his arrest and detention under ORS 144.350. The state

also contends that plaintiff did not suffer any violation of his

constitutional rights, noting that he had the opportunity for

prompt post-deprivation review to address any issues con-

cerning his reincarceration, including the filing of a petition

for mandamus or habeas relief or the filing an administra-

tive grievance with DOC concerning the computation of his

sentence.

After considering those filings, the court allowed

plaintiff’s petition and issued an order in the nature of a

writ of habeas corpus. The court then heard oral argument

on December 18. Having now considered the parties’ fil-

ings and their oral arguments, we conclude that, under the

circumstances of this case, ORS 144.350 did not authorize

DOC to issue the order for plaintiff’s arrest and return.

ANALYSIS

ORS 144.350 provides, in part:

“(1)(a) The Department of Corrections or other super-

visory authority may order the arrest and detention of any

person then under the supervision, custody or control of

630 Arellano-Sanchez v. Thrasher

the department or other supervisory authority upon being

informed and having reasonable grounds to believe that

such person has:

“(A) Violated the conditions of parole, post-prison

supervision, probation, conditional pardon or other condi-

tional release from custody; or

“(B) Escaped from the supervision, custody or control

of the department or other supervisory authority.

“* * * * *

“(3) As used in this section, ‘escape’ means the unlaw-

ful departure of a person from a correctional facility, as

defined in ORS 162.135, or from the supervision, custody

or control of a corrections officer or other person authorized

by the department or supervisory authority to maintain

supervision, custody or control of the person while the per-

son is outside the correctional facility.”

As pertinent here, ORS 144.350 gave DOC authority

to issue an order to arrest and detain plaintiff if DOC had

reasonable grounds to believe that plaintiff had “[v]iolated

the conditions of” his PPS or that he had “[e]scaped” from

DOC’s “supervision, custody or control.” It is undisputed that

plaintiff did not violate the terms of his PPS. Thus, DOC’s

statutory authority to issue the order hinges on whether

plaintiff had “escaped,” which is defined in ORS 144.350(3).

Specifically, DOC’s authority to issue the order for plaintiff’s

arrest reduces to whether DOC had reasonable grounds to

believe that plaintiff had unlawfully departed from a cor-

rectional facility. See ORS 144.350(3) (“ ‘[E]scape’ means the

unlawful departure of a person from a correctional facil-

ity, as defined in ORS 162.135[.]”); see also ORS 162.135(2)

(defining “correctional facility” to include “any place used

for the confinement of persons charged with or convicted of

a crime or otherwise confined under a court order”).

To understand the legislature’s intended meaning

of “unlawful departure,” we examine “the text and context

of the statute—including related statutes and case law—

and then look[ ] to legislative history as necessary.” State v.

Klein, 352 Or 302, 309, 283 P3d 350 (2012) (citing State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)). As noted,

ORS 144.350(3) references a related statute, ORS 162.135,

Cite as 374 Or 623 (2025) 631

which provides definitions for the crimes of first-, second-,

and third-degree escape. Specifically, ORS 162.135(5) defines

escape, as relevant here, to mean “the unlawful departure

of a person from custody or a correctional facility.” In other

words, ORS 144.350(3) and ORS 162.135(5) define “escape”

for purposes of this case similarly—viz., the “unlawful

departure of a person” from a correctional facility, and the

former statute expressly cross-references the latter. For that

reason, ORS 162.135 provides useful context in understand-

ing the meaning of “escape” and “unlawful departure.”

Although the definition of “escape” in ORS 162.135

has been amended since its enactment in 1971 as part of the

Oregon Criminal Code, an “unlawful departure” has been

a consistent feature of that definition.5 “The definition of

‘escape’ ” was intended to be “a restatement of its generally

accepted legal meaning.” Oregon Criminal Code, Final Draft

and Report § 189, 193 (July 1970); see also State v. Giron-

Cortez, 372 Or 729, 745, 557 P3d 505 (2024) (“This court

considers the commentaries produced by the commission

and its subcommittees as part of the Criminal Code’s leg-

islative history.”). At the time that the statute was enacted,

the legal definition of “escape” included (1) “[t]he departure

or deliverance out of custody of a person who was lawfully

imprisoned, before he is entitled to his liberty by the process

of law”; or (2) “[t]he voluntarily or negligently allowing any

person lawfully in confinement to leave the place.” Black’s

Law Dictionary 639 (rev 4th ed 1968).

Unlike the definition of “escape,” which was

intended to be “a restatement of its generally accepted legal

5

In 1971, the then-extant version of ORS 162.135(5) defined escape to mean

“the unlawful departure, including failure to return to custody after temporary

leave granted for a specific purpose or limited period, of a person from custody

or a correctional facility.” Former ORS 162.135(4) (1971), renumbered as ORS

162.135(5) (1991) (emphases added).

The current version of ORS 162.135(5) provides, in full:

“ ‘Escape’ means the unlawful departure of a person from custody or a

correctional facility. ‘Escape’ includes the unauthorized departure or absence

from this state or failure to return to this state by a person who is under the

jurisdiction of the Psychiatric Security Review Board under ORS 161.315 to

161.351. ‘Escape’ does not include failure to comply with provisions of a con-

ditional release in ORS 135.245.”

(Emphasis added.)

632 Arellano-Sanchez v. Thrasher

meaning,” the commentary noted that the “definition of

‘unlawful departure’ [was] new.” Commentary § 189 at 193.

However, the Criminal Code did not define the term “unlaw-

ful departure” and the term subsequently has not been

defined by statute. The common meaning of “unlawful,”

includes “not lawful : contrary to or prohibited by law : not

authorized or justified by law : not permitted or warranted

by law” or “acting contrary to or in defiance of the law : dis-

obeying or disregarding the law.” Webster’s Third New Int’l

Dictionary 2502 (unabridged ed 2002) And the definitions of

“departure” include, “removal from a place : the act of going

away”). Id. at 604.

In addition, as noted, the legislature defined three

degrees of the crime of escape. An “escape” from a correc-

tional facility is a second-degree escape because of the addi-

tional risk involved. Commentary §§ 190-92 at 194; see also

ORS 162.155 (“A person commits the crime of escape in the

second degree if[,]” among other things, “[t]he person escapes

from a correctional facility[.]”). Specifically, “[e]scape from a

correctional facility evidences increased planning and pre-

meditation. Such conduct threatens the security of correc-

tional facilities by increasing the risk of escapes by other

inmates.” Commentary §§ 190-92 at 194.

In sum, the meanings of “escape” and “unlawful

departure” are sufficiently broad to encompass a variety of

circumstances. They are potentially broad enough to extend

beyond what a lay person might consider the ordinary mean-

ing of escape (i.e., one involving intentional action by the

person in custody) and may reach at least some scenarios in

which an inmate is released through inadvertence or error

by the custodial authority. Although we do not attempt to

define the exact boundaries of those terms, we conclude that

the circumstances here fall outside those boundaries even

under the broadest permissible understanding of what can

be considered an unlawful departure for purposes of ORS

144.350.

To recap, plaintiff was incarcerated in a correctional

facility, serving a sentence. DOC recalculated his credit for

time served based on its understanding of what the law

required. After doing so, DOC determined that, under a

Cite as 374 Or 623 (2025) 633

correct interpretation of the law, plaintiff’s projected release

date was in the past. As a consequence, DOC—acting with

full knowledge of the facts and what it understood the law

to be—released plaintiff from the correctional facility in

August, and he began serving PPS. Thereafter, without any

change to the underlying facts of which DOC was aware,

DOC changed its view of the relevant law and again recal-

culated plaintiff’s credit for time served. Under that new

calculation, DOC determined that plaintiff had time left

to serve on his term of incarceration. DOC then issued an

order for plaintiff’s arrest and detention pursuant to ORS

144.350. Pursuant to DOC’s order, plaintiff was taken into

custody and reincarcerated.

Whatever else “unlawful departure” may mean, we

conclude that the legislature did not intend for it to include

circumstances in which DOC (1) determines that a person

is lawfully entitled to be released because he has served his

term of incarceration; (2) pursuant to that determination

releases the person from the correctional facility to begin

serving PPS, see Webster’s at 1917 (defining “release” to

mean, among other things, “to set free from restraint, con-

finement, or servitude : set at liberty : let go”); and (3) later

changes its mind as to whether the person should have been

released. Under those circumstances, the person’s depar-

ture from the correctional facility was not “unlawful” at the

time of the departure, so as to authorize DOC to re-arrest

the person released without any notice or process under the

authority granted by ORS 144.350.

The text and context of the statute do not clearly

compel one answer or another. As noted, the definitions of

escape and unlawful departure are at least arguably broad

enough to cover some circumstances in which a person,

through no fault of his or her own, is erroneously released.

At the same time, it would strain the meaning of “unlaw-

ful departure” to apply that term to a scenario where DOC

makes a deliberate decision to release a person based on its

application of the law to the undisputed facts, and later sim-

ply revises its view of the law. The state has cited no legis-

lative history or other evidence that the legislature affirma-

tively intended for the meanings of “escape” or “unlawful

634 Arellano-Sanchez v. Thrasher

departure” to reach so far. And it is by no means obvious

that DOC’s subsequent change in view should be understood

to retroactively make plaintiff’s release “unlawful” when it

occurred, particularly when the underlying merits of how

to correctly interpret plaintiff’s sentencing judgment are a

subject of live dispute.

To the extent that the text of ORS 144.350 can

plausibly be read in the manner that the state urges, we

must be mindful of potential constitutional problems that

could arise from such a construction. “It is a maxim of stat-

utory construction that, when a statute is capable of more

than one plausible interpretation, the court will avoid an

interpretation that raises a constitutional problem.” Bonner

v. American Golf Corp. of California, 372 Or 814, 844, 558

P3d 812 (2024); Westwood Homeowners Assn., Inc. v. Lane

County, 318 Or 146, 160, 864 P2d 350 (1993), adh’d to as

modified on recons, 318 Or 327, 866 P2d 463 (1994) (rejecting

a proposed interpretation of a statute that “arguably would

infringe on * * * constitutional rights”).

ORS 144.350 allows DOC to order the arrest and

detention of a person on “escape” status without notice or

hearing. Applying that statute to a circumstance in which

a person has been told, under color of law, that he has com-

pleted his sentence and is free to go would, at a minimum,

raise a substantial question of procedural due process under

the United States Constitution. “The Supreme Court has

repeatedly held that, in at least some circumstances, a per-

son who is in fact free of physical confinement—even

if that freedom is lawfully revocable—has a liberty interest

that entitles him to constitutional due process before he is

reincarcerated.” Hurd v. District of Columbia, Government,

864 F3d 671, 683 (DC Cir 2017) (citing Young v. Harper, 520

US 143, 152, 117 S Ct 1148, 137 L Ed 2d 270 (1997) (pre-pa-

role conditional supervision); Gagnon v. Scarpelli, 411 US

778, 782, 93 S Ct 1756, 36 L Ed 2d 656 (1973) (probation);

Morrissey v. Brewer, 408 US 471, 482, 92 S Ct 2593, 33 L Ed

2d 484 (1972) (parole)).

This case does not involve parole, probation, or post-

prison supervision; rather, it involves a person whom the

Cite as 374 Or 623 (2025) 635

state contends should never have been released from prison

in the first place. But that distinction is not dispositive of

the potential due process issue. The state’s own arguments

indicate as much. In this case, plaintiff was arrested and

returned to prison within months after being released. But

the state’s legal theory permitting plaintiff’s arrest under

ORS 144.350 contains no temporal limiting principle. Taken

to its logical end, under the state’s theory, a person released

from custody would be subject to summary arrest and rein-

carceration years or even decades later (with no violation of

PPS), so long as DOC in the intervening period had adopted

a new understanding of the applicable law and determined

that the person had time left to serve. At oral argument, the

state candidly acknowledged that, in a hypothetical future

case in which a person had been released from custody years

earlier, that person may well have a constitutional liberty

interest precluding a summary arrest and reincarceration

without any predeprivation process. If such a liberty inter-

est exists for a person after a period of years, we are uncon-

vinced that it does not exist for a person released for a period

of months.

In support of its argument, the state cited cases for

the proposition that “[a] prisoner who is mistakenly released

does not have a protected liberty interest because, unlike a

parolee, he does not have a legitimate claim of entitlement

to freedom.” Henderson v. Simms, 223 F3d 267, 274 (4th Cir

2000) (internal quotation marks omitted). We are not per-

suaded by that conclusory statement by the Fourth Circuit. It

is not consistent with the state’s position at oral argument, in

which the state allowed that, at least after some passage of

time, a prison who was released in error might have a liberty

interest sufficient to require, at a minimum, some notice and

process before the state seeks to return the person to incar-

ceration. Other courts have viewed the issue differently than

the Fourth Circuit. A far more thorough analysis is found

in Hurd, for example, where the District of Columbia Circuit

reasoned that the mistakenly released prisoner in that case,

“like a parolee, was able to be—and was—’gainfully employed

and [ ] free to be with family and friends and to form the other

enduring attachments of normal life.’ ” 864 F3d at 683 (quot-

ing Morrissey, 408 US at 482 (brackets in Hurd)). It is not

636 Arellano-Sanchez v. Thrasher

necessary for purposes of our decision today to definitively

resolve the nature of the liberty interest that attaches to a

person who has been released under the circumstances that

exist here. It is sufficient to note that such a person arguably

has a liberty interest that would require predeprivation pro-

cess, as the District of Columbia Circuit concluded in Hurd, in

order to conclude that we should avoid a construction of ORS

144.350 that would raise a potential constitutional problem.

The state also relies on this court’s decision in

Fredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957), in

which this court affirmed the trial court’s dismissal of the

plaintiff’s habeas proceeding. In Fredericks, the plaintiff had

been prematurely released and deemed to be a “constructive

escapee.” We stated that, “[i]f at a time when the defendant

was illegally at large he was apprehended and returned

to the penitentiary, his term not having then expired, we

need not inquire how he got there.” Id. at 326. For several

reasons, we decline to rely on that wording in Fredericks.

Fredericks predates ORS 144.350(1)(a)(B), the statute on

which DOC relies in this case as the source of its authority

to return plaintiff to custody. See Or Laws 1999, ch 120, § 2

(amending ORS 144.350 to, among other things, add ORS

144.350(1)(a)(B) and ORS 144.350(3)). Furthermore, there

was no dispute in Fredericks that the “premature release”

of the plaintiff in Fredericks had been “illegal” because the

prison warden had erred in certifying that the plaintiff was

entitled to the reductions set forth in the certificate when

it was “conceded that the plaintiff was not so entitled.” 211

Or at 324-25.6 Finally, the court in Fredericks evidently had

no reason to consider the due process implications that are

significant to our construction of ORS 144.350 today.

6

To reiterate, our decision today does not foreclose the possibility that there

may be circumstances that constitute a “constructive escape.” The state points to

an administrative rule that addresses that concept. See OAR 291-100-0008(13)

(“Escape: Unauthorized departure of an AIC from the physical or legal custody

of the Department of Corrections. Escape includes ‘constructive escape’ where an

AIC has any unserved Department of Corrections felony sentence(s) and, by no

effort of the AIC, is voluntarily absent from the Department of Corrections (for

example, where an AIC is released from custody after serving a local supervisory

sentence despite the AIC having an unserved Department of Corrections felony

sentence(s)).” (Emphasis added.)). However, those circumstances do not exist in

this case in which there is a dispute about whether plaintiff had an “unserved”

sentence at the time that he was released in August.

Cite as 374 Or 623 (2025) 637

In sum, we conclude that, under the circumstances

of this case, ORS 144.350(1)(a)(B) did not authorize DOC to

issue an order for plaintiff’s arrest and return to custody.

Accordingly, his present imprisonment is unlawful, and he

is entitled to immediate release.

Having concluded that ORS 144.350(1)(a)(B) did not

authorize DOC to issue the order pursuant to which plain-

tiff was arrested and returned to prison, it remains unclear

how the state can proceed to resolve whether DOC lawfully

released plaintiff in August, and, if it did not, return him

to custody. As noted, before plaintiff’s arrest, the district

attorney had filed a motion to correct the judgment of con-

viction under ORS 137.172. Whether that statute applies in

this context is an issue to be decided in a trial court in the

first instance, and we express no view as to its applicability.

Finally, to the extent that the state has identified a gap in

the statutory scheme—another issue that we do not decide—

filling that gap is an issue for legislative consideration.

CONCLUSION

For the foregoing reasons, we conclude that, under

the circumstances of this case, ORS 144.350 did not authorize

DOC to issue the order for plaintiff’s arrest and return and

that, as a result, plaintiff’s present imprisonment is unlaw-

ful. We order defendant to discharge plaintiff from custody

immediately. See ORS 34.700(1) (“If it appears that the party

detained is imprisoned or restrained illegally, judgment shall

be given that the party be discharged forthwith[.]”). We fur-

ther waive otherwise applicable appellate rules relating to

reconsideration and the issuance of the appellate judgment,

and we direct the State Court Administrator to issue the

appellate judgment immediately. See ORAP 1.20(5) (permit-

ting the court, for good cause and on its own motion, to waive

any rule of appellate procedure); ORAP 9.25 (providing for

reconsideration); ORAP 14.05(3)(b) (providing for the timing

of the issuance of the appellate judgment).7

7

ORS 34.700(2) provides that a court “shall include in the judgment an order

that the defendant pay the attorney fees incurred by the petition, not to exceed

$100,” if “[t]he court enters a judgment requiring that the plaintiff be discharged”

and “[t]he court finds that the allegations or defenses in the return were frivo-

lous.” Under the circumstances, we do not find that the state’s position was frivo-

lous. For that reason, plaintiff is not entitled to attorney fees under the statute.

638 Arellano-Sanchez v. Thrasher

It is hereby ordered that plaintiff immediately be

discharged from his illegal imprisonment. Pursuant to

ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP

14.05(3)(b), the State Court Administrator shall issue the

appellate judgment immediately.

JAMES, J., concurring.

I agree fully with the majority. After calculating

plaintiff’s sentence, and releasing him from custody, the

Department of Corrections (DOC) seized plaintiff, without

a judicial warrant, under a claim of authority purportedly

conferred by ORS 144.350(1)(a)(B), which provides that DOC

may issue an “order” for the arrest and detention of indi-

viduals who have “[e]scaped from the supervision, custody

or control of the department.” That statute defines “escape”

as “the unlawful departure of a person from a correctional

facility.” The majority aptly explains that, under the circum-

stances here, when DOC released plaintiff due to its own

calculations, plaintiff did not unlawfully depart a correc-

tional facility. Accordingly, the warrantless seizure of plain-

tiff was unlawful.

I write separately to raise two points that are best

set forth in a concurrence—points that are intended to pro-

vide some practical suggestions to DOC and the trial bench

and Bar as to how to apply our recent decision in State ex rel

Torres-Lopez v. Fahrion, 373 Or 816, 819, 572 P3d 1045

(2025) (Torres-Lopez I), adh’d to as modified on recons, 374

Or 423, ___ P3d ___ (2025) (Torres-Lopez II).

It is common practice in Oregon for parties to

request, and courts to include in a criminal judgment, the

phrase “credit for time served,” sometimes shortened to

“CTS.” When that is noted on a judgment, in my experience,

the vast majority of the time, the parties and the court envi-

sion that the credit will be applied against the total period of

incarceration, which typically occurs by applying it against

the “primary” offense of conviction, as determined by ORS

144.079(1)(a)(A).

In Torres-Lopez, however, the trial court used differ-

ent language. Rather than simply indicating “credit for time

served,” the trial court wrote on the judgment “credit for

Cite as 374 Or 623 (2025) 639

time served since December 21, 2019[,] including time cred-

ited to Clackamas County case #18CR85288.” Torres-Lopez

I, 373 Or at 820. The trial court even amended the judgment

to add further language: “The defendant shall receive incar-

ceration credits pursuant to ORS 137.370(4) and (5) for all

time since his arrest on these charges including any time

served on other sentences during the time since his arrest

on these charges.” Id. at n 3.

The issue in Torres-Lopez was that, despite that

specific language by the trial court, DOC applied the credit

for time served in the same manner as it would have if the

judgment had simply said “credit for time served,” i.e., tra-

ditionally applied against only the primary offense. Torres-

Lopez did nothing more than remind everyone that, in 2015,

the legislature had amended ORS 137.370(4), the statute

that provides for credit for time served. That specific sub-

section states:

“Unless the court expressly orders otherwise, a person

who is confined as the result of a sentence for a crime or

conduct that is not directly related to the crime for which

the sentence is imposed, or for violation of the conditions

of probation, parole or post-prison supervision, shall not

receive presentence incarceration credit for the time served

in jail toward service of the term of confinement.”

It was undisputed in Torres-Lopez that ORS

137.370(4) applied, because the defendant was “confined as

the result of a sentence for a crime or conduct that [was] not

directly related to the crime for which the sentence [was]

imposed, or for violation of the conditions of probation, parole

or post-prison supervision.” And it was also undisputed in

Torres-Lopez that the trial court had “expressly ordered”

that defendant would receive credit for time held in custody

on an unrelated case in another county. As we noted, “the

text and context of ORS 137.370(4) support the conclusion

that, after the 2015 amendment to the statute, courts had

authority to grant what would otherwise be considered ‘dou-

ble credit’ under the circumstances presented here.” Torres-

Lopez I, 373 Or at 828. In short, the 2015 changes to the

statute provided the court the discretion to order what it

had done, and DOC had erred in treating the court’s specific

640 Arellano-Sanchez v. Thrasher

language in the judgment as a more generic indication of

“credit for time served.”

Again, Torres-Lopez did nothing more than remind

the bench and Bar and DOC, that ORS 137.370(4) had been

amended in 2015 to give trial courts the authority to order

what would amount to “double credit” in limited circum-

stances. But the changes in 2015 to ORS 137.370(4) may

not have translated to changes in practice by the bench and

Bar. That is not uncommon—it is the case that sometimes

routines of practice do not always keep pace with statutory

changes. In light of Torres-Lopez’s reminder, however, from

this point onward, practitioners and trial courts would be

prudent to use caution in employing generic terms like

“credit for time served” or “CTS.”

In turning a careful eye to those terms, the first

question they should ask is whether ORS 137.370(4)

applies—that is, whether the court is considering presen-

tence incarceration credit for custody time that is “not

directly related” to the sentence that the court is imposing.

If it is “not directly related,” then they should ask the next

question—whether the court should exercise its discretion

to “expressly order” what would amount to “double credit.”

In those circumstances, practitioners and trial courts may

need to speak with more precision. For example, if a trial

court wants to apply credit to multiple counts, the trial court

should explicitly state as much, as the court did in Torres-

Lopez, by signifying the case number and count to which

the court intends the credit to apply. And if the trial court

does not want to exercise the discretion afforded under ORS

137.370(4), it may be wise to indicate that it is declining to

apply credit for time served in the manner afforded under

ORS 137.370(4), thus alleviating any uncertainty.

Although that is prudent practice going forward, the

legislative change occurred in 2015. According to statements

made by DOC in the case before us, there might be as many

as 11,000 existing judgments implicated by ORS 137.370(4).

And that brings me to my second point: How should DOC

and the courts deal with judgments that have already been

entered in cases where ORS 137.370(4) applied, yet the judg-

ment issued prior to Torres-Lopez’s reminder, and therefore,

Cite as 374 Or 623 (2025) 641

whether by routine of practice or intent, the judgment used

the common generic language of “credit for time served,” or

“CTS,” without clarification?

In the first instance, DOC should first confirm

whether ORS 137.370(4) even applies, that is, whether the

credit for time served ordered by the court was for time held

in custody on a crime that is “not directly related” to the

sentenced offense, as in Torres-Lopez. If the statute applies,

then DOC should assess whether the trial court had clearly

and unambiguously ordered “double credit” as the trial court

did in Torres-Lopez, whether the trial court had clearly and

unambiguously declined to order such credit, or whether the

judgment is potentially ambiguous in that regard. If DOC

determines that the judgment is potentially ambiguous,

then DOC may need to seek a judicial determination of the

intended meaning of the judgment. The precise procedural

mechanism for doing so is not entirely clear.

In this case, the state filed a motion to correct the

judgment, under ORS 137.172. That statute provides trial

courts the authority to modify previously issued judgments

“to correct any arithmetic or clerical errors or to delete

or modify any erroneous term in the judgment.” The par-

ties have disputed whether, had those hearings actually

occurred, the trial court would have had authority under

that statute. In this case, the state argues that, in light of

Torres-Lopez, a factual inquiry into the trial court’s intent

may be necessary to determine if the application of the credit

for time served calculation was erroneous. In essence, the

state’s argument is that, when ORS 137.370(4) applies, sim-

ply entering “credit for time served” on a judgment either

evidences an intent to not apply ORS 137.370(4) or at least

creates an ambiguity in the judgment that may require

clarification; via the ORS 137.172 process. Plaintiff argues

that, even if ambiguous, ORS 137.172 provides for correc-

tion of erroneous terms, not ambiguous terms, nor errone-

ous application of terms, and therefore the trial court would

lack authority under ORS 137.172 to modify a judgment that

simply says “credit for time served,” because those words, on

their face, are not erroneous.

642 Arellano-Sanchez v. Thrasher

As the majority explains, we do not decide today

whether ORS 137.172 is a viable procedural mechanism for

clarifying a trial court’s intent when, in a case where ORS

137.370(4) applies, it states in the judgment “credit for time

served.” There may be other procedural ways to resolve the

ambiguity, as the state acknowledged at oral argument in

this case. Regardless of the procedural mechanism, the crit-

ical point is that resolving an ambiguity in the judgment

requires some judicial action; it is not something that DOC

should determine unilaterally.

Any uncertainty as to whether ORS 137.172 would

be a proper vehicle to clarify an ambiguous term in a crim-

inal judgment could be resolved through a relatively minor

statutory change. The statute could be amended to read,

“to correct any arithmetic or clerical errors or to delete or

modify any erroneous or ambiguous term in the judgment.”

Whether such a statutory change should be undertaken is a

question left to the wisdom of the legislature.

Because I fully agree with the majority opinion, I

respectfully concur.

Bushong, J., joins in this concurrence.