# Arellano-Sanchez v. Thrasher

> Oregon Supreme Court · December 24, 2025 · 374 Or. 623

URL: https://www.frixlaw.com/law-library/cases/11231448

## Case

- **Court:** Oregon Supreme Court
- **Decided:** December 24, 2025
- **Citations:** 374 Or. 623
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Garrett
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11231448. Public record. Not legal advice.