FLETES v. THRASHER (2026)

In 2022, plaintiff was sentenced to a total term of incarceration of 56 months, which was the product of two consecutive 13-month sentences in one case and a 30-month sentence in another case, also to be served consecutively. The judgments in plaintiff's cases stated for each count that (1) plaintiff would receive “[c]redit for time served” or “may receive credit for time served”; and (2) plaintiff “shall receive presentence incarceration credits pursuant to ORS 137.370(4).”

In 2025, we issued a decision concerning the calculation of credit for time served under ORS 137.370(4). State ex rel Torres-Lopez v. Fahrion, 373 Or. 816, 572 P.3d 1045 (Torres-Lopez I), adh'd to as modified on recons., 374 Or. 423, 579 P.3d 1056 (2025) (Torres-Lopez II). Following our decision in Torres-Lopez I, the Oregon Department of Corrections (DOC) recalculated plaintiff's credit for time served and determined that plaintiff's projected release date was in the past. In August 2025, DOC released plaintiff onto post-prison supervision.

Thereafter, DOC changed its view of the relevant law and again recalculated 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. Plaintiff was rearrested on December 5.

On December 24, this court issued Arellano-Sanchez v. Thrasher, 374 Or. 623, ––– P3d –––– (2025), concluding that, under similar circumstances, DOC lacked authority to issue orders pursuant to ORS 144.350 and, for that reason, the plaintiff's detention in that case was unlawful. The court reached the same conclusion in Allen v. Thrasher, 374 Or. 618, ––– P3d –––– (2025), and Hernandez v. Thrasher, 374 Or. 643, ––– P3d –––– (2025), two other cases that presented qualitatively indistinguishable circumstances.

Within a few hours of the issuance of the decisions in Arellano-Sanchez, Allen, and Thrasher, the district attorney's office in Jackson County filed a motion pursuant to ORS 137.172 to amend the judgments of conviction in plaintiff's criminal cases by “delet[ing] the erroneous references to ‘credit for time served’ or ‘presentence incarceration credits pursuant to ORS 137.370(4)’ in the judgment on the consecutive counts in this matter” in order “to ensure [plaintiff's] sentence continues to be calculated accurately, consistent with the Court's intent.” See ORS 137.172(1) (“The trial court retains authority 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.”). Following a hearing on January 9, 2026, the trial court issued an order denying the motion. The state then filed a petition for a writ of mandamus in State of Oregon v. Fletes (S072586), contending that the trial court's order was legally erroneous.

In the meantime, plaintiff had 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 Plaintiff contends that there is “no legal or factual distinction between plaintiff's case and the individuals” whom this court ordered be immediately released “in Allen, Arellano-Sanchez, and Hernandez.” In response, the state has acknowledged that “[a]ny factual or procedural differences between this case and those are likely immaterial to the questions before this court in this habeas proceeding.” The state has further acknowledged that, “[p]ursuant to this court's holding in Arellano-Sanchez, [the state] agrees that ORS 144.350 did not provide authority for plaintiff's re-arrest.”

We understand the state to essentially agree that plaintiff is entitled to release under the rationale of Arellano-Sanchez. However, the state has requested that this court defer resolution of plaintiff's habeas petition pending resolution of the mandamus petition that the state has filed challenging the trial court's denial of the state's motion pursuant to ORS 137.172. Plaintiff has filed a reply objecting to that request.

As both parties observe, the circumstances in this case are qualitatively indistinguishable from those in Arellano-Sanchez. Thus, for the reasons stated in Arellano-Sanchez, we conclude that ORS 144.350 did not authorize DOC to issue the order for plaintiff's arrest and return. Given the trial court's denial of the state's motion pursuant to ORS 137.172, no other putative source of authority presently exists for plaintiff's imprisonment. We reject the state's request that we defer disposition of plaintiff's habeas petition pending resolution of the state's mandamus petition.

Accordingly, we order that defendant 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 further 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) (permitting 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).²

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.

FOOTNOTES

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.   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 frivolous.” Under the circumstances, we do not find that the state's position was frivolous. For that reason, plaintiff is not entitled to attorney fees under the statute.

GARRETT, J.