State v. DeJesus

644 November 12, 2026 No. 1096 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, and OREGON DEPARTMENT OF CORRECTIONS, Intervenor-Respondent, v. LAZARO ALFREDO DeJESUS, Defendant-Appellant. Washington County Circuit Court 22CR47898; A190754 (Control), A190746 Rebecca D. Guptill, Judge. Argued and submitted October 9, 2026; on the Court of Appeals’ Order to Show Cause dated July 15, 2026. Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the appellant’s response to Order to Show Cause was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Christopher A. Perdue, Assistant Attorney General, argued the cause for respondents. Also on the respondents’ response to Order to Show Cause was Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Powers, Presiding Judge, Lagesen, Chief Judge, and Joyce, Judge. POWERS, P. J. Appeal to proceed; defendant’s opening brief is due 49 days from the date of this opinion. Cite as 354 Or App 644 (2026) 645 646 State v. DeJesus POWERS, P. J. Defendant appeals from the trial court’s order entered after it ruled on a so-called “HB 4041 petition,” which is a petition filed by the Oregon Department of Corrections (ODOC) as provided by House Bill (HB) 4041 (2026) to determine whether a defendant is lawfully subject to further incarceration and recommitment to the physical custody of ODOC. In response to our order to show cause, the parties dispute whether the order is appealable. As explained below, we conclude that the HB 4041 proceeding is a special statutory proceeding, the order is appealable under ORS 19.205(5), and that we have jurisdiction to pro- ceed with the appeal. We further conclude that, despite our broad ruling in an earlier decision, appointed counsel has the authority to continue to represent defendant in this pro- ceeding. Accordingly, the appeal will proceed in the regular course. I. BACKGROUND The background is mostly procedural and undis- puted. We begin with the legal framework regarding calcu- lating credit for time served and the historical progression that led to the dispute resulting in the appeal of the trial court’s order. A. Legal Framework When a defendant is convicted and sentenced, the trial court may order that the defendant receive credit for time served toward the defendant’s sentence, which gen- erally includes time spent incarcerated while awaiting trial. Although the court determines the sentence, ODOC is responsible for calculating specific dates and applying any credit for time served. See ORS 137.320(3) (provid- ing that ODOC shall “compute the defendant’s sentence”). ORS 137.370 governs how ODOC computes the sentence and determines whether time spent in custody presentence should be credited toward the sentence, including when a defendant receives consecutive sentences. In July 2025, the Supreme Court decided State ex rel Torres-Lopez v. Fahrion, 373 Or 816, 572 P3d 1045 Cite as 354 Or App 644 (2026) 647 (Torres-Lopez I), adh’d to as modified on recons, 374 Or 423, 579 P3d 1056 (Torres-Lopez II) (2025), which interpreted ORS 137.370 and related to the calculation of presentence incarceration credit for “sentences imposed for crimes that were not ‘directly related’ to the crime for which a sentence is imposed or for probation, parole, or post-prison supervision violations.” The court’s conclusion in Torres-Lopez I about what qualifies as presentence incarceration credits resulted in ODOC reviewing and recalculating sentences in thou- sands of cases.1 In some cases, the recalculations resulted in earlier projected release dates, which resulted in immediate releases. In November 2025, the Supreme Court clarified its decision in Torres-Lopez II because of a factual error in the original opinion and explained that correcting the error did not change the outcome. 374 Or at 425. In particular, the court explained that the “type of time that ORS 137.370(4) applies to is not limited to time physically spent in a county jail but includes all time in which a person is in the legal custody of a jail for the crime for which the sentence is being calculated.” Id. at 431 (emphases omitted). Under the default rule set out in the statute, a person was not entitled to credit for that time; however, the sentencing court could autho- rize—under the statute’s exception—credit for that time by expressly ordering it, which could result in “double credit” or credit for only one. Id. at 431-32, 432 n 7. The court’s deci- sion in Torres-Lopez II resulted in ODOC again reviewing and recalculating the sentences in many cases and discov- ering that, under the new calculation, some individuals had been prematurely released. For those individuals prematurely released, ODOC arrested and returned them to ODOC custody to serve the remainder of their recalculated sentences, acting under the authority provided in ORS 144.350, which authorizes ODOC to issue an order for the arrest of a person who has escaped from custody or violated conditions of release. In December 1 In a hearing before the House Judiciary Committee, an ODOC official tes- tified that, after Torres-Lopez I, the agency reviewed 11,000 cases and under its new calculations, 388 of those cases had their projected release date adjusted to an earlier date. Testimony, House Committee on Judiciary, HB 4041, Feb 9, 2026 (statement of ODOC representative Larry Bennett). 648 State v. DeJesus 2025, the Supreme Court concluded that ORS 144.350 did not provide ODOC with the authority to rearrest individu- als that had been released due to a time recalculation, and the court began granting writs of habeas corpus resulting in immediate releases. Arellano-Sanchez v. Thrasher, 374 Or 623, 582 P3d 178 (2025). In March 2026, the legislature adopted HB 4041 (2026), which included provisions addressing calculating credit for time served in consecutive sentences and limited how presentence incarceration credit may be applied in specified circumstances. The bill also provided a process by which ODOC or the state could petition the sentencing court for a determination of whether a person should be reincar- cerated after an erroneous release, and a process for request- ing and ordering that the person be held—if already in cus- tody—or taken into custody pending the hearing.2 Or Laws 2026, ch 14, § 7. The legislation was colloquially referred to as the “Torres-Lopez fix” because it was intended to provide the state with a method to reincarcerate an individual after they had been erroneously released from custody. HB 4041 provides that, if ODOC determines that a person was released as a result of “a material error in sen- tence computation or legal interpretation,” ODOC “shall,” or the state “may,” petition the sentencing court for “an order determining whether the person is lawfully subject to fur- ther incarceration.” Id. The sentencing court must then “determine whether probable cause exists to support the claim” of material computation or legal interpretation error, and, if so, schedule a hearing, issue an order for the person to appear, order the petitioner to provide notice of the order and hearing to the person and victim, and appoint counsel for a financially eligible person who does not already have counsel. Id. Additionally, the court may order the arrest and detention or continued custody of the person pending the hearing if it concludes by clear and convincing evidence that such action is necessary for public safety. Id. “At the hearing, the person has the right to be heard, to present evidence and to contest the claims set forth in the 2 The parties refer to the hearing process for reincarceration enacted in HB 4041 as an “HB 4041 proceeding,” and we do the same for consistency. Cite as 354 Or App 644 (2026) 649 petition. The person may not challenge the original sentence imposed, and may only challenge the claim presented in the petition asserting that the person is subject to additional incarceration.” Id. After the hearing, the court may order the person “recommitted to the legal and physical custody” of ODOC if it finds by clear and convincing evidence that the person has not completed the lawfully imposed sentence and has more than 30 days remaining on the sentence originally imposed. Id. After the legislature passed HB 4041, the Governor signed the bill on March 5, 2026, and it contained an emergency clause that made it effective immediately on enactment. B. Procedural History With that legal framework in mind, we turn to defendant’s circumstances. In April 2023, defendant pleaded guilty to two counts of unlawful use of a weapon in Washington County Circuit Court Case No. 22CR47898, Count 1 and Count 3, and was sentenced to probation with a provision in the plea agreement that probation revocation would result in a total of 36 months in prison, 18 months for each charge served consecutively.3 In June 2023, the trial court issued a bench war- rant for defendant for violating his probation. Defendant was arrested on August 16, and he was held in custody pend- ing a probation-revocation hearing. On October 6, the court revoked defendant’s probation in Case No. 22CR47898, and he was sentenced to 36 months in prison under the terms of his plea agreement. The revocation judgment provided that defendant “should receive [credit for time served] on [Case No.] 22CR47898 for all time in Washington County jail,” and ODOC credited him for time served and calculated a projected release date of February 20, 2026.4 3 On the same day, defendant pleaded guilty to charges in Washington County Circuit Court Case No. 23CR06631. He was sentenced to one year in county jail but could be released to the probation office for placement in a treat- ment facility. Defendant was transferred from the jail to community corrections for the remainder of his sentence on May 20, 2023, but he later absconded, lead- ing to the probation violation in Case No. 22CR47898. 4 In its HB 4041 petition, ODOC explained that defendant did not receive credit for time spent in custody from August 16 to October 6 because he was 650 State v. DeJesus In August 2025, after the Supreme Court’s decision in Torres-Lopez I, ODOC recalculated defendant’s sentence. That recalculation resulted in a new release date of August 21, 2025, and defendant was immediately released.5 After the Supreme Court’s decision in Torres-Lopez II, ODOC again recalculated defendant’s sentence and determined that he still had remaining time to serve.6 Defendant was rearrested that month, November 2025, and given a pro- jected release date of June 3, 2026. Defendant did not peti- tion for habeas corpus. After HB 4041 went into effect in March 2026, ODOC petitioned the sentencing court for an order deter- mining whether defendant was lawfully subject to further incarceration. After a hearing, the court issued an order granting the petition, concluding that defendant had not completed his sentence and still had more than 30 days to serve. It is that order that we must determine whether we have jurisdiction to review. Defendant filed a notice of appeal of the trial court’s order on the HB 4041 petition. The Appellate Commissioner issued an order to show cause directing defendant to iden- tify why the appeal should not be dismissed on the grounds that it is not taken from an appealable order or judgment under ORS 138.035.7 Defendant responded that the order is appealable under ORS 19.205(5) as a “special statutory pro- ceeding.” We asked for a response, and the state responded on behalf of itself and intervenor-ODOC, arguing that the order is not appealable under ORS 19.205(5) because an HB 4041 proceeding is not a “special statutory proceeding” but “serving the previously imposed jail sentence” in Case No. 23CR06631. Additionally, defendant did not receive any credit towards Count 3 because it was to be served consecutively to Count 1, and applying that time would result in “double counting the time served.” 5 ODOC explained that in response to Torres-Lopez I, it concluded that defen- dant should receive credit for the time it had excluded due to his sentence in Case No. 23CR06631 and that it should apply all of the time to both Count 1 and Count 3, resulting in the earlier release date. 6 ODOC’s recalculation returned the time served credits to its original cal- culation, such that it removed the days that it attributed to the sentence in Case No. 23CR06631 and the time served credit from Count 3. 7 Defendant does not challenge the Appellate Commissioner’s conclusion, and we agree that the order is not appealable under ORS 138.035. Cite as 354 Or App 644 (2026) 651 rather an extension of the underlying criminal proceeding. We set the case for oral argument and requested that the parties be prepared to discuss both the appealability of the order and what effect, if any, State v. Shank, 206 Or App 280, 136 P3d 101 (2006), may have on this case given its conclusion that the public defender’s office had no authority to represent the defendant in a special statutory proceeding under ORS 19.205(5). After argument, defendant submitted a supplemental memorandum addressing Shank and the parties filed a joint notice of related cases. We appreciate the parties’ diligence in responding to our invitations for supplemental filings. II. ANALYSIS This case presents two primary issues: (1) whether the order is appealable as a “special statutory proceeding” under ORS 19.205(5); and (2) if so, whether Oregon Public Defense Commission (OPDC) can serve as defendant’s counsel in the appeal, in light of Shank. We begin with appealability. A. Appealability of a Trial Court’s Order on an HB 4041 Petition The right to appeal is purely statutory. State v. K. P., 324 Or 1, 4, 921 P2d 380 (1996). HB 4041 does not address appealability. Thus, the question here is whether an order granting an HB 4041 petition is appealable under ORS 19.205(5) as an order deciding a special statutory proceed- ing. See ORS 138.065 (providing that a “party may appeal a judgment or order deciding a special statutory proceeding as provided in ORS 19.205”).8 As explained below, because it is separate and distinct from the underlying criminal case, and it does not seek to modify or challenge the judgment or sentence, we conclude that an HB 4041 proceeding consti- tutes a special statutory proceeding. Accordingly, an order on an HB 4041 petition is appealable under ORS 19.205(5). 8 ORS 19.205(5) provides: “An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment or order entered in an action, unless appeal is expressly prohibited by the law authorizing the special statutory proceeding.” 652 State v. DeJesus ORS 19.205 generally applies to civil appeals; how- ever, the Supreme Court and we have applied ORS 19.205 in certain circumstances that are not strictly civil matters. State v. Johnson, 254 Or App 447, 452, 295 P3d 677, rev den, 353 Or 747 (2013). Although there is no statutory definition of a “special statutory proceeding,” the appellate courts have broadly defined the phrase by identifying “crucial attributes” of the proceedings. State v. Dunham, 336 Or App 30, 35, 560 P3d 736 (2024). A special statutory proceeding is “a separate and distinct judicial proceeding, with clearly defined par- ties, that does not disrupt other judicial proceedings” and that it is a “final and complete determination of the matter.” Id. (internal quotation marks and citations omitted). Such attributes are evaluated in a functional, not a formalistic manner, and thus a proceeding can be “separate” even if it arises as part of and under the same case number as an existing case. State v. Branstetter, 332 Or 389, 396-98, 29 P3d 1121 (2001). For example, a forfeiture proceeding under ORS 167.347—which allows an animal-care entity to request an order forfeiting animals in instances of alleged abuse—is a special statutory proceeding even though it must be filed in a corresponding criminal action under the same case num- ber. Id. at 403. Although the forfeiture proceeding can exist only as part of a criminal action, it is not premised on a defendant’s criminal guilt but rather on whether the other party can establish probable cause of abuse. Id. at 402. The proceeding does not “arise out of the criminal action, resolve any controversy in the criminal action, or otherwise affect or depend on the substance of the criminal action,” and it is therefore sufficiently separate so as to be a special statutory proceeding. Id. at 398-99. A proceeding may be a special statutory proceeding even if it directly relates to the originally imposed sentence. For example, when a defendant seeks the waiver of an orig- inal sentence’s financial obligations, and the proceeding is therefore entirely dependent upon the imposed sentence, it may be sufficiently separate from the underlying crimi- nal case if the proceeding arises from a distinct statutory procedure and is “concerned with factual findings and legal Cite as 354 Or App 644 (2026) 653 matters that were not at issue in [the] defendant’s under- lying criminal cases and do not concern the propriety of his original criminal prosecutions.” Dunham, 336 Or App at 37. Other considerations when evaluating proceedings include whether they may involve different parties, will dis- rupt other judicial proceedings, or contain a burden of proof that would be “incongruous (if not unconstitutional) as the legal standard for finding against a defendant in a criminal action.” Branstetter, 332 Or at 402. In contrast, when a proceeding “is intended to cor- rect an error in a criminal case or otherwise obtain a new trial,” it is “too intimately bound up with the criminal case” to constitute a special statutory proceeding. Dunham, 336 Or App at 36. For example, a proceeding regarding a motion to correct a judgment under former ORS 138.083 (2003), repealed by Or Laws 2017, ch 529, § 26, is not a special statutory proceeding because the statute authorizing the motion is directed specifically to the sentencing court. State v. Hart, 188 Or App 650, 654, 72 P3d 671, rev den, 336 Or 126 (2003). That is, former ORS 138.083 (which has since been replaced with ORS 137.172) was intended to resolve a controversy in the criminal action, namely whether the judgment was erroneous, and it seeks to modify the sub- stance of the underlying criminal action by modifying the terms of the defendant’s sentence. Id. at 654-55. Similarly, a motion requesting DNA testing after conviction is too inti- mately bound up with the criminal case to be appealable as a special statutory proceeding because it is brought for purposes of obtaining evidence of the defendant’s innocence and obtaining a new trial. Johnson, 254 Or App at 455. Here, defendant argues that HB 4041 established a special statutory proceeding appealable under ORS 19.205(5), because (1) it is distinct from the associated crim- inal proceeding because it is complete within itself (i.e., it provides an entire process from a petition, motions practice, hearings, participation and representation of the person, and factual findings by the court); (2) it may involve differ- ent parties than in the underlying criminal case, specifically ODOC; (3) it cannot disrupt, resolve, or modify any part of the criminal case; and (4) it is “concerned with factual findings 654 State v. DeJesus and legal matters that were not at issue in [the] defendant’s underlying criminal cases,” Dunham, 336 Or App at 37-38. The state disagrees, arguing that the HB 4041 proceeding is not a special statutory proceeding because it (1) is not dis- tinct from the criminal proceeding itself because it must be filed in a defendant’s criminal case and is directed at “the sentencing court”; (2) resolves a “controversy in the criminal action”; (3) seeks to correct some aspect of the underlying judgment; and (4) is based on the original facts developed at trial and sentencing. We are unconvinced by the state’s assertions. Although an HB 4041 proceeding necessarily depends upon the underlying criminal case, given that it is a means of enforcing the sentence imposed by the judg- ment, it is not challenging the underlying criminal convic- tion, sentence, or any aspect of the judgment as the state’s argument appears to suggest. Indeed, under the terms of HB 4041, a defendant is explicitly prohibited from challeng- ing “the original sentence imposed, and may only challenge the claim presented in the petition asserting that the person is subject to additional incarceration.” Despite the petition being directed to the “sentencing court,” the question in an HB 4041 proceeding is whether the imposed sentence has “been fully served,” given ODOC’s computation and is not whether the court erred in imposing the sentence or if there is an error in the judgment. That is, HB 4041 allows a hear- ing if there is a “material error in sentence computation or legal interpretation.”9 The proceeding arises based on the defendant’s “present circumstances,” namely the current computation or recomputation of a defendant’s sentence, “without regard to the lawfulness of [the sentence’s] origi- nal imposition.” See Dunham, 336 Or App at 37. As the state accurately observes in its response to the show cause order, “neither party is trying to change the judgment or waive its terms. The only question is whether the judgment has been applied correctly.” 9 To the extent that the text may be unclear as to whose “legal interpreta- tion” is at issue, we understand the legislature’s focus in HB 4041 to be ODOC given its statutory responsibilities. See Or Laws 2026, ch 14, § 10 (amending ORS 137.320 to direct that ODOC shall “compute the defendant’s sentence” and must provide notice if it “recomputes” a sentence that “results in a projected release date that is different from a previously computed projected release date”). Cite as 354 Or App 644 (2026) 655 Further, ODOC is not a party in original criminal proceedings, and thus HB 4041 proceedings may involve dif- ferent parties than in the underlying criminal action. See Branstetter, 332 Or at 402. Additionally, the computation or recomputation of a defendant’s sentence, which are ODOC functions, are “factual findings and legal matters that were not at issue in defendant’s underlying criminal cases and do not concern the propriety of his original criminal prosecu- tions.” Dunham, 336 Or App at 37. Accordingly, we conclude that the HB 4041 proceeding is a special statutory proceeding, and the resulting order is appealable under ORS 19.205(5). Thus, defendant’s appeal may proceed in the regular course. B. Because this is a special statutory proceeding, we must address the effect, if any, of Shank. At oral argument, in addition to the appealability issue, we requested that the parties address the effect, if any, of Shank, on whether appointed counsel may represent defendant in this case. In response to our invitation at oral argument for supplemental memoranda, defendant filed a post-argument memorandum addressing the issue, and the state provided notice that it was not filing a response. In Shank, the trial court approved a criminal defen- dant’s request for appointed counsel but entered a limited judgment requiring the defendant to contribute toward the cost, pursuant to ORS 151.487.10 206 Or App at 282. The public defender’s office, which was then known as the Office of Public Defense Services or OPDS, filed a notice of appeal from that limited judgment on behalf of the defendant. Id. On appeal, the state sought (1) dismissal of the defendant’s appeal for lack of jurisdiction because the costs imposed pursuant to ORS 151.487 were civil in nature and thus not appealable under former ORS 138.053 (2015), repealed by Or Laws 2017, ch 529, § 26, governing appeals in criminal pro- ceedings, or (2) alternatively, if the motion to dismiss was denied, a ruling that OPDS did not have the authority to represent the defendant because the appeal was from a civil judgment. Id. 10 Under ORS 151.487 if a person is able to pay the administrative costs of appointed counsel in full or in part, the court “shall enter a limited judgment requiring that the person pay” that amount. 656 State v. DeJesus In Shank, we first agreed that the limited judgment was not appealable under former ORS 138.053 (2015) and proceeded to analyze whether the judgment was civil or criminal in nature.11 Id. We concluded that, although it was entered in the defendant’s criminal case, the limited judg- ment was civil in nature, and that it was appealable under ORS 19.205(5), because it was “sufficiently separate and dis- tinct from the criminal action to qualify as a judgment in a special statutory proceeding.” Id. at 285. We then consid- ered whether OPDS was authorized to represent the defen- dant, given that ORS 138.500(1)—the statute providing for appointed counsel—allowed appointed counsel for appeals only if “a defendant in a criminal action or a petitioner in a proceeding [for post-conviction relief] wishes to appeal from an appealable adverse final order or judgment of a cir- cuit court.” Id. at 286 (quoting ORS 138.500(1)) (brackets in Shank; emphases omitted). We explained that, because we had concluded that the judgment was not appealable under ORS chapter 138, it necessarily was not a judgment “in a criminal action,” and therefore OPDS could not repre- sent the defendant. Id. at 287. Thus, application of Shank would suggest that the Oregon Public Defense Commission or OPDC, the current name of the public defender’s office, would not be eligible for appointment in this special statu- tory proceeding. There is, however, a significant statutory change since our decision in Shank. In the time since Shank was decided, the legislature has made substantial revisions to Oregon’s criminal appeals statutes, particularly in 2017 through Senate Bill (SB) 896 (2017). In recognition of the appellate courts’ holdings that “a trial court’s disposition of certain statutory proceedings that take place within or related to a criminal case, but are not appealable under the statute creating the proceeding or under ORS chapter 138 generally, may be appealable under ORS 19.205(5),” SB 896 added a provision, codified at ORS 138.065, which pro- vides, “A party may appeal a judgment or order deciding a special statutory proceeding as provided in ORS 19.205.” 11 At the time, former ORS 138.053 (2015) described the types of judgments and orders that were appealable in criminal actions, and it did not include a judg- ment for costs of appointed counsel. Cite as 354 Or App 644 (2026) 657 Amendments to ORS Chapter 138 Relating to Appeals in Criminal Cases: Report (SB 896), Oregon Law Commission Direct Criminal Appeals Work Group, June 5, 2017, 4 (SB 896 Report). Shank relied on the general proposition that “ORS 138.500(1) does not authorize the appointment of coun- sel” in a special statutory proceeding because “the judgment being appealed is not appealable under ORS chapter 138.” Shank, 206 Or App at 287. That is no longer the case. Now, pursuant to ORS 138.065, an order deciding a special stat- utory proceeding may be appealable.12 Accordingly, we con- clude that, given the statutory amendments to ORS chapter 138, Shank is not applicable to an appeal from an order on an HB 4041 petition, and appointed counsel may represent defendant in this appeal. Appeal to proceed; defendant’s opening brief is due 49 days from the date of this opinion. 12 We recognize that, despite its charge to address the appealability of spe- cial statutory proceedings in criminal cases, “after addressing and resolving other important topics, the Work Group determined it could not do justice to the complex policy considerations relating to appealability, reviewability, appellate procedures, and scope of review on appeal of ‘special statutory proceedings’ in a proposed bill for the 2017 legislative session.” SB 896 Report at 4. Thus, the Work Group recommended that the Oregon Law Commission authorize the Work Group to continue meeting and propose legislation in 2018. Id. It is not clear that there was any legislation introduced in 2018, and, more importantly, ORS 138.065 has not been amended since its enactment. Regardless, the amendments made by SB 896 are sufficient to conclude that the broad conclusion in Shank is no longer applicable in the circumstances presented by this case.