S058335, Opinion — State v. Heisser

12
Argued and submitted November 10, 2010, decision of Court of Appeals affirmed;
judgment of circuit court reversed, and case remanded to circuit court
for further proceedings March 10, 2011
STATE OF OREGON,
Petitioner on Review,
v.
DAVID LINN HEISSER,
aka David Linn Dauphine,
Respondent on Review.
(CC 200522450; CAA131308; SC S058335)
249 P3d 113
Defendant entered into a written plea agreement with the state that provided
that the state was "free to seek" upward departure sentences, while defendant was
"free to seek" presumptive and concurrent sentences. When defendant subse-
quently argued that the state had failed to timely provide the required notice of its
intent to seek upward departure sentences, the trial court concluded that the par-
ties had not had a "meeting of the minds" and so no plea agreement had been
formed. Held: (1) The parties in this case had mutually assented to the terms of an
unambiguous written plea agreement, so the parties did create an enforceable plea
agreement; and (2) the terms of the plea agreement did not prohibit defendant from
challenging the timeliness of the state's notice of intent to seek upward departure
sentences.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further
proceedings.
On review from the Court of Appeals.*
Paul L. Smith, Assistant Attorney General, Salem, argued
the cause for petitioner on review. With him on the briefs
were 	John 	R. 	Kroger, 	Attorney 	General 	and 	Mary H.
Williams, Solicitor General.
Robin A. Jones, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for respondent on
review. With her on the brief was Peter Gartlan, Chief
Defender.
Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
* 	Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 232 Or
App 320, 222 P3d 719 (2009).
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

Cite as
DE MUNIZ, C. J.
The decision of the Court of Appeals is affirmed. The judg-
ment of the 	circuit court is reversed, 	and 	the case is
remanded to the circuit court for further proceedings.

14 	v. Heisser
DE MUNIZ, C. J.
The issue in this case is whether defendant and the
state entered into a plea agreement, and if so, the terms of
that agreement. The parties executed a written plea agree-
ment providing that, at sentencing, the state was "free to
seek [upward] departure sentences" within certain limits
and, in turn, defendant was "free to seek presumptive sen-
tences." At sentencing, defendant challenged the timeliness
of the state's notice of intent to seek upward departure sen-
tences. The trial court concluded that the plea agreement
barred defendant from making that argument. The trial
court also concluded that there had been no "meeting of the
minds" between the parties, because they each subjectively
held different understandings about the plea agreement's
meaning. For that reason, the trial court withdrew defen-
dant's previously entered guilty pleas and set the case for
trial. Defendant was found guilty by a jury and was sen-
tenced to a longer period of incarceration than would have
been permitted under the plea agreement.
Defendant appealed, 	and 	the 	Court of Appeals
reversed, concluding that the trial court lacked statutory
authority to order the withdrawal of defendant's guilty pleas.
State v. Heisser, 232 Or App 320, 222 P3d 719 (2009). We
allowed the state's petition for review and now affirm the
Court of Appeals, albeit on different grounds. On review, we
conclude that the trial court applied an incorrect legal stan-
dard when it concluded that there was no "meeting of the
minds" between the parties and ordered the withdrawal of
defendant's guilty pleas. Instead, we hold that the parties
entered into an effective plea agreement and that defendant's
challenge regarding the timeliness of the state's notice to
seek upward departure sentences did not violate the terms of
the plea agreement.
The facts relevant to this court's review are undis-
puted. Defendant was indicted on one count of first-degree
robbery, two counts of second-degree theft, and one count of
unauthorized use of a vehicle. Before trial, a judge facilitated
plea negotiations between defendant and the state. 1 Those
1 A judge (other than the trial judge) "may participate in plea discussions."
ORS 135.432(1)(b) (2005). "Participation by a judge in the plea discussion process
shall be advisory, and shall in no way bind the parties." Id.

Cite as 350 Or 12 (2011) 	15
plea negotiations resulted in a written plea agreement,
which was drafted by the prosecutor. The agreement pro-
vided that defendant would plead guilty to both counts of
second-degree theft, to the single count of unauthorized use
of a vehicle, and to the lesser-included offense of third-degree
robbery. Regarding defendant's sentence, paragraph 8 of the
plea agreement stated, in part:
"The state is free to seek departure sentences that total no
more tha[n] 50 months prison on the felony offenses. The
defense is free to seek presumptive sentences and all con-
current sentences which would result in as little as
13 months prison."
With regard to defendant, the written plea agree-
ment also stated that: "No one has made any threats to me or
promises other than the plea agreement to get me to enter
this plea. My plea of guilty is not based on any representa-
tions other than those outlined in this petition." Both the
prosecutor and defendant signed the agreement.
On December 13, 2005, the parties appeared at a
hearing before the judge who had facilitated the agreement.
At that hearing, the prosecutor proffered the written plea
agreement, which, he represented, "covers our negotiations
in this matter." The prosecutor reiterated that "the details of
these negotiations are contained in the plea petition." That
judge accepted defendant's guilty pleas. The judge then
stated that "I have been bound by these negotiations which
will leave you * * * the option to argue for less than the
State's going to be arguing for."
A hearing was held before the same judge on the
morning of December 15. That hearing apparently was not
recorded. It is uncontested, however, that a dispute arose
between the state and defendant regarding proof of an aggra-
vating circumstance that would justify upward departure
sentences. Although defendant waived his right to have that
issue decided by a jury, defendant refused to stipulate to the
existence of the aggravating circumstance.
Later on December 15, the parties appeared before
another judge for trial on the disputed aggravating factor and
for sentencing. At that hearing, defense counsel asserted that

16 	State v. Heisser
the state had failed to give defendant timely notice that it
intended to rely on an "enhancement fact" to increase defen-
dant's sentence, as required under ORS 136. 765. 2 Specifi-
cally, defendant contended that the notice had not been given
"after" the filing of the accusatory instrument, as provided by
ORS 136. 765, because the notice had been filed before the
indictment had been issued.
That judge rejected defendant's argument. However,
sua sponte, the judge invited the state to withdraw from the
plea agreement. The judge stated:
"I don't mean that to dismiss [defendant's] argument. It's
actually a creative and a good argument, in-not in any
moral sense, but in the sense that it's his job to do his job as
a lawyer. And it would concern me enough that I would be,
if the State wanted to say that with that argument out
there hanging on appeal, that the circumstances of the
negotiations weren't acceptable to it anymore, and it just
wanted to start back to square one, I would be willing to say
let him withdraw his [plea] and start back to square one,
and let's have a trial and see what happens. But I'm pre-
pared to rule denying [defendant's argument], and I'll give
the State its choice as to what it wants to do at this point."
The 	state, 	in turn, 	asserted that defendant's argument
regarding the timeliness of the notice was
"clearly contrary to what was contemplated by the parties
in this particular negotiation[], and unless defense coun-
sel's willing to withdraw the plea [sic], I think that this mat-
ter should just be reset on the trial docket."
When defense counsel expressed some confusion, the
judge asserted that the state was arguing as follows:
2 ORS 1:36.765 provides, in part:
"In order to rely on an enhancement fact to increase the sentence that may
be imposed in a criminal proceeding, the state shall notify the defendant of its
intention to rely on the enhancement fact by:
"* * 	* *
"(2) Within a reasonable time after filing the accusatory instrument, pro-
viding written notice to the defendant of the enhancement fact and the state's
intention to rely on it."

Cite as 350 Or 12 (2011)
"He [the prosecutor] says that*** your legal objection
to enhanced sentencing is not consistent with the negotia-
tions. He's moving that there's not a meeting of minds in
terms of the plea, and he's moving to ask that your plea of
guilty be withdrawn and you be permitted to go to trial on
the whole thing."
17
The prosecutor clarified that he so moved only "to the extent
that they are going to continue with this objection that
they're raising." Defendant refused to withdraw his argu-
ment about the lack of timely notice, contending that the
terms of the agreement did not bar him from making that
legal argument.
The judge stated that he was "treat[ing] this as a
motion by the State pursuant to ORS 135.365/31 and any
other statutes that might be applicable to cause the defen-
dant to withdraw his plea." The judge then ruled:
"Here, it appears to the State and to the Court that the
defendant is proceeding in a manner which is not consistent
either with the plea agreement or, quite frankly, the inter-
ests of justice. And accordingly, the plea of guilty previously
entered will be withdrawn. A plea of not guilty is entered on
behalf of the defendant. And again, I believe the Court has
that right."
The next day defendant filed a motion for specific
performance of the plea agreement. Defendant contended
that the plea agreement was a plain and unambiguous con-
tract and that he had fully performed his obligations under it.
Defendant's motion for specific performance was
heard by a third judge. Before that judge, defendant asserted
that the written plea agreement did not limit the arguments
that he could make in challenging the state's attempt to
obtain upward departure sentences; therefore, he could chal-
lenge the timeliness of the state's notice of intent to seek
upward departure sentences. That judge rejected defendant's
assertion:
3 ORS 135.365 provides:
"The court may at any time before judgment, upon a plea of guilty or no
contest, permit it to be withdrawn and a plea of not guilty substituted
therefor."

18 	State v. Heisser
"* * * I don't think you can say that [a restriction on the
scope of arguments] wasn't in the plea petition because it's
there implicitly in paragraph eight when it says that [the
prosecutor] can argue for a departure sentence. Well, then
that-or they're free to seek a departure sentence.
"Then that to me, and to [the judge that facilitated the
agreement], and I believe to [the prosecutor], meant that
you weren't going to then say later: Oh, but we're not agree-
ing to that departure factor and we want a trial on that. Or
you didn't*** give the notice the right way."
The court also stated: "[l]f the State is free to argue for
50 months then they're free to argue for it. That's what you
bargained for."
The court also held that, because the prosecutor had
a different subjective understanding than did defendant,
there had been no "meeting of the minds" and therefore the
parties had not entered into a plea agreement, stating:
"This isn't a game of gotcha. Okay? And that's what
upset [the judge who facilitated the agreement] so much
about this. It seems clear that the parties expected that the
State would be free to ask for up to 50 months, and it seems
clear to me that everybody in the room, except maybe your
client, expected that you wouldn't be making a timeliness
objection or any other kind of objection to that departure
allegation notice that had been filed."
The judge later stated:
"I've talked to [the judge who facilitated the agreement]
about this. I've reviewed what happened in court with him.
I know what happened in court with me. And I don't think
there's any question that there was not a meeting of the
minds. And if-that's very clear to me. That's very clear
beyond any question. There was no meeting of the minds." 4
That judge concluded that, because there was no
meeting of the minds, there was no plea agreement that
could be specifically enforced. The judge offered defendant
4 Evidence of the facilitating judge's understanding of the agreement eventu-
ally became part of the record. Counsel met with that judge and the parties subse-
quently stipulated "that [the judge who facilitated the agreement] had the under-
standing that the prosecution was free to argue for departure sentences without
legal impediment."

Cite as 350 Or 12 	19
the opportunity to enter again into the plea agreement, with
the understanding that the agreement would not allow
defendant to object to the timeliness of the notice, provided
that defendant agreed to again enter guilty pleas. Defendant
refused the judge's offer and the case was set for trial.
Trial began the next day, January 5, 2006. At that
time, defendant moved to reinstate his guilty pleas, contend-
ing that they had been improperly withdrawn. He also moved
to dismiss the first-degree robbery charge, asserting that his
guilty plea to third-degree robbery had placed defendant in
double jeopardy as to that count. The trial court denied both
motions. A jury found defendant guilty on all counts.
At sentencing, defendant moved to be sentenced in
accordance with the plea agreement, with an upper sentence
limit of 50 months. The trial court rejected that argument
and sentenced defendant to 90 months in prison for first-
degree robbery, with a consecutive sentence of 26 months in
prison for unauthorized use of a vehicle. Defendant also
received 12-month concurrent sentences on each of the two
second-degree theft counts.
On 	appeal 	to 	the 	Court 	of Appeals, 	defendant
asserted that the trial court had erred in withdrawing defen-
dant's guilty pleas. Defendant contended that the plea agree-
ment did not prohibit him from challenging the timeliness of
the state's notice of intent to seek upward departure sen-
tences and that the trial court lacked authority to withdraw
his guilty pleas over his objection.
In a divided opinion, the Court of Appeals agreed
with defendant that the trial court lacked authority to with-
draw the guilty pleas without defendant's consent. Heisser,
232 Or App at 327. The majority concluded that ORS 135.365
does not allow the trial court to withdraw a defendant's guilty
plea over the defendant's objection; it grants that authority
only to the defendant. Id. at 327-28. The majority declined to
reach the state's argument that the trial court had inherent
authority to vacate a guilty plea that had been wrongly
accepted, because the trial court "did not purport to exercise
any inherent authority to vacate or reconsider a previous
order." Id. at 329. The majority concluded that the case

20 	State v. Heisser
should be remanded for the trial court to "reinstate defen-
dant's guilty pleas and sentence defendant in accordance
with [the] plea agreement." Id. at 332. A dissenting judge
asserted that defendant was estopped to obtain relief on
appeal, because he had declined the opportunity to reinstate
the plea agreement by pleading guilty a second time. Id. at
333-39 (Edmonds, J., dissenting).
As noted, we allowed the state's petition for review.
The state now concedes that the Court of Appeals correctly
concluded that ORS 135.365 did not authorize the trial court
to withdraw defendant's guilty plea over defendant's objec-
tion. Instead, the state argues in this court that there was no
plea agreement because there was no meeting of the minds
between the parties. The state also asserts that the trial
court retained inherent authority to reconsider its decisions
to approve the plea agreement and to accept defendant's
guilty plea, just as it has inherent authority to reconsider
other orders that it may make.
In response, defendant argues that, once a defen-
dant pleads guilty as part of a plea agreement, the trial court
cannot withdraw the guilty plea over the defendant's objec-
tion, even if the underlying plea agreement is invalid. Defen-
dant also asserts that the plea agreement in this case unam-
biguously permitted him to challenge the timeliness of the
state's notice of intent to seek upward departure sentences,
and that the trial court incorrectly concluded that there had
not been a "meeting of the minds" that prevented the forma-
tion of a plea agreement.
For reasons that we will explain, we do not need to
decide whether a trial court has inherent authority to recon-
sider a prior decision to approve a plea agreement and accept
a guilty plea as part of a plea agreement between the state
and a criminal defendant. That is so because, even ifthe trial
court had that authority, the trial court erred in this case in
determining that the parties had not reached a plea agree-
ment. We conclude that the trial court applied the wrong
legal standard in determining whether there had been a
"meeting of the minds" with respect to the plea agreement.
Contrary to the trial court's understanding, the "meeting of
the minds" of the parties requires an examination of the

Cite as 350Or12 	21
objective representations of the parties, not their subjective
or unspoken intents.
Applying the correct standard, we reject the trial
court's conclusion that the plea agreement prohibited defen-
dant from challenging the timeliness of the state's notice to
seek upward departure sentences. We agree with defendant
that the text of the plea agreement did not foreclose defen-
dant from making that argument.
We begin by first examining the nature of plea
agreements and their role in our judicial system. As both the
United States Supreme Court and this court have explained,
plea agreements are crucial to the proper functioning of the
criminal justice system. See Santobello v. New York, 404 US
257, 260-61, 92 S Ct 95, 30 L Ed 2d 427 (1971) (characterizing
plea agreements as both "essential" and "highly desirable");
State v. McDonnell, 310 Or 98, 103, 794 P2d 780 (1990) ("the
legislature [has] concluded that plea negotiation is an essen-
tial component of an efficient and effective judicial system").
The ability to resolve criminal charges through plea agree-
ments offers numerous benefits both to the criminal justice
system as a whole and to criminal defendants in particular.
Some benefits of the use of plea agreements include:
"It eases the administrative burden of crowded court dock-
ets; it preserves the meaningfulness of the trial process for
those cases in which there is a real basis for disputes; it fur-
nishes defendants a vehicle to mitigate the system's harsh-
ness, whether the harshness sterns from callous infliction of
excessive punishment or from the occasional inequities
inherent in a system oflaw based upon general rules; and it
affords the defense participation in and control over an
unreviewable process that often gives the appearance of fiat
and arbitrariness."
William F. McDonald, Plea Bargaining: Critical Issues and
Common Practices 4 (1985) (internal quotation marks and
citation omitted); see also Santobello, 404 US at 261 (articu-
lating other benefits of plea agreements, 	including the
"prompt and largely final disposition of most criminal cases"
and "avoid[ing] much of the corrosive impact of enforced idle-
ness during pretrial confinement for those who are denied
release pending trial").

State v. Heisser
Since 1973, an Oregon prosecutor's authority to
enter 	into 	plea 	negotiations 	and 	plea 	agreements 	has
been "formally organize[d] 	and 	control[led]" by statute.
McDonnell, 310 Or at 102-03. As part of a plea agreement,
the prosecutor may give concessions to the defendant in
exchange for a plea of guilty or no contest. ORS 135.405(3). 5
Those concessions can include, among others, agreeing to
seek dismissal of other charges if a defendant pleads guilty to
a charged offense; agreeing to seek dismissal of the charged
offense if defendant pleads guilty to another reasonably
related offense; and agreeing to make favorable recommen-
dations on sentencing. Id.
If the parties reach a tentative plea agreement, the
nature of the agreement must be disclosed to the trial judge
no later than the time at which the defendant enters a plea of
guilty. See ORS 135.390(2) (2005) (nature of the agreement
must be disclosed to the trial judge at the time of tendering a
plea); ORS 135.432(2) (2005) (explaining the circumstances
under which the nature of the agreement may be disclosed to
the trial judge prior to the tender of the plea). 6 The statutory
scheme governing plea agreements contemplates different
kinds of agreements. Under certain plea agreements the trial
judge must give the plea agreement "due consideration," but
is not bound by the agreement as to sentencing and may
make an independent determination as to the appropriate
sentence to be imposed. ORS 135.432(4). However, in other
5 ORS 135.405 provides, in part:
"(3) The district attorney in reaching a plea agreement may agree to, but
is not limited to, one or more of the following, as required by the circumstances
of the individual case:
"(a) To make or not to oppose favorable recommendations as to the sen-
tence which should be imposed if the defendant enters a plea of guilty or no
contest to the offense charged;
"(b) To seek or not to oppose dismissal of the offense charged if the defen-
dant enters a plea of guilty or no contest to another offense reasonably related
to the defendant's conduct; or
"(c) To seek or not to oppose dismissal of other charges or to refrain from
bringing potential charges if the defendant enters a plea of guilty or no contest
to the offense charged."
Both ORS 135.390 and ORS 135.432 were amended in 2009. Or Laws 2009,
ch 356, § 1; Or Laws 2009, ch 178, § 33. Those amendments are not relevant to this
decision, and all references are to the 2005 version of those statutes.

Cite as 350 Or 12 	23
plea agreements approved by the trial court, the court is
required to "impose sentence as provided in the agreed dis-
position recommendation" provided for in the plea agree-
ment. ORS 135.390(4)(a). 7 In that kind of agreement, should
the judge conclude that the sentencing concessions in a plea
agreement are inappropriate, "the [judge] shall so advise the
parties and allow the defendant an opportunity to withdraw
the plea." ORS 135.390(4)(b); see also ORS 135.432(3) (to the
same effect when the trial judge has been informed of the
nature of the agreement prior to the plea being tendered and
originally concurred in the outcome).
Although this court has not specifically addressed
the proper method for interpreting a plea agreement, con-
tract law generally (but not invariably) controls. As the
United States Court of Appeals for the Fourth Circuit has
stated:
"In the process of determining whether disputed plea
agreements have been formed or performed, courts have
necessarily drawn on the most relevant body of developed
rules and principles of private law, those pertaining to the
formation and interpretation of commercial contracts."
United States v. Harvey, 791 F2d 294, 300 (4th Cir 1986)
(citation omitted). See McDonnell, 310 Or at 114-16 (Fadeley,
J., concurring in part and dissenting in part) (providing list of
authorities 	applying 	contract 	law 	to 	plea 	agreements);
Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin
S. Kerr, 5 Criminal Procedure § 21.2(d), at 602-05 (3d ed
2007) (citing authorities).
Contract law is not necessarily the beginning or the
end of the analysis, however. Criminal cases involve consti-
tutional and statutory rights not ordinarily found in con-
tracts between private parties, and those rights at times may
override contractual principles. See Harvey, 791 F2d at 300-
01 (so explaining). Thus, for example, a defendant's signature
on a written plea agreement is not necessarily sufficient to
7 Because of the 2009 amendment, former ORS 135.390(4) today is numbered
ORS 135.390(5). See Or Laws 2009, ch 356, § 1 (adding a new subsection (3) to the
statute).

24 	State v. Heisser
create a binding agreement; the trial court still may not
accept the guilty plea without first determining that the plea
is "voluntarily and intelligently made." ORS 	135.390(1)
(court cannot accept a guilty plea without so determining);
see ORS 135.390(4)(a) (in specific case of a plea agreement,
"the court shall determine whether the plea is voluntarily
made"). 8
In this case, the trial court analyzed the plea agree-
ment in terms of contract law and decided that the agree-
ment was not enforceable, because there was no "meeting of
the minds." The term "meeting of the minds" is a "much-
abused metaphor" that one commentator has suggested
should be "abandoned" for purposes of clarity. E. Allan
Farnsworth, I Farnsworth on Contracts§ 3.6, 209, 209 n 2 (3d
ed 2004); see also Lawrence M. Friedman, A History of
American Law 245 (1973) (noting that the phrase " 'meeting
of the minds' * * * must not be taken too literally"). The
requirement of a "meeting of the minds" is in fact simply the
requirement that there be mutual assent to the terms of the
agreement. See Bennett v. Farmers Ins. Co., 332Or138, 148,
26 P3d 785 (2001) (noting that mutual assent "historically
was considered as the 'meeting of the minds' requirement");
Arthur Linton Corbin, 1 Corbin on Contracts§ 4.13 (Joseph
M. Perillo ed., rev ed 1993) (discussing relationship between
mutual assent and "meeting of the minds").
As 	Corbin 	on 	Contracts 	notes, 	an 	enforceable
contract does not necessarily require a "meeting of the
minds":
"There is no actual 'meeting of the minds,' even though
the terms of the bargain are reduced to writing and signed
by both parties, if one of them did not in fact read or under-
stand the written terms. Yet the signatory is generally
bound."
Id. § 4.13 at 636 (footnote omitted).
The requirement that a defendant's guilty plea be "voluntarily and intelli-
gently made," could impose a subjective element, outside of contract law, regarding
a defendant's internal understanding of the meaning and consequences of the plea
agreement. However, that issue is not before us, and we express no opinion regard-
ing it.

Cite as 350 Or 12 	25
In Kitzke v. Turnidge, 209 Or 563, 307 P2d 522
(1957), this court discussed the misleading nature of the term
"meeting of the minds." In that case, the trial court had
refused to give a jury instruction regarding "meeting of the
minds" that seemingly directed "that each of the two parties
had to have in mind the same idea and intent before the jury
could find that they effected a contract." Id. at 572-73. This
court concluded that such an instruction would have errone-
ously stated the legal standard:
"The law of contracts is not concerned with the parties'
undisclosed intents and ideas. It gives heed only to their
communications and overt acts."
Id. at 573. " 'Agreement consists of mutual expressions; it
does not consist of harmonious intentions or states of mind.'"
Id. 	(quoting Corbin on Contracts § 19). See also Kabil
Developments Corp. v. Mignot, 279 Or 151, 154-57, 566 P2d
505 (1977) (discussing objective and subjective theories of
contract, and concluding ultimately that the correct test for
contract formation was "of manifested assent regardless of
subjective intent").
''When considering a written contractual provision,
the court's first inquiry is what the words of the contract say,
not what the parties say about it.'' Eagle Industries, Inc. v.
Thompson, 321Or398, 405, 900 P2d 475 (1995). Accordingly,
courts should first "examine[] the text of the disputed provi-
sion, in the context of the document as a whole. If the provi-
sion is clear, the analysis ends.'' Yogman v. Parrott, 325 Or
358, 361, 937 P2d 1019 (1997). 9 The meaning of an unambig-
uous contractual provision is a question oflaw. See Valenti v.
Hopkins, 324 Or 324, 331, 926 P2d 813 (1996) ("As a general
rule, the construction of a contract is a question of law.
Unambiguous contracts must be enforced according to their
terms * * *."); Eagle Industries, 321 Or at 405 ("In the
absence of an ambiguity, the court construes the words of a
9 That method of interpretation has a statutory basis. See ORS 42.230 (courts
interpreting written documents are "not to insert what has been omitted, or to omit
what has been inserted"); ORS 41.740 (the parol evidence rule limits the circum-
stances under which courts may consider anything other than the terms of a writ-
ten contract to determine its meaning).

v. Heisser
contract as a matter of law."). The determination whether a
contractual provision is ambiguous also is a question oflaw.
Valenti, 324 Or at 331-32; Eagle Industries, 321 Or at 405.
In this case, we conclude that the trial court applied
an incorrect legal standard when it determined that the par-
ties' differing subjective understandings of the plea agree-
ment meant that there was no "meeting of the minds." Both
parties here signed an unambiguous written plea agree-
ment.10 We conclude that there was mutual assent to the
terms of the agreement-that the parties did have a "meeting
of the minds" as that term is correctly understood-and the
trial court erred in concluding that there was no plea
agreement. 11
Having concluded that the parties did enter into an
enforceable plea agreement, we now must determine the
terms of the agreement. The trial court determined that the
written plea agreement prohibited defendant from arguing
10 Because we conclude that the plea agreement here was unambiguous, we
need not address the consequences if the plea agreement had contained an ambig-
uous term.
11 In rare cases. a party's unilateral mistake as to the meaning of the contract
will justify rescission in equity. As this court has explained:
"We believe that in this State an offer and an acceptance are deemed to
effect a meeting of the minds, even though the offeror made a material mistake
in compiling his offer, provided the acceptor was not aware of the mistake and
had no reason to suspect it. But ifthe offeree knew of the mistake, and if it was
basic, or ifthe circumstances were such that he, as a reasonable man, should
have inferred that a basic mistake was made, a meeting of the minds does not
occur."
Rushlight Co. v. City of Portland, 189 Or 194, 244, 219 P2d 732 (1950). The mistake
at issue must be one of fact. See Gardiner v. Meiling, 280 Or 665, 674-75, 572 P2d
1012 (1977) ("A mistake justifying rescission must be a misapprehension as to a
fact which is material and basic to the agreement."). Furthermore, the mistake
must be basic: It must be "fundamental in character," relating to a" '(flundamental
[a]ssumption'" or "'the intrinsic nature of the bargain.'" See Shop. Centers v.
Stand. Growth Prop., 265 Or 405, 422-23, 509 P2d 1189 (1973) (quoting Williston,
13 Contracts§ 1544, at 94 (3d ed)) (discussing doctrine of mutual mistake).
Here, the state would not be entitled to relief under that doctrine. The prose-
cutor was not mistaken as to any underlying facts. As we will explain, he was
apparently mistaken as to the legal effect of the plea agreement. Additionally, the
prosecutor's mistake was not basic. Even under the prosecutor's understanding of
the agreement, he knew that the state was not guaranteed upward departure sen-
tences and that defendant would be arguing for lesser sentences. Under those cir-
cumstances, defendant's ability to challenge the timeliness of the state's notice was
neither "basic" nor "fundamental" to the agreement.

Cite as 350 Or 12 (2011) 	27
against the timeliness of the state's notice to seek upward
departure sentences. We come to the opposite conclusion.
As noted, the plea agreement stated:
"The state is free to seek departure sentences that total no
more tha[n] 50 months prison on the felony offenses. The
defense is free to seek presumptive sentences and all con-
current sentences which would result in 	as little as
13 months prison."
The trial court reasoned that the state's right to seek
upward departure sentences impliedly limited the argu-
ments that defendant could make in response to the state's
argument. However, the state's entitlement to seek upward
departure sentences was no guarantee that the court would
impose them. Nothing in the text of the agreement prohibited
defendant from pointing out any mistakes the state might
have made in laying the groundwork for upward departure
sentences. Nor does anything in the agreement limit the legal
or factual arguments that defendant could make in favor of
presumptive sentences and against departure sentences.
Defendant's agreement to permit the state to argue for a
longer sentence did not waive his opportunity to make coun-
terarguments supporting a shorter sentence.
We must give effect to all provisions of the plea
agreement. Under those provisions, the state was free to seek
upward departure sentences, and defendant was free 	to
oppose them. Defendant argued that the state's failure to give
timely notice legally prohibited the state from obtaining
upward departure sentences. Nothing about that argument
kept the state from seeking upward departure sentences,
although it might have kept the state from obtaining them.
The trial court was free to evaluate both parties' arguments
based on the applicable law and to rule accordingly.
In this case, the only real issue was a simple ques-
tion of contract interpretation: Did the plea agreement allow
defendant to challenge the timeliness of the notice? We have
concluded that the trial court erred in holding that the plea
agreement barred defendant from making the lack-of-notice
argument. We also have concluded that the trial court

State v. Heisser
applied an incorrect legal standard when it sua sponte con-
cluded that, because the prosecutor had a different under-
standing of the agreement than did the defendant, there was
no "meeting of the minds" and therefore the parties had not
reached a plea agreement. As a result, the trial court erred in
withdrawing defendant's guilty pleas. The order withdraw-
ing defendant's guilty pleas and the subsequent judgment of
conviction and sentence are reversed. We remand for the trial
court to reinstate defendant's original guilty pleas and to con-
duct a sentencing hearing in accordance with the terms of the
plea agreement.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.