Oregon Appellate Court, January 15, 2020
Summarized by Rankin Johnson, OCDLA
TRIAL PROCEDURE - Subpoena enforcement
State's appeal. Victim is not a party, such that his failure to appear when subpoenaed is a basis for dismissal. Reversed and remanded.
State v. Lorenzo 301 Or App 713 (January 15, 2020) (DeVore) (Clackamas County, Norby)
POST-CONVICTION RELIEF - Summary judgment elements
Counsel's failure to call a witness to buttress an impeached expert witness was not moot. Reversed.
At the underlying criminal trial petitioner offered testimony of an expert to support his theory that he was too intoxicated to form intent, and used retrograde extrapolation to estimate petitioner's BAC. The state impeached the expert by pointing out that defendant might have drunk more after the events at issue. In post-conviction, petitioner argued that counsel had been ineffective in failing to call petitioner's wife, who would have testified that petitioner had not drunk any additional alcohol. The post-conviction court granted summary judgment to the state. In reversing, the Court of Appeals rejected the trial court's holding that the evidence was "moot" and the state's argument that the wife's testimony was cumulative.
Yann v. Bowser 301 Or App 720 (January 15, 2020) (Lagesen) (Umatilla County, Pratt)
POST-CONVICTION RELIEF - Successive petitions
Petitioner was not permitted to raise, in a subsequent petition, claims that counsel could have raised in the initial petition, regardless of whether counsel erred. Affirmed.
Walton v. Myrick 301 Or App 740 (January 15, 2020) (Hadlock) (Umatilla County, Pratt)
SENTENCING - Terms of probation
Probation conditions relating to alcohol use not appropriate following conviction for unlawful use of a motor vehicle and menacing. Reversed and remanded.
State v. Hullinger 301 Or App 746 (January 15, 2020) (Per Curiam) (Lincoln County, Sanders)
RESTITUTION - Unjust enrichment
Where glasses cost $933 several years ago, most of which was paid by insurance, but the victim no longer had insurance to pay for replacements, $979 in restitution for breaking glasses would not unjustly enrich the victim. Affirmed.
State v. D.S. 301 Or App 753 (January 15, 2020) (Per Curiam) (Multnomah County, Holmes Hehn)
HABEAS CORPUS - Dismissal on court's own motion
Although the court erred by failing to provide reasons for its dismissal, the error was harmless when the petition failed to state a claim. Affirmed.
Johnson v. Doe 301 Or App 756 (January 15, 2020) (Per Curiam) (Washington County, Erwin)