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Oregon Appellate Court, October 7, 2020

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by: Rankin Johnson • October 8, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

SENTENCING - Fines, fees, and assessments

Sentencing court erred by imposing $25 probation-violation assessments without announcing them in open court. Reversed and remanded.

State v. Vierria 307 Or App 46 (October 7, 2020) (DeVore, Mooney dissenting) (Klamath County, Adkisson)

DIVERSION - Compliance and completion

Trial court did not err by continuing diversion period after finding defendant had violated the agreement, and by later dismissing in accordance with the agreement. Affirmed.

Defendant consumed alcohol on a few occasions, but had completed treatment and the victim's panel and paid her financial obligations. Upon finding that defendant had consumed alcohol, the court ordered that she complete treatment again. The court observed that it could continue diversion after a violation upon finding that the defendant acted in "good faith," and held that an addict's relapse did not prevent a finding of good faith. The court further found that the statutes providing for an extension of the diversion period necessarily contemplated some sort of violation or failure by the defendant.

Mooney, dissenting, would have held that drinking alcohol, in violation of the diversion agreement, precluded a good-faith extension. In his view, once the defendant drank alcohol during the probation period, the defendant could never be in compliance with the diversion agreement.

State v. Zook 307 Or App 49 (October 7, 2020) (DeVore) (Clackamas County, Van Dyk)

PROBATION - Appeal and review

Order imposing a probation sanction short of revocation is not appealable. Appeal dismissed.

The court explained that orders imposing probation, imposing probation conditions, and revoking probation can be appealed, but an intermediate sanction (such as two-day jail sentences imposed following a violation) are not appealable.

State v. Hunt 307 Or App 71 (October 7, 2020) (Tookey) (Multnomah County, Bloch and Greenlick)

POST-CONVICTION RELIEF - Limiting instructions

Trial counsel's failure to request a limiting instruction, that crimes against one victim could not be considered in determining guilt as to another victim, was ineffective and prejudicial. Reversed.

The court observed that a limiting instruction was mandatory, upon request, and that trial counsels explanation for not seeking one did not show that counsel made a legitimate tactical choice.

DeVore, dissenting, would have held that petitioner had a burden of proof regarding prejudice which he failed to carry.

Delgado-Juarez v. Cain 307 Or App 83 (October 7, 2020) (DeHoog, DeVore dissenting in part) (Malheur County, Pratt)

POST-CONVICTION RELIEF - Objections to evidence

Post-conviction court erred in finding that counsel was ineffective in failing to object to leading questions. Reversed.

In the underlying trial, sex-abuse victim's testimony included short responses to many yes-or-no questions. In the post-conviction court, petitioner did not offer evidence regarding counsel's reasoning, or about how the evidence would have developed differently with an objection.

The post-conviction court also erred in finding that trial counsel should have objected to the prosecutor's vouching for the victim's credibility in closing argument in a court trial.

Behrle v. Taylor 307 Or App 126 (October 7, 2020) (Powers) (Umatilla County, McCormick)

EVIDENCE - Prior consistent statements

Trial court erred in admitting victim's prior consistent statements when defendant did not open the door. Reversed.

The court explained that general attacks on the witness's credibility do not open the door to prior-consistent-statement rehabilitation.

State v. Smith 307 Or App 1 (October 7, 2020) (Mooney) (Coos County, Stone)

FAPA AND STALKING ORDERS - Qualifying contacts

Poking petitioner in the chest during argument regarding then-existing landlord-tenant relationship did not qualify as alarming contact. Reversed.

T.M.E. v. Strope 307 Or App 156 (October 7, 2020) (Mooney) (Yamihll County, Mercer)

DOUBLE JEOPARDY - Retrial following mistrial

State conceded that, when court granted mistrial over defense objection after state's witness did not appear, second trial constituted double-jeopardy. Reversed.

State v. Stephenson 307 Or App 189 (October 7, 2020) (Per curiam) (Tillamook County, Hill)