A Book from the Library of Defense

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by: Rankin Johnson IV • March 21, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • POST-CONVICTION RELIEF - Inadequate assistance of counsel

Post-conviction petitioner received inadequate assistance of counsel, because counsel advised him to plead guilty to an offense that required deportation without advising him that deportation was required following conviction.

Petitioner, a noncitizen, was accused of delivery of methamphetamine. Pursuant to his lawyer’s advice, he pleaded guilty. The conviction requires deportation. Counsel provided inadequate assistance by failing to advise petitioner that deportation was mandatory, The court rejected the state’s argument that the lawyer made a reasonable tactical choice. The lawyer testified that a plea-bargain was the most likely way for petitioner to receive probation, and probation was the most likely way to avoid the notice of immigration authorities. But the lawyer did not consult with immigration counsel and did not know that deportation was mandatory for this conviction. The court also rejected the state’s argument that petitioner was not prejudiced because he did not prove that he would have sought a trial but for counsel’s bad advice. The post-conviction court did not rule on that issue. The Court of Appeals reversed and remanded for a determination of prejudice.

Garcia-Navarro v. State 290 Or App 587 (March 7, 2018) (Hadlock, J.)

  • APPEALS -- Scope of remand

The tagline “reversed and remanded” leaves to the trial court’s discretion the scope of new proceedings on remand.

In an earlier opinion, the court reversed and remanded a judgment in a civil suit based on a ruling on the admissibility of a compilation of figures which, it had held, was not admissible as a business record.

On reconsideration, plaintiff-appellant argued that the Court of Appeals’ disposition related to damages, and the jury finding of defendant’s liability should stand. Defendant-respondent argued that the evidential error infected the finding on liability. The Court of Appeals declined to decide, and left the scope of further proceedings to the trial court on remand.

Reconsideration allowed, former opinion clarified.

Morgan v. Valley Property and Casualty 290 Or App 595 (March 7, 2018) (Hadlock, J.)


A post-conviction court found in favor of petitioner and permitted him to file a late notice of appeal, which he filed five years later after other unsuccessful litigation relating to his conviction. The Court of Appeals found that the notice of appeal was untimely and dismissed the appeal.

Although the post-conviction judgment did not specify a time within which to appeal, the court construed it as requiring appeal within ordinary time limits. The post-conviction court could have issued a judgment or order affecting those time limits, but did not do so. The court noted that, if the additional procedures were necessary before the appeal, there were procedural mechanisms to accomplish that purpose. Appeal dismissed.

State v. Perez 290 Or App 609 (March 7, 2018) (DeVore, J.)

  • TRIAL PROCEDURE -- Motions in arrest of judgment

When the trial court failed to rule on defendant’s motion in arrest of judgment within 55 days of the entry of judgment, the defendant properly treated the motion as denied on the 55th day and filed a notice of appeal within 30 days thereafter. The Court of Appeals granted defendant’s motion to determine appellate jurisdiction, and decided that the appeal would proceed.

State v. Meiser 290 Or App 617 (March 7, 2018) (DeVore, J.)

  • POST-CONVICTION RELIEF - Statutes of limitations

Defendant’s deportation to Mexico as a result of an allegedly infirm conviction was not a basis to toll the two-year statute of limitations within which to file a post-conviction petition.

In 2009, defendant pleaded guilty to delivery of methamphetamine, was convicted, and was immediately deported to Mexico. He reentered the United States, was arrested by ICE in 2014, and sought post-conviction relief. He sought to avoid the two-year statute of limitations based on allegations that he was illiterate, spoke little English, and had no practical way to learn about post-conviction procedures or file for post-conviction relief while in Mexico. The court rejected his argument, explaining that the post-conviction statute was tolled only if information necessary to a late-filed petition was not “available.” Because information about post-conviction was available regardless of petitioner’s personal circumstances, the statute of limitations was not tolled and the petition was untimely. The post-conviction court’s dismissal was affirmed.

Hernandez-Zurita v. State 290 Or App 621 (March 7, 2018) (Lagesen, J.)

  • TRIAL PROCEDURE -- Motions in to correct the judgment

ORS 138.083 did not provide trial court authority to delete a “life in prison” term from the judgment of conviction.

Defendant was convicted of murder in 1998. According to the judgment, he was sentenced to life in prison with a 25-year minimum. Under the statutes in effect at the time, the Board of Parole had the authority to parole people serving sentences for aggravated murder, but not murder, and therefore defendant’s sentence was a “true life” sentence. In 1999, the Court of Appeals found that the sentence for murder was constitutionally disproportionate and reduced one such sentence to 25 years in prison followed by lifetime supervision. In 1999, the legislature amended the pertinent statutes to permit the Board of Parole to parole those convicted of murder without regard for the date of the crime.

Defendant argued that his judgment of conviction contained an erroneous term of life in prison. The court disagreed, reasoning that it had previously decided that the erroneous term was corrected by the statutory changes and accordingly the term in defendant’s judgment was no longer erroneous. The trial court’s grant of the motion to correct the judgment was reversed.

State v. Hubbard 290 Or App 640 (March 7, 2018) (Garratt, J.)

  • TRIAL PROCEDURE -- Motions for judgment of acquittal

Defendant was accused of committing theft “on or about July 21,” but the evidence at trial established that the theft occurred on July 19. The trial court did not err by denying defendant’s motion for judgment of acquittal, because the two-day difference was “neither material nor prejudicial.” Affirmed.

State v. Stavenjord 290 Or App 669 (March 7, 2018) (Aoyagi, J.)

  • SEARCH AND SEIZURE -- Inventory

Inventory policy that authorized opening all closed containers was invalid, and thus could not be used to support an inevitable-discovery argument, even as to evidence that was not in a closed container.

Defendant was arrested for harassment. During his arrest, police searched his pocket and located methamphetamine, and no exception to the warrant requirement justified that search. In response to defendant’s motion to suppress, the state argued that the evidence would have been inevitably discovered pursuant to the jail’s inventory policy. The inventory policy required opening closed containers, which, the court held, rendered it constitutionally overbroad. Accordingly, a search pursuant to the policy was not a “lawful” search satisfying the inevitable discovery doctrine. In a concurring opinion, Judge DeVore wrote that whether a search pursuant to a valid part of an inventory policy was rendered unlawful because parts of the inventory policy were invalid was not presented by this case in light of the record and the parties’ positions, and that question should be decided in an appropriate case in the future.

State v. Steele 290 Or App 675 (March 7, 2018) (Powers, J. DeVore, J., concurring)

  • POST-CONVICTION RELIEF - Statutes of limitations

Post-conviction court did not err by dismissing as untimely a post-conviction petition that, petitioner alleged, was not timely filed because of his mental disabilities. Mental disabilities are not a basis to toll the post-conviction statute of limitations. The court rejected without discussion an “undeveloped” argument that due-process principles supported the late filing.

Colon-Lebron v. Taylor 290 Or App 708 (March 7, 2018) (Per curiam)

  • POST-CONVICTION RELIEF -- Church hearings

Post-conviction court did not err by failing to direct counsel to raise issues that petitioner personally wanted raised. Rather, issues that petitioner identified that were not raised by counsel may be raised in a later PCR proceeding.

Worden v. Premo 290 Or App 710 (March 7, 2018) (Per curiam)