A Book from the Library of Defense

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by: Msell@mpdlaw.com • September 26, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary Sofia, OCDLA



Motion to Suppress—Stop – Youth was stopped by show of authority

Youth was stopped when an officer entered into a private bedroom without explanation, accused youth’s companion of using methamphetamine, and then asked youth and his companion if they had anything illegal on them, where youth and companion were aware that other officers were searching the house.

Here, an officer encountered youth and a young woman in the back bedroom of a house known for drug activity while he and four other officers were searching the house for a suspected parole violator. The officer did not explain to the youth or the young woman why the officers were searching the house or why he had come into the bedroom. Rather, after entering the bedroom, the officer noticed that youth and the woman appeared to be under the influence of a stimulant, told the woman that she “need[ed] to stay off the meth,” asked them their names and if they had anything illegal on them. Youth said that he had a pipe on him. The officer asked youth if he would produce it, and youth did. The pipe contained methamphetamine residue.

The Court concludes that a reasonable person, regardless of age, would not have felt free to in the circumstances presented here. Specifically, the officer’s conduct of coming into a private bedroom without explanation and apparent accusation that the woman was using methamphetamine created a coercive atmosphere that reasonably conveyed to the youth and the woman that they were suspected of illegal drug use and not free to leave. The officer’s subsequent question, whether youth and the woman had anything illegal on them, and the woman and youth’s awareness that other officers were present in the house contributed to the coercive atmosphere.

Notably, the Court declines to decide whether youth’s age should factor into the whether he reasonably believed he was not free to leave, but does not foreclose it from future consideration. The Court reasons that this case is not a good case for resolving that issue because (1) that issue had not been preserved in the trial court, (2) youth was nearly 18 years old at the time of the stop, and (3) regardless of his age, it was reasonable for youth to believe that he was not free to leave.

State v. K.A.M, 361 Or 805 (2017) (Kistler, J.)


Sentencing—Probation/PPS Violation

When a defendant’s conduct violates both a condition of post-prison supervision and a condition of probation, and the defendant is sanctioned for his violation of the post-prison supervision, the trial court has the authority to separately sanction the defendant for violating his probation.

Here, the defendant was serving a term of probation sentence and a term of post-prison supervision. The conditions of defendant’s probation and post-prison supervision both stated that he could not change his residence without permission. Defendant changed his residence without permission and received a three-day jail sanction for his violation of the conditions of post-prison supervision. Defendant argued that ORS 137.593(3) precluded the trial court from imposition a sanction for the probation violation. The trial court revoked defendant’s probation and imposed a term of prison and post-prison supervision.

The Court concludes that, by its plain terms, ORS 137.593(3) only limits a sentencing court’s authority when a probationer has completed sanctions for violating probation. The statute does not limit a sentencing court’s authority to revoke probation when the person has completed sanctions for something other than a probation violation. The relevant context and legislative history of ORS 137.593(3) bolsters what is apparent from the text.

State v. Richards, 361 Or 840 (2017) (Landau, J.)



Hindering Prosecution—MJOA—Sufficient evidence to prove defendant knowingly “concealed” a person

Search and Seizure—Probable Cause—Officer had probable cause to believe that defendant had committed crime of hindering of prosecution

There was sufficient evidence for a fact finder to conclude that defendant had “concealed” a person wanted on a warrant based on defendant’s repeated denials that he knew the person or knew that anyone had fled. Here, a detective had gone to Haussler’s property to arrest Haussler on a warrant after receiving a tip that Haussler was there. The detective saw a pickup truck at the property and saw a person who he believed to be Haussler flee after he arrived. Defendant and a woman were also at the property. The detective told defendant that he had a warrant for Haussler’s arrest. Defendant repeatedly denied knowing Haussler and, when asked who had fled, did not acknowledge that anyone had run. Later, after Haussler was found nearby and arrested, defendant was arrested for hindering prosecution. Drugs were found on defendant at the jail.

Defendant argued that there was insufficient evidence that defendant had “concealed” Haussler. The court disagrees, holding that a reasonable fact finder could find that defendant’s lies were intended to conceal Haussler’s physical presence by misleading the officer into believing that Haussler had not been recently present and was not likely present nearby. For the same reasons, the court concludes that the detective had probable cause to arrest defendant for hindering prosecution.

State v. Carpenter, 287 Or App 720 (2017) (DeVore, J.)


Evidence—Vouching Sentencing—Statutory maximum sentence

Detective’s statements during a taped interview asserting that defendant was lying and the victims were truthful were admissible because they were not offered to prove the credibility of defendant or the witnesses but were offered as context for defendant’s statements.

The state charged the defendant with multiple sexual offenses. At trial, the state sought to introduce a recording of a detective’s interview with defendant in which defendant denied the allegations and the detective repeatedly asserted that defendant was lying and the victims were truthful. Defendant objected to the admission of the statements, asserting that they were hearsay and improperly commented on the credibility of witnesses. After the state introduced the recording, defendant also asked for a mistrial or that the jury be instructed to disregard the statements. After the presentation of evidence, the trial court instructed the jury that the detective’s recorded interview statements “are not to be considered for their truth” and “should not be considered comments upon the credibility of any person or witness.”

The court holds that under State v. Chandler, 360 Or 323 (2016), the trial court did not err in admitting the statements. Here, as in Chandler, the detective’s statements were not offered for the truth about his beliefs about the truthfulness of defendant or the victims, but to provide context for defendant’s statements, specifically, defendant’s reaction to being confronted. Additionally, the trial court instructed the jury not to consider the detective’s statements for their truth or as comments on the credibility of defendant or other witnesses.

The trial court erred when it imposed 100 months’ imprisonment plus 20 years’ post-prison supervision on defendant’s convictions on two counts of first-degree unlawful sexual penetration in the judgment. The aggregate duration of incarceration and post-prison supervision was limited to a maximum statutory indeterminate sentence length of 20 years. The state concedes the error.

State v. Garcia Rocio, 287 Or App 745 (2017) (Duncan, J.)


Juvenile Dependency– Court erred in changing permanency plan based on facts extrinsic to court’s jurisdiction

Where sole basis for juvenile court’s jurisdiction over child, as to father, was father’s substance abuse, court erred in changing permanency plan from reunification to adoption based on child’s estrangement from father.

In April 2013, the juvenile court asserted jurisdiction over father’s three children based on father’s substance abuse. In August 2016, DHS initiated reintegration therapy between father and one of his children, M, because M had not had in-person contact with father in over two and a half years. M refused to engage in further therapy, refused to have contact with father, and, at the hearing at issue on appeal, said that she wanted to be adopted and threatened to run away if adoption was not pursued. The parties stipulated that father was sober and had been for some time. The juvenile court changed the permanency plan from reunification to adoption notwithstanding fact that father had remedied his substance abuse problem.

The court reversed, explaining that the juvenile court had improperly relied on evidence relating to the estrangement between M and father, a circumstance that was neither explicitly stated nor fairly implied by the jurisdictional petition or judgment. In particular, the juvenile court erred in believing that it had the authority to change the plan based on the estrangement between M and father on the basis that the estrangement was a consequence of the substance abuse where the condition giving rise to the estrangement no longer exists and the consequence of the condition is not stated or fairly implied in the jurisdictional judgment. The juvenile court also erred in concluding that its paramount duty to consider the child’s health and safety justified the change: that mandate does not authorize a juvenile court to change a child’s plan based on risks posed by an unadjudicated risk or circumstance.

Department of Human Services v. T.L., 287 Or App 753 (2017) (Duncan, J.)


Parole & Post-Prison Supervision—Substantial Evidence and Substantial Reason

The board’s order finding that petitioner/defendant had not proven by a preponderance of the evidence that he was likely to be rehabilitated within a reasonable period of time and declining to change petitioner’s terms of confinement were supported by substantial evidence and substantial reason. Petitioner’s contention that the board erred in deferring his next murder review hearing should be deferred four years was moot.

The board’s findings that evidence that petitioner was not likely to be rehabilitated in a reasonable period of time was supported notwithstanding evidence of his remorse and acceptance of responsibility, psychologists’ reports stating he would not violate the law and would conform to conditions of parole, no negative disciplinary history, and family support upon release. The board relied on counterbalancing evidence of petitioner’s demeanor and testimony at the review hearing, which demonstrated a lack of empathy and a selfish and entitled attitude. Additionally, the board could reasonably find that the psychologists’ conclusions favorable to petitioner were unreliable. The court further concluded that the board could reasonably find that petitioner lacked insight and failed to accept responsibility for his criminal behavior, particularly his history of domestic violence. On the question of whether he had a mental or emotional disturbance that made him a danger to the health and safety of the community, the board could reasonably rely on one psychologist’s testimony that petitioner is narcissistic and could benefit from counseling if he were released. Finally, in concluding that petitioner lacked an adequate parole plan, the board did not rely solely on the fact that petitioner had just under $1,000 in savings, but pointed to petitioner’s lack of forethought and intent to rely on food stamps and other subsidies. The board’s order was supported by substantial reason.

The court did not reach the question of whether the board had erred in deferring his next murder review for four years because he has now received a hearing and, hence, resolution of that issue would have no practical effect.

Wille v. Board of Parole, 287 Or App 709 (2017) (Devore, P.J.)


Post-Conviction Relief—“Suitability” of PCR Counsel—Trial court abused its discretion in denying substitution of counsel based on incorrect understanding of counsel’s duties following a Church motion

The trial court abused its discretion when it denied petitioner’s/defendant’s request for substitute counsel after appointed counsel took a position adverse to petitioner in response to petitioner’s Church motion. Petitioner, who was represented by counsel, filed a pro se motion pursuant to Church v. Gladden, 244 Or 308 (1966), raising 27 claims for PCR relief that counsel had not included in the amended petition. Responding to the trial court’s request, PCR counsel filed a response to petitioner’s motion detailing why counsel had rejected those 27 claims. Petitioner moved to have substitute counsel appointed because his counsel was advocating for the state. The trial court rejected the motion, reasoning that counsel was required to respond to the claims petitioner raised in the Church motion.

The PCR court abused its discretion when it denied petitioner’s request for substitute counsel because it was mistaken as to counsel’s obligations in response to a Church motion and, therefore, was also mistaken as to what constituted “suitable” counsel. A Church motion is a procedural mechanism that allows a PCR petitioner to avoid the preclusive effect of failing to raise an issue original or amended petition; it does not necessitate a response by the court or counsel. Petitioner was denied suitable counsel when his counsel advocated against his interests, even though that advocacy resulted from counsel’s mistaken belief of what was required of him in response to a Church motion.

Lopez v. Nooth, 287 Or App 731 (2017) (James, J.)

Post-Conviction Relief—Statute of Limitations—Evidence that grounds for PCR could not reasonably be raised in original or amended petitions sufficient to survive summary judgment under escape clause to two-year limitations statute

Petitioner/defendant could not have reasonably raised the grounds asserted in her petition within the two-year filing period, and it was error for the trial court to grant the state’s motion for summary judgment.

A petition for PCR relief must be filed within two years the entry date of the judgment of conviction if no appeal is taken unless the grounds asserted in the petition “could not reasonably have been raised in the original or amended petition.” ORS 138.510(3). The statutes contemplate that a petitioner’s pro se petition will initiate PCR proceedings, after which counsel will be appointed to represent the petitioner if the petitioner is eligible for appointed counsel, and will file an amended petition.

Viewed in the light most favorable to petitioner, petitioner received ineffective assistance of trial and appellate counsel. Petitioner then initiated a case for post-conviction relief in a manner contrary to the procedure contemplated by the statutes by filing an affidavit of indigency. Petitioner was appointed counsel. Petitioner’s counsel advised the court that he planned to file a petition before the lapse of the two-year filing deadline, but he failed to file a petition by that date. A petition for PCR was eventually filed, two months after the two-year filing period lapsed.

Because it was reasonable for petitioner to assume that her PCR counsel would file the petition within the two-year filing period, and after PCR counsel failed to meet that obligation, it was too late for petitioner to object to that failure, and because in the underlying due process concerns implicated in the unique posture of this case, the court holds that petitioner’s claims fall within the escape clause in ORS 138.510(3) and the trial court erred in granting summary judgment against petitioner.

Winstead v. State of Oregon, 287 Or App 737 (2017) (Duncan, J.)