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Oregon Appellate Court – November 29, 2017

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by: Mary A. Sell • December 4, 2017 • no comments

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

APPEALS

Appeals—Justiciability—Mootness

Appeal of contempt judgment that imposed no sanctions is moot because judgment does not carry sufficient social stigma and only mere possibility that judgment might carry future adverse consequences.

Defendant appeals a judgment of punitive contempt based on the finding that he violated the terms of a restraining order and assigns error to the trial court’s denial of his judgment of acquittal. The trial court found defendant in contempt, but did not impose any sanctions. The state argues that the appeal is moot. The court concludes that, absent a sufficiently stigmatizing sanction, a judgment for contempt alone does not carry sufficient social stigma to prevent mootness. Additionally, mere possibility that contempt judgment may have future adverse legal consequences insufficient to prevent appeal from being moot.

State v. Welch, 289 Or App 118 (2017) (Shorr, J.)

CRIMINAL PROCEDURE

Criminal Procedure—Setting Aside Record of Arrest—Arrest for Contempt

When a defendant is charged with the “crime” of contempt and that charge is later dismissed, ORS 137.225(1)(b) (2013) authorizes trial court to set aside the record of arrest.

Defendant appeals from a trial court’s denial of his motion to set aside the record of his arrest for punitive contempt of court, challenging the trial court’s conclusion that ORS 137.225(1)(b) (2013) does not apply to him. Defendant, an attorney, was issued a citation in lieu of arrest for the “offense” of contempt of court for disobeying an order of a circuit court. By information, the state charged him with five counts of the “crime” of contempt, a “U-Misdemeanor.” The contempt charges were later dismissed. Defendant moved under ORS 137.225 for the trial court to set aside the record of his arrest, and the state objected contending that ORS 137.225 only applies to criminal arrests and contempt is not a crime. The trial court denied defendant’s motion. The court concludes that it does not need to determine whether the legislature intended to include charges for contempt under ORS 137.225(1)(b) because, regardless of whether it is actually a crime, the state charged defendant with the “crimes” of contempt.

State v. Simrin, 289 Or App 68 (2017) (Egan, J.)

Criminal Procedure—Waiver of Appointed Counsel—Intentional waiver

Defendant intentionally waived counsel by rejecting option to have public defender appointed and expressing intent to proceed pro se.

In a consolidated case, defendant appeals judgments of conviction for resisting arrest, driving under the influence of intoxicants, and failure to carry or present a license. He assigns error to the trial court’s conclusion that he waived counsel and to the license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing. Before trial, the court appointed a public defender. At a later hearing, defendant asked the court to remove the public defender because he believed the attorney was incompetent. The trial court asked defendant if he wanted to hire his own attorney or proceed pro se, and defendant stated that he wanted additional time to retain counsel. At the following hearing, defendant stated that he had been unable to find competent counsel and asked for more time so he could prepare for his defense. Defendant refused to sign a waiver of attorney form. The trial court advised defendant of the dangers of self-representation. On appeal, defendant disputes that he intentionally waived counsel. The court disagrees, concluding that defendant’s rejection of the option for a court-appointed attorney and statements that he needed time to prepare his case demonstrate that he intentionally waived counsel. The trial court did not announce that it was imposing the $15 license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing, but imposed them for the first time in the judgment. In those circumstances, imposition of the fees was error.

State v. Warren, 289 Or App 77 (2017) (Egan, J.)

EVIDENCE

Evidence—Expert Testimony—Qualifications of Expert

Witness’s experience working with people with traumatic brain injuries qualified her to testify as an expert as to whether defendant’s behavior was consistent with her observations of people with traumatic brain injuries.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) and assigns error to the trial court’s ruling limiting the testimony of a defense expert, a registered nurse, about defendant’s traumatic brain injury (TBI). Defendant’s theory at trial was that the trooper who arrested him for DUII misinterpreted defendant’s TBI symptoms as signs of intoxication. A video recording of defendant’s performance on the field-sobriety tests was played to the jury. The trial court precluded the defense expert, a registered nurse, from testifying that defendant’s behavior on a field sobriety video was consistent with her observations of patients who have TBI. The defense witness had cared for or supervised the care of approximately 20 patients with TBI over her 10 years as a nurse and she frequently works with and regularly observes people with TBI The court concludes that because the witness’s experience gave her “specialized knowledge” regarding the symptoms and mannerisms of TBI patients, she was qualified to testify whether defendant’s behavior in the video was consistent with the behavior she has observed in TBI patients over the course of her career. Because the trial court’s error in excluding the expert testimony was not harmless, the court reverses for a new trial.

State v. Woodbury, 289 Or App 109 (2017) (DeHoog, J.)

JUVENILE DEPENDENCY/JUVENILE DELIQUENCY

Juvenile Dependency—Motion to Set Aside Guardianship

In light of the Court of Appeals’ reversal of the underlying permanency judgments, the juvenile court lacked discretion to deny motion to set aside the guardianship judgments.

Mother appeals from juvenile court orders denying her motions to set aside guardianship of her three children. She argues that in light of the appellate court’s decision in DHS v. S.M.H., 283 Or App 295 (2017), which reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the court was required to grant her motions. While the appeal in S.M.H. was pending, DHS filed petitions for the juvenile court to establish a guardianship and appoint aunt and uncle, who the children had been living with, as legal guardians. Mother filed motions to stay, asserting that she was likely to prevail on appeal, and the trial court denied the motions. At the hearing on DHS’s motions to establish guardianship, mother stipulated to the orders appointing aunt and uncle as guardians with the understanding that she was still appealing the change in the permanency plan from reunification to adoption. After the appellate court reversed the underlying permanency judgments, mother moved to set aside the guardianship orders and requested a new permanency hearing. The juvenile court denied mother’s motions. The court concludes that the juvenile court lacked discretion to deny motion’s motions to set aside the guardianship judgments because, in view of the reversal in S.M.H., there was no permanency plan of guardianship, which is a prerequisite to the establishment of guardianship.

S.H., 289 Or App 88 (2017) (Egan, P.J.)

SEARCH & SEIZURE

Motion to Suppress—Attenuation—Preservation

State failed to preserve argument that evidence discovered during unlawful extension of a traffic stop was attenuated from that illegality.

This is a consolidated appeal on remand from Oregon Supreme Court for reconsideration in light of State v. Unger, 356 Or 59 (2014). In its earlier decision, the Court of Appeals reversed and remanded the trial court’s judgments, holding that the trial court had erred in denying defendant’s motion to suppress evidence obtained during a warrantless search of a vehicle in which defendant had been a passenger. Evidence presented at the suppression hearing established that an officer stopped the Jeep in which defendant was a passenger because the brake lights were not working and because defendant was not wearing a seat belt. Defendant told the officer he was on parole for armed robbery. The officer obtained the identifications of the defendant and the driver, ran a records check, and requested backup. The officer retained the identifications and requested consent to search the Jeep, which the driver gave. The officer found drugs and scales during that search, which led to the state charging defendant with possession of methamphetamine.

Defendant challenged the search in the trial court, arguing that the officer unlawfully extended the stop when he asked for consent to search instead of proceeding with the traffic investigation. In response, the state argued that defendant did not have a protected privacy interest in the Jeep and, alternatively, that the officer would have discovered the evidence even if defendant had not been unlawfully detained. The trial court ruled that the officer had unlawfully extended the stop by requesting consent to search, but denied suppression on the ground that defendant did not have a protected privacy interest in the Jeep.

The parties essentially reiterated their arguments on appeal. The Court of Appeals reversed and remanded, holding that defendant had a protected privacy interest in the Jeep and that the officer unlawfully seized defendant when he ceased processing the traffic violation and requested consent to search and that the state had failed to establish that the evidence would have been inevitably discovered during the course of a lawful search based on the driver’s consent. The Court also held that the state had failed to prove that the evidence was attenuated from the unlawful detention. The state petitioned for review, and the Supreme Court vacated the court’s decision and remanded for reconsideration in light of Unger. On remand, the court concludes that it had unnecessarily held that the state had failed to prove attenuation because the state never argued attenuation in the trial court or on appeal. Thus, in view of the court’s earlier holdings that defendant had a protected privacy in the Jeep and the state failed to prove that the evidence would have been inevitably discovered, the court reverses and remands.

State v. Knapp, 289 Or App 139 (2017) (Duncan, J.)

SENTENCING

Sentencing—Probation Revocation—Consecutive Incarceration Sanctions

If the court revokes multiple probationary sentences for separate supervision violations, the court has the authority to impose concurrent or consecutive incarceration sanctions for each term of probationary supervision that is revoked.

Defendant appeals from a judgment revoking four terms of probationary supervision, three of which are to be served consecutively, based on defendant’s admission that he had committed two probation violations. Defendant argues that the trial court erred in imposing three consecutive terms of incarceration because he committed only two supervision violations. The court concludes that the text and context of the controlling rule, OAR 213-012-0040(2), gives the sentencing court authority to impose either consecutive or concurrent incarceration sanctions any time that more than one term of probationary supervision is revoked for separate violations.

State v. McFerrin, 289 Or App 96 (2017) (Tookey, J.)