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Oregon Appellate Court – October 11, 2017

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by: Msell@mpdlaw.com • October 13, 2017 • no comments

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

EVIDENCE

Evidence—Insanity Defense—Timeliness of Notice

Defendant may file notice of insanity defense “any time” prior to trial if defendant had just cause not to file the notice at time of not-guilty plea.

The state charged defendant with six counts of custodial misconduct. Defendant was arraigned on August 29, 2014, and entered a not guilty plea at that time. She later moved to set over her January 2015 trial date in part because a psychological evaluation report was not complete. Trial was set over for April 28. At the end of March, defense counsel informed the prosecutor that the evaluator had not yet completed his report and that there was a possible insanity defense. The evaluator completed his report on April 8 and provided it to defense counsel the next day. The following day, defendant filed notice under ORS 161.309 of her intent to present evidence of insanity. The state moved to prohibit defendant from presenting the insanity evidence, arguing that defendant failed to demonstrate just cause for waiting until 18 days before trial to give notice. The trial court agreed and granted the state’s motion, reasoning that because defendant knew about the possibility of raising the insanity defense in mid-March, she unreasonably delayed in waiting to file written notice. In view of the text, context, and legislative history of ORS 161.309, the court concludes that so long as a defendant shows just cause for not filing the notice at the time of entering her plea, the statute permits the filing of the notice at “any time” before trial. Here, the trial court erred when it precluded defendant from presenting an insanity defense because she did not show that she filed the notice at the earliest possible time after entering her plea. It was undisputed that defendant could not have filed her notice at the time of the plea and had “just cause” not to do so. Thus, the statute permitted her to file it “any time” before trial.

State v. Robinson, 288 Or App 194 (2017) (Lagesen, P.J.)

SENTENCING

Sentencing—Negotiated Plea Agreements—Trial Court’s Authority to Depart

Trial court erred in departing from negotiated plea agreement that it had agreed to impose without giving defendant an opportunity to affirm or withdraw the plea.

After reaching a negotiated settlement, defendant entered a no contest plea to four counts of an indictment. Defendant’s plea petition included a notation of “936” next to the recommended sentence on two counts. During sentencing, the trial court announced that it would follow the parties’ recommendations. A temporary sentencing order stated that defendant would receive “Senate Bill 936 credits.” In a second sentencing order, the trial court indicated that defendant was not to be considered for reductions under ORS 137.750(1) other than “Good Time.” The parties’ reference to “936” credits clearly referenced all of the programs enumerated in ORS 137.750(1). Because the trial court had earlier indicated its agreement with the negotiated sentence, it erred in departing from that agreement without giving defendant an opportunity to affirm or withdraw his plea.

State v. Johnson, 288 Or App 220 (2017) (DeHoog, J.)