Oregon Appellate Court - December 27, 2012

by: Jwestover and Abassos • December 27, 2012 • no comments

Sentencing – Murder – The McClain Window

The appropriate sentence for a murder committed between February 17th, 1999 and October 23rd, 1999 is a determinate sentence of 300 months followed by lifetime parole. February 17, 1999 is when State v McClain declared the sentence for murder to be unconstitutionally disproportionate to aggravated murder in that the greater crime allowed for the possibility of parole but the lesser crime did not. October 23, 1999 is when the legislature fixed the problem by allowing for the possibility of parole on murder. The legislative fix, however, does not apply to crimes committed prior to its enactment. Such a sentence would be a violation of federal and state ex post facto protections. Thus, for murders committed during “the McClain window”, the appropriate sentence is the one that Mr. McClain received: a determinate sentence of 300 months prison followed by lifetime parole. Not an indeterminate sentence of 300 months followed by the possibility of parole. State v Giles

Delinquency – Judicial Authority to Dismiss

A court's authority under ORS 419C.261(2) to dismiss a petition extends to a time after a youth has been adjudicated to be within the juvenile court's jurisdiction and after the youth has attained 25 years of age. Moreover, there is no statutory authority to restrict the court's authority in post-adjudication cases to circumstances where the person remains within the court's jurisdiction. Thus, the court may consider a motion to dismiss filed by a 26 year old who is no longer under the jurisdiction of the court. Remanded for the juvenile court to consider the motion to dismiss. State v CEB

DUII – Request for Independent Blood Test – Reasonable Opportunity

A person may request an independent blood test, pursuant to ORS 813.150, prior to the breath test being given. However, officers provide a reasonable opportunity to obtain a blood test so long as they don’t prevent or hinder the person from obtaining a blood test. The burden is on the defendant to establish that she was denied a reasonable opportunity. Here, defendant requested a blood test prior to the breath test but took no further action. The police were neither obligated "to remind defendant of her earlier request or facilitate it". State v Davis

Dependency – Findings at Permanency Hearing – Preservation

A court errs in not including the findings required for a permanency judgment under ORS 419B.476(5). That error does not have to be preserved where, as here, the first opportunity to know that the juvenile court's failure to include the required written findings does not occur until after the permanency hearing. The error is not harmless merely because the hearing was to continue, rather than change, the permanency plan. In either case, the court must decide between competing options: maintain the status quo or change it. DHS v TH

PCR – Motion for Relief from Summary Judgment

A petitioner seeking relief from a summary judgment is required to address the merits of the motion and demonstrate that he had a colorable response to the motion. Here, defendant’s PCR attorney committed an unauthorized act in breach of his duties by informing the post-conviction court (without consulting petitioner) that petitioner would not be filing a response to defendant’s summary judgment motion. The PCR court granted summary judgment and petitioner, from prison, filed a motion for relief. However, that motion merely reiterated the substance from the original post-conviction relief petition. It did not sufficiently respond to defendant’s motion such that the appellate court could find that the PCR court abused its discretion. Ballinger v Nooth

Per Curiam Opinions

Remedy – HB 3508 supplemental judgment of Ineligibility

The appropriate appellate remedy where the court issued an unauthorized supplemental judgment finding a person ineligible for HB 3508 good time credits is to dismiss the appeal so the court can vacate the supplemental judgment. Per curiam. State v Leisteko

Merger – Theft of a Car and Theft of the Car’s Parts Merge

A conviction for theft of a car’s parts merges into a conviction for theft of the car itself. See State v. Noe. Per curiam. State v Joynt

Merger – UUV and PSV Merge

Possession of a Stolen Vehicle (PSV) merges into Unauthorized Use of a Vehicle. See State v. Noe. Per curiam. State v Joynt.