Oregon Appellate Court - February 6, 2013

by: Jwestover and Abassos • February 6, 2013 • no comments

Three Strikes Sex Offense Law (ORS 137.719)—What’s a Prior Sentence?

ORS 137.719 requires a presumptive sentence of life without the possibility of parole for individuals who are convicted of a felony sex offense and have been “sentenced for sex crimes that are felonies at least two times prior to the current sentence.” A prior “sentence” refers “to dispositions that were ‘sentences’ at the time of their imposition.” Here, the defendant had two prior felony sex crimes in Texas. Texas law does not view them as ‘sentences’ at the time of their disposition, but Oregon law does. This issue was not preserved at trial, and the appellate court found that because this issue was reasonably in dispute, no plain error had occurred. Similarly unpreserved was the argument that the OARs give the trial court discretion to impose less than the presumptive life sentence. Affirmed. State v. Molette, ___ Or App ___ (Feb. 6, 2013).

Expungement—A Non-Traffic Violation is a Conviction

A non-traffic violation is a conviction for the purposes of the expungement rule that a person may not have any “other” convictions in the preceding 10 years. Here, defendant pled no contest, in 2010, to Public Urination, a municipal code violation. Thus, his 2007 conviction is not eligible to be set aside until 2020 (10 years from the violation conviction). State v. Roberts, ___ Or App ___ (Feb. 6, 2013).

Warrantless Entry to Land—Absence of a “No Trespassing” Sign

An open gate and two signs reading “PRIVATE PROPERTY” (as opposed to “no trespassing”) were insufficient to indicate the defendant’s clear intent to exclude uninvited visitors. Thus, an officer’s warrantless entry onto defendant’s property to investigate the possession of a stolen car was not unlawful. State v. Cam, ___ Or App ___ (Feb. 6, 2013)

Enhancement—Commercial Drug Offenses

ORS 475.900 allows for possession of one controlled substance to be used as an enhancement factor to elevate possession of any other controlled substance to a commercial drug offense (CDO). Here, defendant’s possession of more than eight grams of methamphetamine was appropriately used as a factor to enhance charges for possession of marijuana and MDMA to CDO charges. Also, even though the enhancement factors in each case are exactly the same, CDO convictions for different drugs do not merge because the element of each drug is distinct. State v. Cam, ___ Or App ___ (Feb. 6, 2013).

Uncharged Sexual Conduct Between Defendant and Child Victim

In a case involving sexual abuse of a child, where the crime is reported long after its occurrence, evidence of prior uncharged sexual contact between the defendant and child is permissible non-character evidence relevant to:

• Explain delay in reporting crime
• Provide the context of a long-term “relationship”
• Show the defendant’s sexual predisposition to the particular child.

State v. Stephens, ___ Or App ___ (Feb. 6, 2013)

If a Witness Waives Privilege, the Protections of OEC 513 are also Waived

OEC 513 prevents parties from commenting on or drawing inferences from the invocation of a privilege. “Privilege” includes invoking the right to remain silent, even though silence is not one of the privileges in the evidence code. But when a person voluntarily waives the underlying privilege, they also waive the protections of OEC 513. Here, the court finds that the witness waived attorney-client privilege by voluntarily testifying about her reasons for not talking to the police. Thus, the state was allowed to argue in closing that the witness remained silent and did not cooperate with detectives because she was protecting the defendant. State v. Stephens, ___ Or App ___ (Feb. 6, 2013).

The Maximum Sentence on any Crime is the Statutory Maximum

Because the maximum indeterminate sentence for a B felony is 120 months, it is plain error to sentence a defendant to a longer period. Here, 144 months for an Assault II. Since the state has no valid interest in defendant serving an unlawful sentence, the court uses its discretion to remedy the error. State v. Aitken, ___ Or App ___ (Feb. 6, 2013).

Merger—Sufficient Pause—Assault

A sufficient pause occurs only if one assault ends before the other begins. Here, defendant stabbed Victim 1 in the back and yelled for everybody to stay out of his business. He then began moving towards Victim 2. Victim 1 intercepted defendant, and in the resulting scuffle defendant stabbed Victim 1 in both arms. The court finds there is evidence to support the trial court’s finding of a sufficient pause, preventing merger of the two assaults. State v. Aitken, ___ Or App ___ (Feb. 6, 2013).

Per Curiams

• Adequate Notice of a Violation Trial Date—5 Day Rule: Notice of a trial date is inadequate where it is sent four days prior to trial. ORS 153.073 requires at least 5 days’ notice for a violation trial. Here, the court sent an initial notice with the wrong address 30 days before trial. The court then sent a correct notice too late. Thus, the court was not legally allowed to enter a judgment of default on the violation. Per curiam. State v Worthington, ___ Or App ___ (Feb. 6, 2013).

• Failure To File Timely Appeal Is a Sufficient PCR Claim—No Need To Show Prejudice: A PCR claim of ineffective assistance is adequately pled where petitioner asserts that counsel failed to file a timely appeal after he has been requested to do so. The petitioner does not need to demonstrate prejudice in these circumstances. ORCP 21 A(8). Cavett v Coursey, ___ Or App ___ (Feb. 6, 2013).

• Consent To Search Is Involuntary When Given Under the Threat of Bogus Traffic Citations: Consent to search is not voluntary if given in response to an officer’s threat to issue additional citations, when the officer had no legal basis for those additional citations. Per Curiam. State v. Beaudreau, ___ Or App ___ (Feb 6, 2013).