Oregon Appellate Court - January 30, 2013

by: Jwestover and Abassos • January 31, 2013 • no comments

Lawson/James Remand Due to Suggestive ID

An eyewitness’s identification is suggestive, under Lawson/James, where:

• the eyewitness was unable to identify defendant until well after the suggestive procedure;
• the eyewitness failed to provide much of a description of the perpetrators prior to the suggestive procedure;
• the eyewitness’s exposure to the perpetrator was brief;
• the perpetrators were shooting at the eyewitness at the time; and
• what little description there was, conflicted with the other evidence at that time.

The court noted that the point regarding conflicting testimony was not a "specifically enunciated" Lawson/James factor, which suggests that the list in Lawson/James is non-exhaustive. State v. Wesley, ___ Or App ___ (Jan. 30, 2013)

“Transferred Intent” Still a Valid Doctrine

The common law doctrine of “transferred intent,” though not codified in Oregon’s criminal law, applies to cases of murder. Here, defendant was appropriately convicted of murder where he aided and abetted Smith, who while shooting at one person, accidentally killed another. State v. Wesley, ___ Or App ___ (Jan. 30, 2013)

Threat to Bring Gun to School Was Sufficient to Justify Search of Backpack

Article I, section 9, permits a school principal to search a student’s backpack if he “reasonably suspects, based on specific and articulable facts,” that its contents pose an “immediate threat,” as long as the scope of that search is reasonable under the circumstances. Here, a student’s report that defendant threatened to bring a gun to school that day and shoot the student justified a search by the principal. This is true even though the principal initially thought that such an act by defendant was unlikely. State v. A.J.C., ___ Or App ___ (Jan. 30, 2013)

Denial of Motion for Relief from Default Not Reviewable by Court of Appeals

The Oregon Court of Appeals lacks jurisdiction to review a circuit court’s denial of a motion for relief from default because such a disposition does not fall within the definition of appealable judgments as laid out in ORS 138.053. Alternatively, even if such a such a denial constitutes an “intermediate order” as described in ORS 138.040(1)(a), jurisdiction is still lacking if the appeal was not taken from “a judgment or order described under ORS 138.053,” as required by ORS 138.040(1). Here, defendant failed to appear at his appeal of a municipal court judgment of conviction, and the circuit court denied his motion for relief from default for failure to state good cause. Dismissed. State v. Nelson, ___ Or App ___ (Jan. 30, 2013)

PCR Petitions Must be Supported by Documentary Evidence

ORS 138.580 requires documentary evidence in support of post-conviction-relief petitions. Here, petitioner neither attached any documentary evidence to his petition nor introduced any documentary evidence at the hearing. Dismissal affirmed. Ross v. Franke, ___ Or App ___ (Jan. 30, 2013)

PCR Documents Need only “Tend” to Support Claim

ORS 138.580 requires that PCR petitions contain “documents that tend to verify, corroborate, or substantiate the assertions that the petitioner has undertaken to prove.” (emphasis added). Such documentary evidence need neither be admissible nor be sufficient for a prima facie case on each claim. In this case, it was sufficient that petitioner offered two affidavits containing his own assertions that tended to support four occurrences of ineffective assistance of counsel. Reversed and Remanded. Ogle v. Nooth, ___ Or App ___ (Jan 30, 2013)

Matrix System Prison Term ≠ Sentence

Under the prior “matrix” system of sentencing, prison terms determine when individuals are eligible for parole. They do not determine the length of the sentence. In addition, a prisoner is “not entitled to good-time credits on an indeterminate [matrix system] sentence while he [is] serving other consecutive guidelines [current system] sentences. Thus, in this case, a prisoner’s lawsuit against the DOC for negligent time calculation was appropriately dismissed (by directed verdict). Campbell v. State, ___ Or App ___ (Jan. 30, 2012)

Per Curiams

• State v. Baskette—ORS 137.750 requires a trial court to make requisite findings before denying defendant consideration of eligibility for sentencing reductions. In cases where the court’s error is not apparent until entry of its written judgment, preservation of the error is not required. State v. Baskette, ___ Or App ___ (Jan. 30, 2013)
• State v. Ramos—ORS 161.605(2) caps the "maximum term of an indeterminate sentence of imprisonment" for a Class B felony at 10 years, or 120 months. Here, an upward durational departure of on defendant's conviction for assault in the second degree (144 months) warranted a remand for resentencing. State v. Ramos, ___ Or App ___ (Jan. 30, 2013)
• State v. Williams—ORS 137.717(2) does not include theft of services as a qualifying predicate offense that can give rise to a repeat property offense sentence. Here, the trial court erred by counting defendant’s prior conviction for theft of services as a predicate conviction and thus imposing a real property offender sentence. State v. Williams, ___ Or App ___ (Jan. 30, 2013)
• State v. M.A.M.—Judgment committing appellant as a mental ill person is reversed because the state “failed to prove, by clear and convincing evidence, that, because of a mental disorder, he is a danger to himself.” State v. M.A.M., ___ Or App ___ (Jan 30, 2013)