Oregon Appellate Court - July 10, 2013
by: Zara Lukens, Alarson, Sonja Good Stefani and Abassos • July 10, 2013 • no comments
Statute of Limitations Facts Must Be Specifically Pled
Where a charging instrument facially exceeds the statute of limitations, it is subject to a demurrer unless specific facts are also pled explaining how the charge was timely brought. Here, a 2007 information on a 2002 DUII asserted, with no explanation, that the prosecution had commenced before the statute of limitations expired. The DA may not, in that instance, argue facts external to the charging instrument, like the tolling of the statute of limitations. Thus, the information must be dismissed. State v. Gruhlke, 257 Or App __ (July 10, 2013).
PCR – Sentencing Mitigation
Petitioner was correctly denied post-conviction relief where (1) while counsel did not investigate a sentencing mitigation argument based on petitioner’s Native American heritage, any such argument would have contradicted petitioner’s actual sentencing argument that his years spent in prison was the reason for the crimes; (2) counsel were sufficient in their investigation into petitioner’s mental history where the record shows they reviewed thousands of pages of petitioner’s criminal and mental history, which they used for a GEI defense. Lotches v. Premo, 257 Or App __ (July 10, 2013).
Prejudicial Details of Crime May Be Admissible to Demonstrate Victim’s Memory
Evidence of defendant’s refusal to wear a condom during sexual intercourse in a case charging sexual abuse was admissible to demonstrate the victim’s memory of specific details of the incident. The trial court did not abuse its discretion in finding that the limited probative value was not substantially outweighed by the danger of unfair prejudice. State v Sewell, ___ Or App ___ (July 10, 2013).
Request for Self-Representation May Be Rejected Because It Is Contingent on a Setover
It was within the trial court’s discretion to deny defendant’s request for self-representation contingent upon an allowance for a continuance. The delay would have been disruptive of the orderly conduct of trial under Blanchard. State v. Fredinburg, 257 Or App __ (July 10, 2013).
Trial Counsel Was Not Inadequate Where He Allowed an Ag Murder Plea After Advising Defendant of Options and Timelines
Denial of post-conviction relief was appropriate where petitioner did not challenge the finding that trial counsel repeatedly advised petitioner of his defense options and petitioner refused to waive the IAD timelines. Defendant argued that his attorney’s unwillingness to prepare an ag murder self-defense case within the IAD time limits was inadequate assistance of counsel. Aponte v. State, 257 Or App __ (July 10, 2013).
Merger - Multiple Crimes Within the Same Date Range
When a defendant pleads guilty to multiple counts of a crime within a range of dates, he "assent[s] to the broadest construction of his pleas, i.e., that the state could prove that he committed the offenses on any of the dates alleged in the indictment." The trial court is entitled to conclude that the counts do not merge because the crimes were separated by sufficient pauses to be separately punishable offenses. State v. Ostrom, 257 Or. App. ___ (July 10, 2013).
