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Oregon Appellate Ct - Feb 1, 2017

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by: Sara Werboff • February 5, 2017 • no comments

Post-Conviction Relief - Appellate Counsel Was Not Ineffective for Failing to Challenge Juror Excusal - Appellate Counsel Was Ineffective for Failing to Seek Reconsideration of Appellate Disposition

The court affirms the post-conviction court's partial grant of post-conviction relief. Petitioner was charged with two counts of aggravated murder and sentenced to a true life sentence. During the guilt phase of petitioner's trial, a juror came forward and said that he could never sentence anyone to death. The trial court examined the juror and ultimately excused him. On appeal, appellate counsel did not challenge that ruling. Petitioner contended that appellate counsel was ineffective for failing to challenge the excusal of the juror. The court concludes that the appellate counsel was not ineffective because that claim of error would not have prevailed on appeal. The trial court did not abuse its discretion in excusing the juror once that juror indicated that his personal beliefs would impair his performance of his duties.

The state cross-appealed the post-conviction court's decision that appellate counsel was ineffective for failing to move for reconsideration of the disposition of petitioner's direct appeal. On appeal, the court agreed with petitioner's argument that the guilty verdicts on the two counts of aggravated murder should have merged. The tagline on the opinion commanded the trial court to enter a corrected judgment. Petitioner argued on PCR that he was entitled to a remand for resentencing, where he could argue for a sentence of life with parole. The court agrees with the post-conviction court that appellate counsel was ineffective for failing to move for reconsideration to correct the disposition. At the time of the appeal, there were several appellate cases that would have supported a petition for reconsideration asserting that petitioner was entitled to a remand for resentencing.

Garner v. Premo, 283 Or App 494 (2017) (Hadlock, C.J.)


Attorney Fees - Court Could Not Infer that Trial Court Relied on Information Collected to Determine Defendant's Eligibility for Counsel in Finding an Ability to Pay

The court concludes that the trial court plainly erred in imposing attorney fees in the absence of a finding that defendant had the ability to pay. The court rejects the state's argument that the trial court may have relied on "information collected to determine defendant's eligibility for court-appointed counsel" in ordering defendant to pay $440 in attorney fees and therefore the error was not obvious. Instead, the court explains that there is no "affirmative indication" in the record that the trial court made the finding of ability to pay required by the attorney fee recoupment statutes and the state's suggestion is "nothing more than speculation." Additionally, even assuming that the trial court considered that information, that information could not support a determination that defendant had the ability to pay. The court exercises its discretion to correct the error.

State v. Runnels, 283 Or App 512 (2017) (Armstrong, P.J.)


Search and Seizure - Seizure of Defendant Justified by Officer Safety Concerns

The court affirms the trial court's denial of defendant's motion to suppress evidence, concluding that the officers were justified in seizing defendant to alleviate officer safety concerns. The officers were executing a search warrant on a known drug house. When they arrived at the location they saw defendant and another man, Lando, sitting in a car parked outside. The officers knew Lando to be a methamphetamine dealer who often carried weapons. Defendant and Lando noticed the officers as they approached the car and defendant shoved a backpack into the back seat. The officers removed the men from the car and patted them down. The officers found drugs on Lando and nothing on defendant. The officers did not want to leave the men unsecured outside, so they brought the men into the house and made them sit with the house's occupants during the search. While there, the officers interviewed defendant, who made incriminating statements which led the officers to incriminating evidence in the car.

The court concludes that the officers were justified in detaining defendant while executing the search warrant. The officers reasonably believed, based on their knowledge of Lando and defendant's action of concealing the backpack, that there was at least one weapon in the car. The court further concludes that there is no meaningful distinction between an occupant of a place to be search and a person immediately outside the residence at that time. Defendant and Lando were immediately outside before the officers secured the scene. The officers needed to act quickly to maintain the "element of surprise" they needed to execute the warrant safely. Leaving defendant and Lando outside would have created a risk that the men could use the weapons against the officers before they secured the premises. Therefore, the patdown did not allay the officer safety concerns and defendant's seizure was justified.

State v. Madden, 283 Or App 524 (2017) (Sercombe, P.J.)


Burglary - State Failed to Prove that Locked Bedroom Was a Dwelling

The court concludes that defendant was entitled to a judgment of acquittal for first-degree burglary where the state proved that defendant broke into his parents' locked bedroom and took a firearm. Defendant lived with his parents in a three-bedroom house. Defendant was permitted in all areas of the house, except for his parent's bedroom when they were not home. Defendant moved for a judgment of acquittal arguing that his parents' bedroom was not a "building" because it was not a "separate unit" of the house. The court agrees with defendant. The room was not a component part of the house that stands alone in its physical or functional occupancy, rather it had a function that was inseparable from this overall purpose of the house as a family residence. The lock on the door did not serve to change the bedroom into a separate unit of the house.

State v. Rodriguez, 283 Or App 536 (2017) (Sercombe, P.J.)


Stalking - Defendant Entitled to Judgment of Acquittal for Stalking Because Contact was Not Repeated

The court reverses defendant's stalking conviction because the unwanted contact with H, her ex-boyfriend, was not repeated. The contacts were as follows: defendant knocked on H's door but received no answer. Later that day, defendant went to H's house again to ask for property she had left there. Defendant then sent letters and text messages that did not contain threats. Defendant then accelerated her vehicle towards H. Only the last contact was actionable. Because there was only a single actionable contact, and stalking requires two or more such contacts, defendant was entitled to an acquittal.

State v. Sahli, 283 Or App 545 (2017) (Sercombe, P.J.)


Sentencing - Delivery and Possession Counts Did Not Merge - Probation Condition Permitting Walk-Through of Home Not Unconstitutional

The court affirms defendant's convictions and sentence for delivery and possession of methamphetamine. For both counts, the state alleged that they were commercial drug offenses and involved substantial quantities as subcategory factors to enhance defendant's sentence. Defendant acknowledged that ordinarily guilty verdicts for delivery and possession do not merge, but argued that they should here because, as charged, both counts required the state to prove that defendant possessed more than eight grams of methamphetamine. The court explains that defendant's argument presupposes that sentencing enhancement factors are elements, which is contrary to case law. Because the sentencing enhancement factor was not an element, the trial court did not err in failing to merge the guilty verdicts.

The court also rejects defendant's constitutional challenge to a probation condition requiring her to "permit the probation officer to visit the probationer or the probationer's work site or residence and to conduct a walk through of the common areas and of rooms in the residence occupied or under the control of the probationer." Defendant asserted that the condition effectively authorizes suspicionless searches and is therefore facially unconstitutional under Article I, section 9, and the Fourth Amendment. The court explains that as a probationer, defendant is subject to additional restrictions and invasions that would be unlawful if imposed on law-abiding citizens. Further, the condition does not give the probationer officer unfettered discretion to search defendant's home for evidence of criminal activity. Instead, the home-visit provision serves a distinct supervisory function that promotes the state's interest in rehabilitating probationers. The court concludes that the probation condition does not violate Article I, section , or the Fourth Amendment.

State v. Scott, 283 Or App 566 (2017) (Garrett, J.)


Juvenile Dependency - Juvenile Court Erred in Changing Permanency Judgment

The court concludes that the juvenile court erred in determining that compelling reasons to defer filing a termination of parental rights petition were not present and therefore the juvenile court erred in changing the permanency plan from reunification to adoption. This case involves mother's second child; the court recently addressed nearly identical issues concerning another of mother's children in DHS v. S.J.M., 283 Or App 367 (2017) ("S.J.M. I"). Here, as in S.J.M. I, the court concludes that the juvenile court correctly ruled that mother failed to make sufficient progress in services to allow her child, L, to return safely home. But the court further concludes that the juvenile court erred in concluding that there were no compelling circumstances to defer termination because there was insufficient evidence to support that determination. For example, there was no evidence that it would be unreasonable for mother to have additional time to become a suitable parent.

DHS v. S.J.M., 283 Or App 592 (2017) (DeHoog, J.)


Per Curiam - Attorney Fees - Trial Court Plainly Erred in Imposing Attorney Fees

The court accepts the state's concession that the trial court plainly erred in imposing $1,144 in court-appointed attorney fees and exercises its discretion to correct the error in light of the amount of fees, defendant's lengthy prison sentence, and the fact that the record would not support a finding that defendant could pay the fees.

State v. Ortiz, 283 Or App 610 (2017) (per curiam)


Per Curiam - State Failed to Prove that Defendant Violated Restraining Order

The court concludes that defendant was entitled to a judgment of acquittal on a contempt charge alleging he violated a FAPA order. The order precluded defendant from coming within 150 feet of the petitioner's current or future residence. The order withheld the address for safety reasons and instead supplied a "safe contact" address where defendant was to mail emergency monetary assistance. Defendant showed up at that address and was charged with contempt. The state concedes that it failed to prove that defendant violated the order because it did not present any evidence that the safe contact address was the petitioner's current or future address and the order did not prohibit defendant's presence at the safe contact address.

State v. Ugalde, 283 Or App 612 (2017) (per curiam)


Per Curiam - Civil Commitment - Reversal Required for Failure to Advise of Rights

The court accepts the state's concession that the trial court plainly erred when it failed to advise appellant of his rights under ORS 426.100(1).

State v. M.M.P., 283 Or App 615 (2017) (per curiam)