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Oregon Appellate Ct - Feb 23, 2017

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by: Sara Werboff • February 27, 2017 • no comments

Post-Conviction Relief - Reversing Grant of Post-Conviction Relief Because Trial Counsel Made Reasonable Strategic Choices

The court reverses the post-conviction court's judgment granting post-conviction relief to petitioner on several of his claims. In particular, the court concluded that the PCR court erroneously concluded that 1) trial counsel was ineffective for failing to present a defense expert's bullet comparison opinion during trial, 2) trial counsel and appellate counsel were ineffective for failing to argue that certain evidence was not hearsay, 3) trial counsel was ineffective for failing to move for a continuance of a hearing on a new trial motion and failed to make certain objections to evidence at that hearing. Petitioner was convicted of killing the victim with a single gunshot wound. At trial, the principle defense strategy was to argue another man, Baines, who resembled petitioner, was the likely murderer. In an unrelated search of Baines' home, police found a Rohm revolver. The state argued that the Rohm was inoperable at the time of the murder. The court first concludes that the trial counsel was not ineffective for her strategic decision not to call her expert, Wong, to testify that the Rohm was likely the murder weapon. The court concludes that counsel's decision was reasonable because she feared that Wong's credibility would be attacked and she was able, on cross-examination of the state's expert, to get an acknowledgement that the Rohm could have been the murder weapon. With respect to the claim that trial and appellate counsel were ineffective for failing to argue that recorded statements between police and dispatch were admissible non-hearsay, the court concludes that petitioner was not prejudiced by that failure because the evidence was cumulative of other evidence that was admitted at trial.

With respect to petitioner's post-judgment new trial claims, petitioner introduced evidence, in the form of an affidavit from Thompson, stating that petitioner was not the shooter. The state introduced an affidavit from one of its investigators that contained evidence that would impeach Thompson. Trial counsel objected to the state's affidavit and the trial court, while it did not exclude the affidavit, indicated it was relying primarily on Thompson's affidavit. The trial court denied the new trial motion. Again, the court concludes that the strategy that trial counsel pursued was reasonable.

Judge Ortega, joined by Judge Flynn and Judge Egan, agrees with the majority in most respects but disagrees that it was a reasonable decision not to call the defense ballistics expert. The dissent would have affirmed the grant of post-conviction relief on that basis.


Farmer v. Premo, 283 Or App 731 (2017) (en banc) (Hadlock, C.J.) (Ortega, P.J., dissenting)


Post-Conviction Relief - Petitioner's Padilla Claim was Barred Because Padilla is Not Retroactive

The court rejects petitioner's post-conviction relief claim asserting that his trial counsel was ineffective under Padilla for failing to advise him of the immigration consequences of his guilty plea. Petitioner was convicted of a drug offense in 1999, but he did not file his PCR petition until 2011, after the US Supreme Court decided Padilla. Petitioner contended that Padilla applied retroactively, the court disagrees. First, the court notes that the US Supreme Court already decided that Padilla does not apply retroactively in federal habeas. However, the US Supreme Court also has held that federal retroactivity rulings do not necessarily apply to states. The Oregon Supreme Court has not expressly addressed that issue - so currently the Court of Appeals follows federal retroactivity rulings unless and until the Oregon Supreme Court decides to take a different approach. The court also rejects petitioner's argument that under the Post-Conviction Hearing Act, there is no retroactivity limitation. The court explains that petitioner's statutory argument is inconsistent with case law interpreting that statute and petitioner has not met its burden to show that the line of case law applying the retroactivity rule was wrongly decided.

Chavez v. State of Oregon, 283 Or App 788 (2017) (Duncan, J.)


Evidence - Evidence of Other Sexual Assaults in Another County was Admissible

The court rejects defendant's challenge to evidence that he had committed other assaults against the victim in another county. Defendant specifically challenges the trial court's failure to properly balance the evidence under OEC 403. The court first concludes that, although the trial court did not give a detailed ruling, it was clear that the trial court did exercise its discretion to weigh the probative value of the evidence against its prejudicial effect. The court further concludes that the trial court did not abuse its discretion to admit the evidence. The state proffered two theories of relevance for the evidence. First, the evidence was relevant to prove defendant's attraction to that victim, and to establish that the charged acts were committed and committed with a sexual purpose. Second, the evidence was relevant to help explain why the victim delayed reporting the charged acts, as the uncharged acts occurred after the charged acts.

State v. Gonzalez-Sanchez, 283 Or App 800 (2017) (Duncan, P.J.)


Sufficiency of Evidence - Officer's Order to Defendant was Lawful for Officer Safety Reasons

The court rejects defendant's challenge to his conviction for interfering with a peace officer for failure to obey a lawful order to exit his vehicle. Police encountered defendant during a night-time investigation of a burglary. Defendant was sitting in a vehicle outside of the house. Defendant refused to roll down the window and speak with the officers, and made movements towards the center console. One officer saw a knife, which defendant picked up and threw to the passenger side floorboard. The officers ordered defendant out of the vehicle but he did not comply. Eventually, police broke defendant's window and pulled him out of the vehicle. The court concludes that under the totality of the circumstances the order was justified by officer safety concerns, because the scene was consistent with the purported burglary, defendant was uncooperative, and the presence of the knife could reasonably lead to the belief that defendant had other weapons.

State v. Wilson, 283 Or App 823 (2017) (Devore, J.)


Search and Seizure - Automobile Exception Applies to Cars Stopped for Traffic Violation

The court resolves an issue that has been previously undecided: the automobile exception applies when police stop a vehicle for a traffic infraction and only later develop probable cause to believe that evidence of a crime will be found in the vehicle. Defendant was stopped for speeding. Throughout the course of the encounter, the officer developed probable cause to believe that defendant might have drugs or weapons in his car and the officer searched the car pursuant to the automobile exception. Defendant argued that the evidence should be suppressed because the vehicle was not mobile when police determined it was connected with criminal activity. The court rejects that argument, relying on the principles set forth in State v. Brown, 301 Or 268 (1986). First, the court explains that the plain words of the exception announced in Brown apply to a circumstance where police lawfully stop a vehicle. Second, the purpose behind the auto exception - to create a per se rule for police - also indicate that it applies to this circumstance. Third, Brown relied on cases from other jurisdictions which authorized the kind of search at issue here. Finally, the language from other Oregon Supreme Court cases that indicate a vehicle must be mobile when encountered in connection with a crime, in context, stand for the proposition that a vehicle must not be immobile when police encounter it, not that police must stop the vehicle in connection with a crime.

State v. Bliss, 283 Or App 833 (2017) (Lagesen, J.)


Trial Court Did Not Err in Finding Defendant in Summary Contempt

The court upholds defendant's summary punitive contempt for repeatedly interrupting the trial court while appearing in a marital dissolution hearing by telephone. The court rejects defendant's argument that, because his appearance was telephonic, the contempt was not committed in the presence of the court. The court holds that notwithstanding defendant's telephonic appearance, the contempt occurred while court was in session and the trial court could perceive the effects of defendant's behavior. The court also rejected defendant's argument that his conduct was not willful because the trial court could not establish that defendant heard the court's order to stop interrupting. The court concludes that the record supports the trial court's conclusion that defendant did hear its orders. For similar reasons, the court also rejects defendant's argument that the poor speakerphone technology was a mitigating circumstance.

State v. Blackburn, 283 Or App 843 (2017) (Lagesen, J.)


Sentencing - Declining to Overrule Precedent Requiring Full Remand for Merger Error

The court rejects the state's argument that the court should overrule State v. Skaggs, 275 Or App 557 (2015), which held that ORS 138.222(5)(b) requires reversal of the judgment of conviction triggering a full remand for resentencing on affirmed counts. Here, the state acknowledged that defendant's two guilty verdicts for animal neglect involving the same alpaca should have merged, and further acknowledged that under Skaggs, reversal of the judgment of conviction was required. However, the state contended that Skaggs was wrongly decided because ORS 138.222(5)(b) was never intended to apply to merger errors, instead ORS 138.222(5)(a) - which does not compel an automatic resentencing - applies. The court concludes that the state's statutory analysis does not persuade it that its original conclusion in Skaggs was erroneous.

State v. Silver, 283 Or App 847 (2017) (Garrett, J.)


Post-Conviction Relief - Petitioner Did Not Establish that Expert Testimony Would Have Been Admissible

The court reverses the post-conviction court's grant of post-conviction relief because evidence that petitioner asserted that his trial counsel was ineffective for not introducing was scientific evidence and petitioner did not meet the burden for admissibility of that evidence. Petitioner was convicted of sexual abuse after he assaulted a woman while intoxicated at a party. Petitioner argued that he lacked the requisite mental state because he was a Vietnam veteran who consumed a great deal of alcohol and medication that night to deal with traumatic memories, and he had no recollection of committing the offense. At his PCR trial, petitioner proffered the testimony of two experts who would present evidence of alcohol's effect on petitioner's brain chemistry and his ability to form intent and evidence that petitioner suffered from PTSD and was triggered by earlier events at the party. The court concludes that the proffered evidence was "scientific evidence" and petitioner was required to meet the Brown/O'Key burden of admissibility. Here, petitioner took the position that the evidence was not scientific and he did not need to make that showing and consequently, the record developed at the PCR proceedings was not sufficient to establish that the evidence was admissible. The court further concludes that the admissible portions of the expert's testimony would not have had a tendency to affect the proceedings, and petitioner did not show prejudice.

Brenner v. Nooth, 283 Or App 868 (2017) (Shorr, J.)


Per Curiam - Reversing Attorney Fees

The court concludes that the trial court erred in imposing attorney fees after explicitly finding on the record that defendant did not have the ability to pay.

State v. Clark, 283 Or App 893 (2017) (per curiam)


Per Curiam - Trial Court Did Not Plainly Err in Imposing Attorney Fees

The court concludes that the trial court did not plainly err in imposing $416 in attorney fees because there was evidence in the record that defendant was receiving disability payments.

State v. Poston, 283 Or App 895 (2017) (per curiam)


Per Curiam - Defendant's Father Lacked Actual Authority to Consent to Search of Defendant's Room

The court accepts the state's concession that evidence derived from a search of defendant's room should have been suppressed. Defendant rented a room from his father. Defendant's father consented to a search of defendant's room but defendant indicated he did not give his consent. Under those circumstances, the search was unlawful.

State v. Fraser, 283 Or App 897 (2017) (per curiam)


Per Curiam - Insufficient Evidence to Support Civil Commitment

The court accepts the state's concession that there was legally insufficient evidence to support the trial court's conclusion that appellant was a danger to himself or others.

State v. D.J., 283 Or App 899 (2017) (per curiam)


Per Curiam - Reversing Attorney Fees

The court accepts the state's concession that the trial court plainly erred in imposing $3,095 in attorney fees when the record was silent as to defendant's ability to pay the fees.

State v. Cason, 283 Or App 901 (2017) (per curiam)


Per Curiam - Defendant's Two Unlawful Delivery Guilty Verdicts Should Merge

The court concludes that the trial court plainly erred when it failed to merge the guilty verdicts for unlawful delivery of cocaine within 1,000 feet of a school and unlawful delivery of cocaine.

State v. Abraham, 283 Or App 903 (2017) (per curiam)


Per Curiam - Reversing Attorney Fees

The court reverses the attorney fee award because the trial court did not announce it was imposing attorney fees at sentencing and defendant had no practical opportunity to object.

State v. Terhune, 283 Or App 905 (2017) (per curiam)


Per Curiam - Juvenile Dependency Appeal Dismissed as Moot

The court dismisses this juvenile dependency appeal as moot because the juvenile court dismissed jurisdiction over mother's child.

DHS v. A.B., 283 Or App 907 (2017) (per curiam)


Per Curiam - Rejecting Challenge to Auto Exception Search

In light of State v. Bliss, decided today, the court rejects an identical argument made by defendant that police could not rely on automobile exception after stopping defendant for a traffic violation.

State v. Kline, 283 Or App 909 (2017) (per curiam)


Per Curiam - Court Grants Reconsider to Correct Citation Error

The court grants reconsideration to correct an error in its original opinion. The court mistakenly stated that ORS 419B.815(8) precluded mother from arguing that her counsel was ineffective in a termination proceeding because she failed to appear at that hearing, when really the identically-worded ORS 419B.819(8) applies in termination proceedings.

DHS v. M.L.B., 283 Or App 911 (2017) (per curiam)