Oregon Appellate Ct - February 10, 2016
by: Aalvarez • February 11, 2016 • no comments
PCR - Defendant Did Not Suffer Prejudice by Counsel’s Failure to Object to the Use of a Restraining Leg Brace Where the Brace was Not Visible to the Jury
Even assuming trial counsel was inadequate for failing to object to the use of a leg brace to restrain the defendant during his trial, he was not entitled to post conviction relief because there was no evidence that he was prejudiced by the leg brace. Because the post-conviction court found that the brace was not visible to the jury, it was also entitled to find that the jury was unaware that the defendant was restrained in the courtroom. As such, the Court of Appeals cannot presume that the restraints impaired the presumption of innocence or the dignity of the proceedings in a way that prejudiced the defendant. Affirmed. Sproule v. Coursey, 276 Or. App. 416 (2016)
PCR – There Can Be No Claim for Post-Conviction Relief Where the Defendant Unsuccessfully Previously Raised the Claim on Direct Review
Under ORS 138.550, no ground for relief may be raised in a petition for post-conviction relief when a petitioner already sought direct review and asserted the claim on that appeal. Here, petitioner, who was 15 years old at the time he plead guilty to four counts of murder and 26 counts of attempted murder was sentenced to a combined amount of 1,340 months in prison. Petitioner filed for post-conviction relief, arguing that his sentence constituted a “true life” sentence and in light of the Supreme Court’s decision in Miller v. Alabama (holding that mandatory sentences of life without parole for juveniles violated the 8th Amendment), was unconstitutional. On appeal, the Court of Appeals upholds the post-conviction’s court denial of petitioner’s request for relief because where a ground for relief could reasonably have been raised on direct appeal, the petitioner must have raised it. And, here, where the petitioner did in fact raise it albeit unsuccessfully, ORS 138.550(2) and (3) bar that ground for relief from being raised in a later post conviction proceeding. Affirmed. Kinkel v. Persson 276 Or. App. 427 (2016)
Unanimous Jury Verdicts are Not Required
Unanimous jury verdicts are not required under the Sixth Amendment to the United States Constitution. See State v. Bowen, 215 Or. App. 199 (2007). Affirmed. State v. Unger, 276 Or. App. 445 (2016)
Merger—Plain Error—Manufacturing Cocaine and Manufacturing Cocaine in Substantial Quantities
The state concedes and the court accepts that the trial court plainly erred in failing to merge convictions for Manufacturing Cocaine and Manufacturing Cocaine involving a Substantial Quantity of that Drug. Merger is appropriate because the only difference between the two counts was the substantial quantity subcategory factor, which for merger purposes do not constitute elements. Because the error is apparent on the record, the court exercises its discretion to correct the error. Reversed and remanded. State v. Unger, 276 Or. App. 445 (2016)
MJOA--Tampering with Physical Evidence—Knowledge of Being Under Arrest Was Sufficient to Prove Knowledge that an Official Proceeding Was About to be Commenced
Evidence that a defendant knew he was under arrest and therefore about to be taken into custody for the purpose of being charged with an arrest, is sufficient for a juror to find knowledge that an official proceeding was about to be commenced in a prosecution for Tampering with Physical Evidence. Here, after being observed by police acting as a lookout for a drug deal, the defendant swallowed marijuana in his possession. After being arrested, the defendant told police that he swallowed the marijuana when he knew he was under arrest. On appeal, the defendant argues that the trial court should have granted his MJOA because there was insufficient evidence to show that at the time he swallowed the marijuana that he “knew an official proceeding was about to be commenced.” In affirming the trial court’s denial of the defendant’s MJOA, the court stated:
“[W]here knowledge of the future actions of a third party is an element of an offense, evidence that the defendant knows of a circumstance that will cause the requisite actions of the third party to occur can, in some circumstances, be sufficient to create an inference of knowledge. This is one of those circumstances: Where defendant knew that he was under arrest—that is, that he was being taken into custody for the purpose of being charged with an offense—a rational factfinder could reasonably infer that defendant knew that an official proceeding was about to be commenced.” Affirmed. State v. Jacobs, 276 Or. App. 543 (2016)
Attorney's Fees - Plain Error in Imposing Where No Evidence of Defendant's Ability to Pay
The state concedes and the court accepts its concession that the trial court erred in imposing attorney's fees where there was no consideration of her ability to pay. Portion of the judgment requiring the defendant to pay attorney's fees reversed. State v. Radtke
