Oregon Appellate Ct - February 24, 2016
by: Aalvarez • February 24, 2016 • no comments
Merger-Theft of a Firearm and Theft of Property Valued at $1,000 or More
In light of State v. Slatton, the trial court erred in concluding that it was precluded from merging two convictions for Theft in the First degree where one count was based on theft of a firearm and one count was based on theft of coins and jewelry valued at $1,000 or more.
However, because the court erroneously entered multiple convictions based on its belief that the counts could not merge based on the nature of the property stolen, it did not consider whether there were separate victims for each theft. Thus, the court remands the case to the trial court to determine whether there were separate victims for each theft as to preclude merger. State v. Brown, 276 Or. App. 578 (2016)
Buck/Rodriguez-A Judge May Consider a Defendant’s Diminished Mental Capacity in Deciding Whether a Sentence is Disproportionate
A judge may consider a defendant’s diminished mental capacity in deciding whether a mandatory minimum sentence is constitutionally disproportionate. Here, the defendant was convicted of First Degree Sodomy and Sex Abuse. He was sentenced to the mandatory minimum of 300 months in prison. During sentencing, the defendant argued that the sentence was unconstitutionally disproportionate. In arguing that the sentence was disproportionate, he asked the court to consider brain damage he incurred as the result of multiple strokes. The trial court denied the defendant's motion, explaining its belief that Buck/Rodriguez did not allow a court to alter a defendant’s mandatory minimum sentence based on a defendant’s mental characteristics. In vacating the judgment and remanding for resentencing, the court explained that “in considering whether a penalty is constitutionally disproportionate under Article I, section 16, as applied to a defendant, a court may consider, among other factors, the characteristics of the defendant. Among the characteristics of the defendant that the court should consider is a defendant's diminished mental capacity.” Thus, the court erred in failing to consider the brain damage the defendant had suffered. State v. Sanderlin, 276 Or. 574 (2016)
Two Per Curiam Reversals of the Imposition of Attorney Fees
Attorney’s fees may not be imposed in the absence of evidence of a defendant’s ability to pay. Seriously. State v. Broome, 276 Or. App. 595 (2016) and State v. Rios, 276 Or. App. 600 (2016)
Delinquency-Insufficient Evidence to Support the Crime of UUV
The state concedes that there was insufficient evidence justifying the juvenile court’s finding of jurisdiction for actions that, if committed by an adult, would constitute UUV. None of the facts stipulated to by the parties explained how the youth and his friends obtained the car, whether the youth was present, whether the driver told the youth anything about the vehicle, and whether he would have seen or noticed anything unusual about the vehicle. Thus, there was an insufficient basis to support a finding that the youth knew the car was stolen. State v. B.B.S., 276 Or. App. 602 (2016)
Civil Commitment-Failure to Advise the AMIP of The Right to Subpoena
The state concedes and the court accepts that the trial court plainly erred in failing to advise the allegedly mentally ill person in a civil commitment case of her right to subpoena. Reversed. Per Curiam. State v. B.O, 276 Or. App. 604 (2016)
