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Oregon Appellate Ct - June 7, 2017

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by: Sara Werboff • June 9, 2017 • no comments

Post-Conviction Relief – Petitioner Was Not Prejudiced by Trial Counsel’s Deficient Performance

The court upholds the denial of petitioner’s PCR petition. Petitioner was convicted of rape following an incident at a fraternity party. During PCR, petitioner asserted that trial counsel was ineffective for 1) failing to obtain the complainant’s medical records, and 2) for withdrawing a successful motion to suppress which excluded a pair of petitioner’s bloody underwear, DNA test results revealing it was the complainant’s blood, and petitioner’s statement that he had put a finger inside the complainant. At trial, petitioner’s defense was that no sexual intercourse took place, and alternatively, if it did, it was consensual.

The PCR court concluded that trial counsel’s failure to request the medical records was deficient performance, but that petitioner was not prejudiced because the case was not a “credibility contest.” The PCR court concluded that the admission of petitioner’s statement about fingering the complainant was part of a reasonable trial strategy but that trial counsel’s performance was deficient for allowing the physical evidence to come in, but that petitioner was not ultimately prejudiced. The court agrees for the most part with the PCR court. The court disagrees with the PCR court and explains that this case was a credibility contest, however, petitioner was not prejudiced by the failure to obtain the medical records because the information contained therein would not have been admissible. The court concludes that withdrawing the successful suppression motion did not prejudice petitioner because the evidence was cumulative of other information in the record.

Sako v. Taylor, 286 Or App 9 (2017) (Sercombe, P.J.)

Juvenile Dependency – Mother Was Permitted to Present New Evidence at Judicial Rehearing

The court concludes that under ORS 419A.150(3), a party is permitted to present new evidence in a judicial rehearing of a referee’s jurisdiction determination. In this case, mother failed to appear at a pretrial conference before a referee and that referee allowed DHS to present its prima facie case for jurisdiction, and thereafter entered an order taking jurisdiction over mother’s child. Mother made a timely request for a rehearing before a juvenile court judge. At that hearing, she sought to introduce evidence to rebut DHS’s case, but the juvenile court did not allow her to do so. On appeal, DHS argued that mother forfeited the right to present new evidence when she failed to appear for the referee’s hearing. The court rejects that argument because ORS 419A.150 does not make any distinction between appearing and nonappearing parties. The court further holds that ORS 419A.150 does not grant the juvenile court any discretion to preclude new evidence.

Judge DeHoog concurs, writing separately to explain that the rule would sanction a waste of judicial resources. However, he acknowledges that changing the rule would require a legislative fix.

DHS v. J.R.D., 286 Or App 55 (2017) (Sercombe, P.J.) (DeHoog, J., concurring)

Speedy Trial – Defendant was Not Prejudiced by Pretrial Delay – Defendant Waived Statute of Limitations Defense

The court concludes that defendant failed to establish a denial of his constitutional right to speedy trial because he could not establish prejudice. The procedural history of this case is fairly complex, and the parties disputed the length of the pretrial delay. The court concludes that it did not need to establish when the clock started for that purpose because in any event, defendant failed to establish as required under the Oregon Constitution that he suffered prejudice as a result of the delay. There was no suggestion that the delay prevented defendant from defending himself at trial. And although there was evidence that defendant suffered anxiety and stress pretrial, it was not of a magnitude different than any other prosecution.

Finally, the court rejects defendant’s plain error argument that the prosecution was barred by the statute of limitations, but the court concludes that defendant waived that defense by not demurring to the indictment.

State v. Chelemedos, 286 Or App 77 (2017) (Tookey, J.)

Sentencing – Trial Court Erred in Imposing Consecutive Sentences for Attempted Murder and First-Degree Assault

The court concludes that there is insufficient evidence to permit the trial court to make the required findings under ORS 137.123(5) to authorize consecutive sentences. Defendant pleaded guilty to attempted aggravated murder and first-degree assault following a chase with a police officer. Defendant shot at the police officer twice, hitting him once. At sentencing, the trial court imposed consecutive sentences because defendant “decided to shoot again” and that it was a “quantifiably different harm” when he did so. The court explains that there was insufficient support for either rationale. First, the assault was merely incidental to the attempted murder because the intent to cause serious physical injury was subsumed in the intent to kill. Where the record was silent as to the amount of time between the gunshots, the court could not infer that defendant was willing to commit more than one offense. Second, the harms were not qualitatively different, because looking at the harms risked (and not solely theoretical harms) because both crimes carried the risk of death.

State v. Edwards, 286 Or App 99 (2017) (Garrett, J.)

Per Curiam – Sentencing – Not Plain Error to Impose Lengthy Non-Life Sentence on Juvenile

The court rejects defendant’s effort to raise as plain error an argument that his 40 year sentence was unconstitutional under Miller v. Alabama, 567 US 460 (2012). The court explains that the error is not “obvious” because the US Supreme Court has not extended the reasoning of Miller to non-life, fixed-term sentences and the extent to which it applies is an open question.

State v. Pearson, 286 Or App 110 (2017) (per curiam)