Oregon Appellate Ct - May 11th, 2016

by: Aalvarez • May 12, 2016 • no comments

Increased Suspension Under ORS 813.430(2)(b)(C) – What Qualifies As An Out of State Conviction

An increased suspension under ORS 813.430(2)(b)(C), the statute that allows a greater suspension for a DUII when a person has a prior driving conviction in another jurisdiction, is only authorized when the person’s out of state conviction was a driving offense that includes as an element an unlawful BAC.

Here, the defendant failed a breath test in Oregon and the DMV suspended his license for a year, as opposed to 90 days, on the grounds that he had a reckless driving conviction from Illinois, and at the time of the offense, had a BAC over the legal limit. The defendant appealed and the circuit court reversed the suspension, finding that a defendant is only qualified for an enhanced suspension if the out of state driving offense had as an element an unlawful BAC level, regardless of the defendant’s actual BAC at the time of the offense. The Court of Appeals affirms the circuit court’s ruling, finding that the legislature, when it modified the suspension laws, intended to narrow the scope of the enhanced suspension provisions. Given the legislative history and the plain text of the statute, an increased suspension is only allowed when an unlawful BAC is an actual element of the out of state conviction. Martini v. DMV, 278 Or. App. 172 (2016)

Appellate Procedure – Issue Not Preserved by Mere Citation to Constitution

In a delinquency proceeding, the juvenile did not properly preserve his constitutional “void for vagueness” argument regarding the term “curfew” for appeal because at the trial court level, he did “not assert a vagueness argument, much less a constitutional one,” by merely citing to the federal constitution.State v. J.G.G., 278 Or. App. 184 (2016)

Criminal Mistreatment – A Dirty Diaper Is Not “Withholding Necessary and Adequate Physical Care”

In a prosecution for first-degree criminal mistreatment, a person only withholds necessary and adequate physical care when the person withholds care that is “absolutely required to meet a dependent’s basic safety and survival needs.”

In this case, the state failed to prove that the defendant withheld necessary care from his 5-year-old autistic son by failing to change his son’s diaper in a timely manner, which caused the child to have red and inflamed skin. Although obviously uncomfortable to the child, the state failed to put on sufficient evidence that the diaper caused or would cause serious physical pain or injury and also failed to put on evidence that the dirty diaper amounted to a failure to adequately maintain his son’s hygiene so as to protect a risk of future bodily harm. State v. James Hickey, 278 Or. App. 212 (2016)

MJOA – Testimony of an Accomplice Without Corroboration

The trial court erred in failing to grant the defendant’s MJOA on charges of Solicitation to Commit an Assault, Conspiracy to Commit Assault, and Conspiracy to Commit Robbery where the only evidence of the charges came from the testimony of the accomplice that the defendant supposedly hired to beat up and rob a man who the defendant believed had impregnated his daughter. Because there was no evidence to corroborate the accomplice’s testimony, the defendant’s MJOA as to those counts should have been granted. State v. Habibullah, 278 Or. App 239 (2016)

Plain Error – Merger of Solicitation and Conspiracy to Commit a Single Crime

It was plain error for the court to fail to merge convictions for Solicitation and Conspiracy to commit the same crime. State v. Habibullah, 278 Or. App. 239 (2016)

Appellate Procedure - Motion to Dismiss under ORAP 8.05(3) – Sufficient Evidence that the Defendant Absconded

There was sufficient evidence that the defendant “absconded” for the purposes of ORAP 8.05(3), the statute that allows the state to move to dismiss the defendant’s appeal where the defendant has absconded, under the following circumstances:

• Pursuant to a conditional plea agreement, the defendant appealed his conviction for DUII.
• The defendant had notice of a probation compliance hearing that he failed to attend.
• He also failed to provide proof that he completed his community service and failed to show up for the ensuing show cause hearing that was scheduled as the result of his failure to complete his community service.
• No evidence existed that he ever returned to custody

State v. Hooper, 278 Or. App. 246 (2016)

Whether Particular Convictions Are Part of the Same Criminal Episode Under ORS 137.717

When a person fraudulently submits multiple vouchers to DHS for payment for home health care services over the course of 18 months, each instance of submitting vouchers can be considered part of a separate criminal episode for the purpose of serving as “prior convictions” which can be used to elevate a person’s sentence under ORS 137.717.

Here, “the trial record indicates that each theft resulted from defendant’s act of submitting distinct false vouchers at distinct times and accepting distinct payments and benefits on those vouchers. To be sure, given the repetitive nature of defendant’s crimes, and the fact that they arose in the context of defendant’s family, if the theft charges had been tried separately, the separate trials undoubtedly would have involved some overlapping evidence. Nevertheless, a “complete account” of any single one of the theft charges could be related without relating the details of the other charges, given that each theft charge was based on a distinct voucher or set of vouchers, and distinct payments made in connection with those vouchers. For that reason, the trial court properly applied ORS 137.717 to enhance defendant’s sentences for theft.” State v. Spynu, 278 Or. App. 250 (2016)

Telephonic Testimony – ORS 45.400 – Juvenile Dependency Hearing

The juvenile court erred in allowing a doctor to testify telephonically in a dependency hearing because the physician’s testimony was wholly determinative of the outcome of the proceeding and because ORS 45.400 therefore required him to testify in person. In this case, the juvenile court allowed a medical doctor to testify to a diagnosis of abusive head trauma via telephone in mother’s dependency trial involving her child, A. The trial court found the doctor’s testimony credible and took jurisdiction over the mother’s child.

On appeal, the Court of Appeals reverses the juvenile court, finding that ORS 45.400, the statute governing telephonic testimony does not allow telephonic testimony where the issues to which a witness will testify are outcome-determinative, if a witnesses’ testimony by telephone would result in substantial prejudice to a party in the proceeding, or if the issues a witness will testify about are so determinative of the outcome that face-to-face cross-examination is necessary.

Here, the state concedes that the doctor’s testimony was outcome determinative. Moreover, the mother suffered substantial prejudice from the court’s allowance of telephonic testimony because mother was unable to effectively cross-examine the doctor using a variety of scientific articles because he was not present in the courtroom. As such, the telephonic testimony was forbidden under ORS 45.400 and the trial court erred in admitting it. DHS v. K.A.H, 278 Or. App. 284 (2016)

Permanency – Changing Plan from Reunification to Adoption

The juvenile court did not err in changing the permanency plan of mother’s child, M, from reunification to adoption under the following circumstances:

• Mother failed to make sufficient progress, according to her service providers, that would allow mother to safely return home. According to reports, mother failed to develop a parental role with her child, lacked knowledge as how to meet her child’s day to day needs, and a continued lack of insight into the cause of, and the conditions leading to, DHS’s involvement with the family.
• Further, evidence consistently showed that mother had a history of successfully engaging in services for a period of time but later allowed circumstances to deteriorate DHS v. C.M.E., 278 Or. App. 297 (2016)

Parental Bond – Compelling Reasons for a Court to Decline to Change the Permanency Plan to Adoption

A mother’s bond with her son was not a compelling reason for the trial court to decline to change the permanency plan it had in place to adoption because, although the Court of Appeals has yet to decide whether the bond between a parent and a child can serve as a compelling reason to decline pursuing termination of parental rights, the evidence here showed that mother’s child expressed his desire to continue to remain with his foster parents and because, although mother had developed a strong attachment to her child, the role remained that of a “friend, a peer, and a play partner,” rather than a parent. DHS v. C.M.E., 278 Or. App. 297 (2016)

Initial Failure to Provide Services by DHS in a Dependency Case

Failure by DHS to provide services to mother in the first half a dependency case did not constitute a circumstance under ORS 419(B).498(2)(c) to forgo a change in permanency plan because “that the departments efforts were not reasonable during one time period does not necessarily establish that the departments overall efforts – including its later efforts – were unreasonable.” DHS v. C.M.E., 278 Or. App. 297 (2016)

Appellate Jurisdiction - DUII – Maximum Fines Allowed By Law

The Court of Appeals lacked jurisdiction to hear the defendant’s appeal that the trial court erred in imposing minimum fines of $1,000 and $2,000 on two counts of Driving While Suspended that occurred while the defendant’s license was suspended for Refusing a Breath Test. The trial court authorized those fines based on ORS 811.182(5), which defendant argued only applied if his license was suspended for a DUII at the time he was caught driving, not a refusal to take a breath test.

On appeal, the Court does not reach the merits of the defendant’s argument, instead explaining that it lacked jurisdiction because ultimately, the fines the trial court imposed did not exceed the maximum fines allowed by law:

“Even assuming that ORS 811.182(5) contemplates a predicate finding that the trial court did not make—namely, that defendant’s license suspension resulted from a DUII conviction—and that the court, therefore, incorrectly concluded that it was required to impose minimum fines, that misunderstanding would not give us jurisdiction to hear defendant’s appeal. That is because ORS 161.635(1)(a), the statute that authorized the court to impose any fines for defendant’s driving while suspended convictions, allowed the court to impose fines of up to $6,250 for each conviction without additional procedures or findings.” State v. Jacquez, 278 Or. App. 313, (2016)

Search and Seizure – Consent Was Not Voided by Police Trespass

A defendant’s consent to police to enter his home was not voided by the fact that two other officers separately trespassed in the defendant’s backyard because the trial court determined, and the Court of Appeals found that there were facts to support that determination, that the defendant’s consent to enter his home was given before any illegal trespass by police. “Because no police illegality preceded defendant’s consent to allow [officers] to enter his home, defendant’s argument—that his consent was tainted by police illegality—fails.”

Further, the Court of Appeals remanded the case back to the trial court to determine what effect, if any, the trespass by the police officer’s in the backyard might have had on the defendant’s subsequent consent to search (as opposed to merely enter) his home. State v. Parnell, 278 Or. App. 260 (2016)

PCR – Post-Conviction Request for DNA Testing

Per curiam reversal of a trial court’s denial of a defendant’s petition requesting counsel to assist in post-conviction DNA testing. “In this case, it is undisputed that defendant led a petition for appointed counsel that complied with the statutory requirements of ORS 138.694 (2013). The state, therefore, concedes that the trial court erred by denying defendant’s petition. We agree, accept the state’s concession, and reverse the trial court’s denial of his petition.” State v. Linson

Attorney’s Fees- Seriously, The Court Really Means There Must Be Findings of An Ability to Pay

The Court of Appeals continues to remind us that the trial court REALLY needs to make findings of a person’s ability to pay before imposing attorney’s fees with three per-curiam reversals of the imposition of attorney’s fees. State v. Forney and State v. Baker and State v. Juarez

Civil Commitment – Three Per Curiam Reversals

Three per-curiam reversals in civil commitment cases; One where the court failed to advise the AMIP of his right to subpoena and the other two based on legally insufficient evidence to justify a commitment. State v. D.B. (the subpoena case), State v. R.C.S., and State v. A.K.

Restitution and $60 Mandatory Assessment – No Authority for Either

The state concedes, and the Court of Appeals accepts its concessions, that the trial court erred in imposing restitution and a $60 mandatory assessment where there was no authority to do so. As to restitution, the trial court ordered the defendant to pay $200 to fix the front door of his girlfriend’s apartment that he damaged, even though the defendant’s conviction (which arose out of a guilty plea to harassment for dumping a milkshake on his girlfriend’s head during an argument) did not involve the front door. Because the damage to the door was not a result of the criminal activities for which he was convicted, the imposition of the $200 in restitution was improper. Further, the imposition of a $60 mandatory assessment was also improper, as there was no statutory authority governing the imposition of that fine. State v. Wiggins, 278 Or. App. 334 (2016)

Habeas – Prior Petitions Involving the Same Claim

The trial court erred in dismissing the defendant’s habeas petition on the grounds that the allegations were “similar—if not identical—to those he raised” in a prior petition and thus could not be raised again. On appeal, the Court of Appeals reverses the trial court’s ruling, noting that the petition the court relied on had since been dismissed without prejudice and thus the prior judgment of dismissal could not operate to bar the defendant from raising his claims at issue in this case. Erskine v. Premo