Oregon Appellate Ct - Oct 19, 2016
by: Sara Werboff • October 21, 2016 • no comments
Vindictive Sentencing - Trial Court Imposed Vindictive Sentence for Relying on Conduct in Crimes Reversed on Appeal
The court reverses a sentence that the trial court based on counts that were reversed on appeal and awaiting retrial. Defendant was convicted of sex crimes involving two victims, C and Z. The offenses involving C were reversed due to evidentiary error, and the crimes involving Z were remanded for resentencing. The trial court originally had imposed 115 months for the crimes involving Z, and following resentencing, it imposed a sentence of 183 months, which was lower than the total original sentence but 68 months longer than the original sentence for just the offenses involving Z. The trial court justified this decision by taking into account the offenses involving C, noting that there was a "strong possibility" defendant would not be retried on those counts.
Although defendant received a lower total sentence than he originally had, and therefore there was no presumption of vindictiveness, here, the court concludes, "the trial court did what Partain is intended to protect against; it imposed a sentence that effectively punished defendant for his success on appeal." Defendant's sentence "should not have been increased such that the prosecution would be relieved of its burden to prove the reversed count beyond a reasonable doubt." Because the trial court's sentence was vindictive, the trial court violated defendant's rights under the due process clause.
State v. Bradley, 281 Or App 696 (2016) (Tookey, J.)
Burglary - Defendant Not Guilty of Burglary Because He Had Authorization to be In Coworker's Office
The court concludes that under its recent holdings, defendant did not commit a burglary when he committed a crime in an office that he was authorized to be in. Defendant, an IT worker, installed a camera in his nursing colleague's office, which captured images of her bare breasts. Defendant was charged with second-degree burglary among other crimes. The evidence showed that as an IT worker, defendant had the right to access his coworker's office to conduct legitimate business. Commission of other crimes did not convert defendant's lawful entry into the office into one in which he could be found to have unlawfully remained in her office.
State v. Gordon, 281 Or App 654 (2016) (Armstrong, P.J.)
Fines and Fees - Trial Court Lacked Authority to Impose a Compensatory Fine
The court reverses the trial court's award of a $3,000 compensatory fine because the trial court lacked the authority to impose that fine. Defendant was convicted of a misdemeanor, and the trial court was authorized to impose up to $6,250 in fines. The trial court also can direct that a defendant pay a portion of that fine directly to the victim. However, the trial court here did not impose a punitive fine, it imposed a compensatory fine.
State v. Nichols, 281 Or App 658 (2016) (Sercombe, P.J.)
Denial of Continuance - Trial Court Did Not Abuse Discretion in Denying Continuance for Pro Se Defendant to Subpoena Police
The court concludes that the trial court did not abuse its discretion when it denied a morning-of-trial continuance request so that defendant, who was pro se, could subpoena several police officer witnesses. Defendant had attempted to timely serve the officers, but the office was closed. When he returned, his subpoenas were untimely so they were rejected. On the morning of trial, the trial court spent a great deal of time attempting to understand defendant's purpose for calling the witnesses. Essentially, defendant sought to call the police to show a pattern of conduct where the police refused to aid him and instead arrested him, which aggravated his "emotionally sensitive neuropathic pain condition." Defendant contended that his aggravated condition caused him to act in ways that led to his arrests for trespass and criminal mischief. The trial court concluded that the testimony of the officers would not be relevant and this court agrees and concludes the trial court did not err.
State v. Stull, 281 Or App 662 (2016) (Egan, J.)
Plea Agreements - State Breached Plea Agreement by Seeking Restitution
The court holds that the state breached the plea agreement and defendant is entitled to specific performance of the agreement or to withdraw his plea. Defendant entered into a plea agreement for UUV that was silent as to restitution but was otherwise comprehensive. The state then sought restitution for the loss of a trailer. The trial court overruled defendant's objections and requests to enforce the agreement and imposed restitution. The plain terms of the plea agreement did not include restitution and allowing the state to do so would improperly introduce a new term into the agreement.
State v. Thomas, 281 Or App 685 (2016) (Devore, J.)
Civil Commitment - Record Legally Insufficient to Support Civil Commitment
The court concludes that the record is legally insufficient to establish that appellant is a danger to herself or others. There was no dispute that appellant suffered from a mental illness that caused her to become agitated and aggressive towards hospital staff, and, on occasion, to disrupt traffic. The court explains that the type of danger necessary to justify a civil commitment is “a narrow range of serious and highly probable threats of harm.” To establish danger to self, there must be a particularized and highly probable threat to the appellant’s safe survival, including a risk of substantial harm. To establish a danger to others, actual future violence must be highly likely. Looking to prior cases, some where the court reviewed de novo, the court concludes that the evidence here did not meet that threshold and was speculative.
Judge Lagesen dissents, although she agrees that the evidence did not establish that appellant was a danger to others. Lagesen argues that because the court is not reviewing de novo deference should be given to the trial court’s conclusion that appellant is a danger to herself. Lagesen cautions that the court should not rely on cases where it reviewed de novo because it obscures the court’s role when it does not review de novo. Lagesen would “discontinue our reliance on our civil commitment decisions in cases decided on de novo review, except where it is clear that a decision represents the resolution of a * * * question of law. I would do so to avoid the risk of erroneously treating a factual determination that we were not persuaded by the evidence in a particular case * * * as a binding legal determination that the evidence described would be legally insufficient to support a different finding.”
State v. S.R.J., 281 Or App 741 (2016) (Flynn, J.) (Lagesen, J., dissenting)
Juvenile Dependency - Appeal Dismissed as Moot
The court dismisses father's appeal of a juvenile court wardship judgment as moot because the juvenile court terminated the wardship. Father contended that he would continue to suffer consequences and that the case is therefore not moot. Specifically, father contended that the judgment may prevent him from volunteering at his other children's schools or coaching their teams, and that there is a social stigma associated with the order. The court rejects those concerns as a basis for continuing the appeal because juvenile court judgments are confidential and it is speculative that the judgment against father would ever be discovered and adversely affect father in the way he claims.
DHS v. S.M.S., 281 Or App 720 (2016) (Garrett, J.)
Search & Seizure - Search Incident to Arrest was Lawful
The court concludes that police lawfully searched defendant's car incident to arrest for possession of methamphetamine, even though defendant had already been removed from the car and arrested for an unrelated probation violation when police developed probable cause to arrest for possession. Defendant was stopped for multiple traffic infractions. The officer noted that defendant seemed nervous and was sweating profusely, which the officer believed were signs that defendant was under the influence of a stimulant. The officer learned of the probation violation and arrested defendant. After defendant was removed from the car, the officer saw a baggie containing a white substance. Police then searched the car and found additional evidence. The court rejects defendant's argument that he no longer had control of the car or its contents, so a search of the car was outside of the scope of arrest. The court explains that because police were searching incident to arrest for evidence of the crime of arrest, they were permitted to search the car so long as the search was reasonable in time, scope, and intensity. Here, the search was reasonable in time, scope, and intensity because it occurred immediately after the officer developed probable cause and defendant had only recently exited the car.
State v. Delfino, 281 Or App 725 (2016) (Flynn, J.)
Juvenile Delinquency - Court is Required to Make Specific Findings Why Out-of-Home Placement is Necessary
The court concludes that the juvenile court is required by ORS 419C.626(3)(a) to make specific findings as to why continued out-of-home placement is necessary, and here, the juvenile court's findings were sufficient. Youth challenged an order that continued him in OYA custody, instead of a placement with his grandmother. In making that order, the juvenile court found that there was a lack of available sex offender treatment options in the area and that youth still needed treatment. The juvenile court further found that youth would present a threat to the community if he were to live with his grandmother. Youth challenged the ruling, arguing that the juvenile court was required to make a specific factual finding that out-of-home custody was necessary. The court agrees that specific findings, not inferences, are required, but those findings must show why it is necessary. Here the juvenile court's findings, taken together, did that.
State v. D.J., 281 Or App 730 (2016) (Flynn, J.)
Per Curiam - Error to Impose Restitution and Suspend SNAP Benefits
In this prosecution for unlawfully disposing of food stamp benefits and theft, the state concedes that the trial court erred in imposing $818.53 in restitution when the record supported an award of only $150.77. Additionally, the state concedes that the trial court erred in imposing a lifetime suspension of SNAP benefits because that ruling was based on the trial court's erroneous determination of the restitution amount as over $500.
State v. Keller, 281 Or App 774 (2016) (per curiam)
Per Curiam - Sentence Exceeded Statutory Maximum
The trial court sentenced defendant to 75 months in prison and 120 months post-prison supervision for first-degree sex abuse. Because the maximum term for that offense, including both incarceration and PPS, cannot exceed 120 months, the trial court erred.
State v. Evans, 281 Or App 771 (2016) (per curiam)
Per Curiam - Reversing Mandatory State Amt and Affirming Attorney Fee Judgment
There was no statutory authority for the trial court to impose a $60 "Mandatory State Amt." The court affirms the attorney fee award because the trial court did not commit plain error. There was evidence that defendant possessed assets and had only a jail sentence.
State v. Stier, 281 Or App 768 (2016) (per curiam)
Per Curiam - Reversing Attorney Fee Judgment
The court concludes that the trial court plainly erred in imposing $460 in attorney fees because there was no evidence in the record that defendant had the ability to pay and it would significantly burden a person without means, especially in light of the other $1,500 in fines that defendant owed.
State v. Hollamon, 281 Or App 766 (2016) (per curiam)
Per Curiam - Reversing Attorney Fee Judgment
Because defendant was sentenced to a lengthy prison term and there was no evidence that he had financial resources, the court concludes the trial court plainly erred in imposing $6,000 in attorney fees and the court grants its discretion to correct the error.
State v. Maipi, 281 Or App 764 (2016) (per curiam)
