A Book from the Library of Defense

Oregon Supreme Court - February 28, 2019

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by: Rankin Johnson • March 12, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

EVIDENCE — Hearsay, official records, and business records.

Records generated by police agencies are not admissible as business records but may be admissible as official records. Reversed and remanded for new trial.

State v. Edmonds 364 Or 410 (February 28, 2019) (Balmer) (Clackamas County, Van Dyk)

FAILURE TO APPEAR — 'Released from custody' element of offense

A book-and-release process ordered by a judge is not 'custody,' as that term is used in the failure-to-appear statutes, and therefore the court erred in denying a motion for judgment of acquittal. Reversed.

State v. McColly 364 Or 464 (February 28, 2019) (Nelson) (Tillamook County, Stevens)

POST-CONVICTION RELIEF — Statute of limitations escape clause

Post-conviction petitioner was advised of potential immigration consequences at the time of his plea, and therefore his ignorance of those consequences did not toll the statute of limitations. Affirmed.

The court also noted that the record raised the issue of whether the petitioner's mental disabilities were a basis to toll the statute of limitations. But, because petitioner alleged, in a declaration attached to the petition, that he would not have pleaded guilty if he had known the immigration consequences, the court held that he was mentally competent to understand the significance of immigration consequences.

The court further noted that the evidence of defendant's mental disabilities did not show that it prevented him from consulting with counsel or timely filing a petition.

Perez-Rodriguez v. State 364 Or 489 (February 28, 2019) (Nelson, Balmer dissenting) (Washington County, Kohl)

POST-CONVICTION RELIEF — Statute of limitations escape clause

Post-conviction petitioner was unaware of potential immigration consequences until he was placed in deportation proceedings, by which time the post-conviction statute of limitations had expired, and therefore the statute of limitations was tolled. Reversed and remanded.

The court explained that, because neither the court nor defense counsel told petitioner of the possibility of immigration consequences, a reasonable layperson in petitioner's position would have had no reason to investigate or consult with counsel. The resulting rule is similar to the civil discovery rule for tolling a statute of limitations.

Balmer dissented, arguing that petitioner had all the facts necessary to his claim. Balmer would have held that the petitioner's legal ignorance did not make his failure to seek counsel reasonable.

Gutale v. State 364 Or 502 (February 28, 2019) (Nelson) (Washington County, Bailey)