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Oregon Supreme Ct - Aug 10, 2017

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by: Sara Werboff • August 11, 2017 • no comments

Sentencing - Second Judge was Authorized to Give More Severe Sentence on Remand

The court upholds a sentence, given on remand following a successful appeal, that was longer than the original sentence. In the original case, defendant was given a 250 month sentence for various crimes, including first and second-degree kidnapping and UUW. Defendant appealed and the court reversed the second-degree kidnapping charges. By that time, defendant had served his sentences for UUW. On remand, defendant appeared before a different judge. The state filed sentencing enhancement factors. In light of those factors, the judge imposed an upward durational departure on the first-degree kidnapping charge and the presumptive sentence on the UUWs to be served consecutively for a total sentence of 276 months.

Defendant raises three challenges to the sentence. First, defendant contends that common law prohibits a sentencing court from modifying a sentence that has been served. The court disagrees, explaining that statute ORS 138.222(5)(a) and (b) give the trial court authority over the entire case on remand and authority to craft a “package sentence.” For similar reasons, the trial court also rejects defendant’s second argument, that double jeopardy prevents resentencing on sentences that have been served.

Finally, defendant contends that the second sentence violates the Partain rule. The court explains that when a different judge sentences a defendant on remand, the Partain rule functions differently. A second judge who believes an offender should receive a more severe sentence must still give affirmative reasons on the record. However, unlike Partain, those reasons are sufficient so long as they are “wholly logical, nonvindictive reasons.” The second judge is not required to base a harsher sentence on reasons that were unknown to the court at the time of the original sentencing. In this case, in light of the enhancement factors found during the second sentencing, the trial court put forward a logical, nonvindictive reason for its sentence.

State v. Sierra, 361 Or 723 (2017) (Walters, J.)


Unauthorized Use of a Vehicle – “Vehicle” for Purposes of UUV Does Not Require Current Operability But Must Establish that It is Reasonable to Restore to Operative Condition

The court reverses defendant’s conviction for UUV because there was no evidence from which a rational factfinder could conclude that the vehicle in question could be restored to operability. The complainant, Stuart, owned a truck that was 21 years old. The clutch had given out and she towed the truck to a parking lot. Although the truck was inoperable, Stuart stored tools in it. The truck sat in the lot for four or five months. Defendant noticed the truck parked in the lot for a few days and did not know who owned it. He called an auto wrecking company to have the truck towed, and asserted that he had a possessory lien on it. Later that day, Stuart noticed the truck was gone and called the police. Police found the truck and returned it to Stuart, who ultimately sold the truck for scrap. A mechanic for the scrap company concluded that the truck was “no good,” “not operable,” and “strictly just scrap.”

Defendant argued that because the truck was inoperable, it was not a vehicle for purposes of UUV. The court concludes, after reviewing text, context, and legislative history, that UUV does not require that the vehicle be currently operating, even if the vehicle is in need of extensive repairs. However, the vehicle cannot be in “such a state of disrepair as to constitute a ‘wrecked’ vehicle.” That determination is left to the trier of fact. In this case, however, the court concludes that no reasonable factfinder could find that the vehicle was in such a condition that it was reasonable to invest in repairing it to restore it to running condition.

State v. Eastep, 361 Or 746 (2017) (Landau, J.)


Search and Seizure – Warrantless Entry in DUII Investigation was Not Justified by Exigent Circumstances

The court reverses a Court of Appeals decision upholding the denial of defendant’s motion to suppress. Approximately four hours after defendant was involved in an accident where it was alleged he was intoxicated, police located defendant inside his trailer. Police entered the trailer without a warrant and arrested defendant. Police did not believe that defendant would consent to a breath test, but defendant did so consent, and had a .14 BAC. At his DUII trial, defendant challenged the warrantless entry into his trailer. The trial court denied the motion to suppress and the Court of Appeals affirmed. The state petitioned for review, however, because it disagreed with the Court of Appeals reasoning in that the Court of Appeals would require the state to show how long it would take to obtain a warrant and that all evidence in defendant’s blood would be lost during that time. On review, the state contended that it need only show that any evidence would be lost. Defendant contended that the home entry was not justified by exigent circumstances in this case.

The court on review does not decide the issue that the state pressed, because it concludes that the record does not establish an exigency. The court notes that, unlike a blood draw, a home entry does not directly preserve blood evidence. Here, police did not think that defendant would consent to a breath test, so there was no reason for the police to think that the delay in obtaining a warrant would delay a consensual breath test. Similarly, the court rejects the state’s argument that the warrantless entry would either preserve evidence of defendant’s refusal to take a breath test or observational evidence. Neither were the objects of the search in this case. The state therefore failed to establish that the officers reasonably believed they were faced with an exigency when they made a warrantless entry into defendant’s home.

State v. Ritz, 361 Or 781 (2017) (Baldwin, S.J.)