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Oregon Supreme Ct - June 22, 2017

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by: Sara Werboff • June 26, 2017 • no comments

Sentencing - Sentence Was Not Vindictive When Overall Sentence was Shorter

The court concludes that the trial court did not impose a vindictive sentence when, on remand, the trial court imposed an overall shorter sentence but imposed a longer sentence for an individual misdemeanor count. First, the court rejects the state’s argument that the court lacks jurisdiction to hear the case. The state argued that because defendant was only challenging a misdemeanor sentence, review was precluded. The court explains, after reviewing ORS 138.222, that ORS 138.222(7) allows the state or defendant to appeal a judgment containing one or more convictions for felonies, even if the judgment also contains misdemeanors.

On the merits, the court explains that in order to establish a sentencing is unconstitutionally vindictive, the defendant must show that the trial judge had an improper motive and imposed a more severe sentence. As to improper motive, the court rejects defendant’s argument that when the same judge imposes both the original and new sentences, any subsequent harsher sentence should be presumed vindictive because the judge will have a subconscious or unconscious bias. The court explains that although the effects of such biases can be profound, they lack the purpose or intention required for an improper motive and they conflict with the fundamental tenets of the justice system, that judges are presumed impartial. As to whether the sentence is more severe, the court rejects defendant’s proposed “remainder aggregate” approach which looks to whether for each remaining count, the sentence is lengthier. Instead, the court looks to the total aggregate sentence. Because defendant would serve overall fewer months, the sentence was not more severe.

State v. Febuary, 361 Or 544 (2017) (Balmer, C.J.)

Sentencing – Trial Court Erred in Failing to Consider Whether Defendant’s Intellectual Disability Rendered Measure 11 Sentence Unconstitutional

The court reverses defendant’s measure 11 sentence and remands for the trial court to consider whether evidence of defendant’s intellectual disability made the sentence arguably unconstitutional because that evidence, if credited, would show that defendant’s age-specific intellectual capacity fell below the minimum age level for criminal responsibility for a child. Defendant was convicted of first-degree sexual abuse. Defendant had a well-documented intellectual disability and neither party appeared to dispute that defendant had capacities of a 10-year-old. The trial court, however, imposed a mandatory minimum sentence, apparently concluding that it could not consider whether defendant’s intellectual disability made the sentence unconstitutionally disproportionate.

The court first declines to consider defendant’s argument that the availability of treatment options rendered a prison sentence unconstitutional, concluding that that argument is underdeveloped. The court then concludes that defendant’s intellectual disability is pertinent to assessing the gravity of the offense, and the trial court’s subsequent weighing of the gravity against the severity of the penalty.

Chief Justice Balmer concurred, emphasizing that constitutional challenges are not the best way to grant discretion to the trial court’s and that a legislative fix is more appropriate.

State v. Ryan, 361 Or 602 (2017) (Brewer, J.) (Balmer, C.J., concurring)

Search and Seizure – Although WA Officer Lacked Authority to Stop Defendant, Evidence Was Constitutionally Obtained

The court concludes that evidence obtained during a stop in Oregon by a Washington police officer was admissible. A Washington officer observed defendant commit traffic infractions in Washington and pursued him into Oregon where he stopped him, believed he might be intoxicated, and called the Portland police. On appeal, the Court of Appeals reversed because no Oregon law gave the Washington officer authority to make the stop in Oregon. On review, the court concludes that there was state action and the office lacked statutory or common law authority to stop defendant. Nonetheless, the court concludes that the lack of authority does not make a seizure per se unreasonable, instead, the court looks to whether the overall stop was reasonable. Here, because the Washington officer’s conduct in stopping defendant was reasonable, the stop was constitutionally valid.

State v. Keller, 361 Or 566 (2017) (Walters, J.)