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by: Abassos • May 18, 2011 • no comments
From David McDonald:
Today, the Oregon Supreme Court will hear the first appeal alleging a violation of a victim's statutory and constitutional rights under chapter 147.500. Eric Johansen from OPDS is handling the appeal on behalf of the defendant, Ivey Barrett. The argument is scheduled for 1:30 on Thursday, May 19, 2011. It should be available via the new streaming capability.
In 2009, Oregon passed Ballot Measures 51 and 52 that amended the Oregon Constitution provisions Article I § 42 and 43, in part, to provide for a remedy for violations of victim's rights enumerated in those Articles. In response, the legislature enacted a number of new statutes which were to statutorily embrace the enumerated constitutional rights and to provide a remedy to a person designated as a victim who alleged a violation of those rights. The majority of the statutes are found in Chapter 147.500 (Chapter 147.500 et seq is contained in Chapter 147 which is titled Victims of Crime and Acts of Mass Destruction). Part of those rights provide for an automatic expedited interlocutory appeal to the Oregon Supreme Court for a designated victim who has alleged a violation and been denied a remedy.
The basic facts in the case today are that a man in Washington County had a number of counts of Stalking and VRO, along with allegations of violation of probation, with regards to a woman with whom he was estranged. All of the charges were misdemeanors. The state verbally informed the woman of her rights and sent out a standard form which is also available directly on their website but did not file a compliance notification under (see UTCR 4.100.1a). It should be noted that there is apparently no obligation to file this UTCR form where the charges are misdemeanors. ORS 147.510.
The woman was in contact with "her" victim's advocate and was aware of the PreTrialConference hearing set on February 28, 2011. The DDA in court on the day of the PTC in Washington County had not received the signed form back from the woman by the time he went to court. The DDA and defense attorney worked out a plea deal at the PTC. The judge then sentenced the defendant and his sentenced commenced. The woman did return the form with a request that the DA assert rights on her behalf and give her notice of all Critical stages of the criminal proceedings ( Critical stages are defined in ORS 147.500 and the procedures for those hearings is set forth in ORS 147. 510). Critical Stages include sentencing proceedings. However, it did not arrive in the DA's office until February 28, 2011.
When the woman learned of the result, she protested and the DDA went back to court to stipulate that the woman's statutory and constitutional right to be present at the hearing at been violated. The DDA and OCVLC filed a motion and order to vacate the sentence. Judge Knapp found that the woman's rights had been violated but the statutory scheme provided no remedy and denied the motion to vacate. The order denying the motion to vacate was filed and this interlocutory appeal followed pursuant to ORS 147.535 and ORS 147.537.
Eric Johansen filed a brief and then a Motion for Summary Affirmance arguing that the record in this case does not support the fact that the woman's statutory and constitutional rights were actually violated. In addition, tot he issues outlined in the briefs, the Court has posited two specific questions to the litigants:
(1) Would resentencing the defendant over the defendant's objection constitute "invalidat[ing] * * * [a] conviction or adjudication" in violation of the prohibition of Article I, section 42(2) of the Oregon Constitution?
(2) Would resentencing the defendant over the defendant's objection be inconsistent with the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?
The court has determined that the appellant/designated victim gets 1/2 hour and the DOJ on behalf of the state and Eric on behalf of Mr. Barrett each get 15 mins.
