Numerous and Notable OSC Grants
by: Ryan • October 5, 2012 • no comments
Today, the Oregon Supreme Court announced a number of new cases upon which they have bestowed review.
First, though, it is worth noting they also dismissed review as improvidently granted in State v. Quandary Nelson. This is the case where the COA reversed the defendant's conviction for rape because the trial court erroneously denied the defendant's request for a special jury instruction. Nice work by Ernie Lannett (Oregon Supreme Court), Jesse Barton and Charles Simmons (Court of Appeals) and Kami White (trial). And it's another example of the importance of special jury instructions.
And the other cases. It's late, so I'm just going to list the questions presented, and if you want to find out the cases they attached to, you can find the media release here. (You'll also find a list of mandamus petitions which were denied.) Many of the questions presented will, I'm sure, be the subject of future posts.
Questions presented:
If the prosecution fails to comply with ORS 137.106(1) for the imposition of restitution -- which requires that the district attorney investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of the victim's economic damages -- and the case is remanded for resentencing, does the trial court retain authority to impose restitution?
(1) Are public and official records proffered as substantive evidence of contempt exempt from the confrontation rights guaranteed under Article I, section 11, of the Oregon Constitution, such that the proponent of the evidence need not establish that the declarant is unavailable to testify?
(2) Is a proof of service affidavit that is used in a punitive contempt proceeding testimonial evidence, subject to the demands of the Confrontation Clause under the Sixth Amendment to the United States Constitution?
Whether the Court of Appeals, in determining that the term "judgment" in ORS 166.270(3)(a) refers only to the original judgment:
(a) Violated ORS 174.010;
(b) Misapplied the principles of PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009);
(c) Disregarded the Supreme Court's language in Bailey v. Lampert, 342 Or 321, 153 P3d 95 (2007), and State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011), to the effect that "status" as a felon for purposes of ORS 166.270 is determined at the time of possession rather than at the time of initial judgment.
(1) With respect to PCC 14A.60.010(A), which makes it unlawful for any person to "knowingly possess or carry a firearm, in or upon a public place, * * * recklessly having failed to remove all the ammunition from the firearm," what does the adverb "recklessly" modify, i.e., does the ordinance prohibit a person from knowingly possessing or carrying a firearm in a public place when the person is aware of and consciously disregards a substantial and unjustifiable risk that the firearm is loaded?
(2) Does PCC 14A.60.010(A) violate Article I, section 27, of the Oregon Constitution?
(3) Does PCC 14A.60.010(A) violate the Second Amendment to the United States Constitution?
(1) Does Article I, section 11, of the Oregon Constitution require the state to prove, as an element of a charged offense, that a charged offense occurred in a particular county?
(2) If the state must prove venue, may an appellate court consider a trial court's expressly stated knowledge about facts related to venue in determining the sufficiency of evidence on venue?
