Case Reviews/Oregon Appellate Court December 12, 2012

<summary hidden>
* Jury Instructions > Self-Defense Instruction When Defendant Has Not Argued Self-Defense
* The Federal Copyright Act Preempts ORS 164.865, Unlawful Sound Recording
* Speedy Trial > Lack of Judicial Resources May Justify Delay When Adequately Explained
* Appellate Review > Guilty Plea
* Vertical Proportionality > Felony vs Lesser Included Misdemeanor
* Speedy Trial > Implicit Consent to Delay
* PCR > Inadequacy of Counsel - Failure to Argue Merger
</summary>

'''Jury Instructions &gt; Self-Defense Instruction When Defendant Has Not Argued Self-Defense'''

In a trial for aggravated murder, the trial court impermissibly commented on the evidence when it instructed the jury on self-defense because defendant argued that the shooting was accidental not intentional. At trial, the state contended that defendant acted in self-defense during a home-invasion robbery, and requested a jury instruction stating that defendant, as the initial aggressor, had no right to act in self-defense. The court holds that the instruction impermissibly commented on the evidence because it "told the jury how specific evidence (defendant's status as the initial aggressor) relate[d] to a particular legal issue (defendant's ability to successfully raise self-defense)." [http://www.publications.ojd.state.or.us/docs/A144918.pdf State v. Naudain], __ Or App __ (2012).

'''The Federal Copyright Act Preempts ORS 164.865, Unlawful Sound Recording'''

The federal Copyright Act, 17 USC §§ 101-1332, preempts ORS 164.865(1)(b), Unlawful Sound Recording. Section 301 of the Copyright Act provides that the Act preempts a state law if the work at issue is fixed in a tangible medium and comes within the subject matter of copyright as defined in the Act, and the state law creates a right that is "equivalent to any of the exclusive rights within the general scope of copyright as specified by [the Act]." Sound recording is given copyright protection by the federal act. And prohibiting a person from selling or attempting to sell a work without its owner's permission is the functional equivalent of granting the owner exclusive right to control the distribution of the work by sale. Thus, Unlawful Sound Recording is expressly preempted by the plain language of the federal act.[http://www.publications.ojd.state.or.us/docs/A145040.pdf State v. Oidor], __ Or App __ (2012).

'''Speedy Trial &gt; Lack of Judicial Resources May Justify Delay When Adequately Explained'''

Docketing policies and lack of judicial resources may suffice to adequately explain an 18.5 month delay in bringing a defendant to trial Here, defendant was charged with felony possession of methamphetamine and misdemeanor child endangerment. The delay was reasonable in light of the three-year statute of limitations for felonies, the lack of judicial resources in the county, the brief unavailability of a witness, and another judge's decision to prioritize another of defense counsel's cases. The trialcourt adequately explained the delay by setting out in detail the recurring, systemic reasons why a judge could not have been available for defendant's trial dates. [http://www.publications.ojd.state.or.us/docs/A145768.pdf State v. Coburn], __ Or App __ (2012).

'''Appellate Review &gt; Guilty Plea'''

The Court of Appeals does not have jurisdiction under ORS 138.050 to review a conviction based on a plea of guilty. Even where the plea was entered prior to a diversion. And even where the court first dismisses, then withdraws the dismissal to enter a judgment of conviction.

ORS 138.050 allows review after a guilty plea only if the trial court's "disposition" is one that exceeds the maximum allowable by law or is cruel and unusual. The legislative history of the statute shows that the purported error must concern the sentence, not the conviction itself. The word "disposition" was substituted for the word "sentence" in the statute in 1989 due to uncertainty about whether a term of probation was within the meaning of the word "sentence." The amendment did not expand the statute to cover the validity of a conviction. [http://www.publications.ojd.state.or.us/docs/A146189.pdf State v. Landahl], __ Or App __ (2012).

'''Vertical Proportionality &gt; Felony vs Lesser Included Misdemeanor '''

To determine the vertical proportionality of a sentence for a lesser included crime, you compare the actual sentence imposed to the maximum departure sentence allowed by law for the greater offense. Defendant argued that his revocation sentence for misdemeanor assault IV could not exceed the potential revocation sentence for felony assault IV. The actual comparator, says the court, is the maximum departure sentence that was originally available on the felony, not the maximum for the felony revocation. Here, the 18 month departure sentence he could have received on the felony exceeded the 12 month sentence he received on the misdemeanor revocation. Therefore, it was vertically proportional. [http://www.publications.ojd.state.or.us/docs/A145096.pdf State v Barajas]

'''Speedy Trial &gt; Implicit Consent to Delay'''

When a defendant who is incarcerated on other charges knowingly fails to demand a speedy trial under ORS 135.760, the prosecution delay during that incarceration is deemed to have been caused by [the] defendant for purposes of ORS 135.747. Here, defendant failed to file a speedy trial demand on a theft charge while she was serving time in prison on a Burglary. She knew how to file a speedy trial demand because she previously filed one and received a speedy trial. Since the defendant caused the delay it was a reasonable delay. [http://www.publications.ojd.state.or.us/docs/A145579.pdf State v Baranovich] ''Query'': how would the state establish a knowing failure if defendant has not previously filed a speedy trial demand?

'''PCR &gt; Inadequacy of Counsel - Failure to Argue Merger'''

A trial attorney is constitutionally inadequate where he or she fails to argue for the merger of multiple counts based on alternative theories. Here, defendant was convicted of 2 counts each of Rape I, Sex Pen I and Kidnap I where the state proceeded both on the theory that the victim was under 12 and that there was forcible compulsion. Trial counsel should have known, at the time of sentencing, that merger applies where a single statutory provision is violated in multiple ways because State v Barrett pointed in that direction. Barrett held that there could be only one aggravated murder sentence where there is a single victim with multiple theories for aggravation. To the extent there was any uncertainty in the law, it did not relieve counsel of the duty to make the argument since there was no downside to doing so and the benefits were obvious[http://www.publications.ojd.state.or.us/docs/A145099.pdf . Bumgarner v Nooth]

There were no per curiam cases today.
{{wl-publish: 2012-12-12 13:52:09 -0800 | etobias }}
{{wl-publish: 2012-12-12 13:52:09 -0800 | abassos }}