Oregon Appellate Ct - Dec. 24, 2014

Revision as of 17:36, January 1, 2015

Restitution - Not Limited By Civil Rules

Restitution is not limited to damages recoverable in a civil action. Here, the victim was entitled to restitution for any verifiable monetary loss even if, in a civil action, he would have been limited by contributory negligence to a smaller amount. State v Kreiss, 267 Or App ___ (2014)

DUII Breath Test - Right to Counsel Before Test - Officer Must Be Out of Earshot When Attorney Call is Made

An officer must be out of earshot when defendant makes the call to his attorney. The right to a reasonable opportunity to consult with counsel before deciding whether to submit to a breath test includes the right to a private consultation. Here, defendant was only able to contact his attorney's receptionist, rather than his attorney. However:

"That difference does not lead to a different result. An attorney may not always be available to speak directly with a client. As a result, a receptionist can, and often does, serve as a conduit of confidential communications between a client and the attorney."

Reversed. State v Lile, 267 Or App ___ (2014)

FAPA Restraining Order Violation - A Contact By Court Document Can Still Be a Contact

A personal letter to a FAPA petitioner, after a restraining order has been imposed, is no less a contact merely because it is embedded within a court document. Here, defendant filed a pro se document within the context of contesting a restraining order that was primarily a subterfuge for speaking directly to the petitioner, including statements addressed directly to her, such as "Bye Baby. : ) I will ALWAYS love you! Thank you for every second!". The court has no difficulty finding that the trial court appropriately ruled that defendant had the requisite intent to violate the restraining order and that it constituted a violation of the order, despite the exception within the order for "documents related to a court case". State v Crombie, 267 Or App ___ (2014).

Ct Appointed Atty Fees Require a Finding of Ability to Pay

The appellate court reverses, as plain error without preservation, the imposition of $6000.00 in attorney fees because there was no evidence that defendant had the ability to pay and was sentenced to 200 months in prison:

"We conclude that the trial court plainly erred, because the record does not contain sufficient evidence to support a finding that defendant was or might be able to pay the court-appointed attorney fees. There is no evidence that, as of the time of sentencing, defendant possessed assets sufficient to satisfy the award of fees or that he would receive income during his lengthy incarceration that could be applied toward that obligation."

State v Mejia-Espinoza, 267 Or App ___ (2014)

PCR - IAC - Advice to Plea to Agg Murder With Death On the Table is Not Necessarily Ineffective

There is no per se rule that advising a defendant to plead guilty to aggravated murder is ineffective, even where there is no concession from the state regarding the death penalty. There is a broad national consensus of court opinions that there is no per se rule that such advice would be ineffective and even the ABA guidelines allow for occasions where it makes sense. The particular representation in this case was not ineffective because (a) evidence of guilt was overwhelming, (b) there was no chance of the DA giving a non-death offer and (c) concessions were obtained as part of the plea deal that increased the likelihood that a jury would not impose a death sentence. Specifically, the state dismissed all charges except the two counts of aggravated murder, withdrew a motion for a jury view of the crime scene, agreed to hearsay testimony instead of live testimony for numerous witnesses and stipulated that the defendant gave a detailed, truthful confession to the police and that the murders may well have remained unsolved without defendant's cooperation. "In sum, given the horrific nature of the murders, the damning evidence of petitioner's guilt, the prosecution's refusal to bargain over the death penalty, and the inclusion of certain, potentially useful, concessions in the plea agreement, trial counsel's advice to plead guilty without a death penalty waiver did not amount to constitutionally inadequate assistance." Simonsen v Premo, 267 Or App ___ (2014)

Invited Error - Attorney Fees

Where the defense wrongly frames an issue and then assents to the judge's decision, he cannot then successfully appeal the unpreserved error. Here, defendant's attorney told the sentencing court that attorney fees were "optional, based on the ability to pay", suggested a specific amount to impose and, when the judge imposed attorney fees, told the court "everybody's good with that". Thus, defendant was "no longer in a position to argue that the trial court lacked the authority to impose any attorney fees." State v Cook, 267 Or App ___ (2014)

Stops – Fourth Amendment Extension – Passengers

A vehicle passenger is unlawfully seized under the Fourth Amendment when an officer inquires into matters unrelated to a traffic stop without reasonable suspicion or probable cause. The fact that an officer told a passenger that he was “free to leave” does not compel a contrary result if the officer communicated that permission after the stop was unlawfully extended. State v. Clemons, 267 Or App ___ (2014)

Preservation of Error – Disagreeing with Case Law Not Sufficient to Preserve Error

No preservation of error where trial attorney mentions, generally, the due process clause of the constitution. Here, trial attorney argued that a jury instruction would violate due process. Because “the gravamen” of the objection was the trial attorney’s disagreement with the case law, the objection did not sufficiently preserve the argument, argued on appeal, that a jury instruction resulted in burden shifting from the state to the defense. Furthermore, even if the trial court was in plain error, the COA refused to exercise its discretion to correct the error where the disputed jury instruction was unrelated to defendant’s theory and if raised at the time of trial would have afforded the trial court judge an opportunity to correct the instruction. State v. Blasingame, 267 Or App ___ (2014).

Civil Commitment – Where Serious Disability, COA Looks Beyond Concession of Error

Evidence of low IQ, refusal to take medication, assaultive behavior, prior sexual exploitation of appellant, and inability to participate in programming without the help of staff is sufficient to justify commitment even if the state concedes that there was insufficient evidence for commitment. Here, appellant had an IQ of 59, had been in and out of group homes and jail throughout his life, had escaped from a group home and engaged in harassing and assaultive behavior, believed his father was an American president, and refused to take his medicine when left on his own was sufficient to justify commitment even though the state conceded error in the sufficiency of evidence to commit appellant. State v. R.L.W., 267 Or App ___ (2014).

Parenting Rights – Continuing Jurisdiction Cannot be Based on Past Parental Behavior Without Evidence Indicating Future Harm

DHS cannot continue its jurisdiction over a child based on parent’s past conduct without individualized evidence that parent will harm child in the future. Here, DHS took jurisdiction over children after an incident of domestic violence between mother and father where mother downplayed father’s abusive behavior. At the time of a hearing to continue DHS’s jurisdiction, mother had gone through domestic violence counseling, had been noted as having strong parenting skills by DHS, and although planned to reunite with father, father would have been subject to the conditions of probation and would not have immediate full contact with children. Because the record indicated mother’s strong parenting skills, a good relationship with her children, and that she had learned the skills needed to protect them from any abusive conduct by father, there was insufficient evidence to continue DHS jurisdiction. Dept. of Human Services v. L.C., 267 Or App ___(2014).

SPO – General Fear of Harm Following Reception of Benign Letters Not Sufficient for SPO

A general statement that a person believes another might hurt them without any specificity about the harm, whether it is emotional or physical, is not sufficient to warrant an SPO. Here, respondent, who might have been petitioner’s biological father, sent petitioner several letters discussing benign matters such as respondent’s job, dog, and where he lived. Petitioner testified that she felt that respondent might hurt her because of his allegedly abusive conduct against petitioner’s mother a decade prior000. Although it might have been inappropriate for respondent to contact petitioner in the manner he did, the benign content of the letters did not lead petitioner to have an objectively reasonable fear for her safety, thus there was insufficient evidence to warrant an SPO P.M.H. v. Landolt, 267 Or App ___ (2014).

Burglary – Exceeding an Implied License to Use Property is Trespass

For the purposes of Burglary, an unprivileged license or stay occurs when a person ignores the implied limitation of entering a home to only use one part of the home. Here, defendant entered complainant’s home after asking complainant if he could use complainant’s bathroom. Complainant, who did not know defendant, assented and gave direction to the bathroom. Defendant emerged twenty minutes later. After defendant left, complainant noticed that her purse had been taken. Given how defendant and complainant were strangers and complainant gave explicit directions to the bathroom, a reasonable jury could find that defendant exceeded the scope of his license to remain in the home. State v. Evans, 267 Or App ___ (2014).