Oregon Appellate Ct - April 15, 2015

Revision as of 07:53, April 18, 2015

Failing to Report as a Sex-Offender – State Doesn’t Need to Prove Location on the 10th Day

For Failure to Register as a Sex-Offender, the prosecutor does not need to show where the defendant was on the tenth day after an alleged unreported change of residence. Here, where the defendant had admitted to not having been at his grandfather’s house (his reported address) for twenty-seven days, a rational finder of fact could find that the defendant had not reported the change of address within the ten day time period permitted by former ORS 181.806 to 181.808. MJOA denied. State v. Streeter, 270 Or App 441 (2015).

Sentencing – Can’t Impose Post-Prison Supervision That Would Exceed Statutory Maximum

When a court chooses to correct an error in the judgment under ORS 138.083, it is an abuse of discretion to fail to correct additional clear errors. Here, the Defendant was convicted of a C felony and sentenced to sixty months prison with thirty-six months of post-prison supervision on both the felony and some accompanying misdemeanor. The Defendant filed a motion under ORS 138.083 to modify the judgment. The court corrected its error in giving post-prison supervision on the misdemeanors, but did not modify the felony sentence to keep it within the statutory maximum. Because the trial court clearly indicated its intent to comply with Oregon sentencing rules, misstated the law, and failed to review dispositive cases brought to the court’s attention, its failure to correct the erroneous felony sentence was an abuse of discretion. State v. Larrance, 270 Or App 431 (2015).

Merger – No Merger Where Offenses Arising From the Same Incident Are “Temporally and Qualitatively Different”

Under ORS 137.123(5)(a) (dealing with consecutive sentences for conduct originating from the same criminal episode), a trial court does not have to merge offenses that result from the same incident when the offenses are “both temporally and qualitatively” distinct and not merely incidental to one another. Here, the Defendant was convicted of Robbery I and Aggravated Murder when he ordered the complainant to hand over his wallet at gunpoint. When the complainant refused and tried to drive away the Defendant shot him in the arm. Because the robbery took place at a distinct, separate time from the shooting and was not incidental to the shooting, and the shooting expressed a willingness to commit another offense, the two offenses did not merge. State v. Martinez, 270 Or App 423 (2015).

Conditions of Probation – Complete Internet Ban Okay Where it Furthers the Purposes of Probation

Where it serves the purposes of probation, a probation officer may impose a complete ban on internet access. Here, the Defendant was on probation for ten years following his conviction of several sex-offenses related to sexual acts with a ten-year old when the defendant was fourteen or fifteen. Because the defendant had: 1) attended two events where children were present; 2) viewed pornography on his father’s computer; 3) admitted to having fantasies about his victim; and 4) had relationships with two 17-year-old females, which included communicating through social networking sites, the complete ban on the internet would reduce the risk of defendant contacting minors and increase the likelihood that the Defendant would complete probation. The court notes, in footnote 3, a line of argument still open for defense counsel: that a complete ban would violation the constitution because internet use is a fundamental right. In this case, the issue wasn't preserved in the trial court. State v. Maack, 270 Or App 400 (2015).

PSRB – OAR 859-050-00100 Does Not Conflict With the ORS

OAR 859-050-00100, dealing with notice of rights in Psychiatric Security Review Board hearings, does not conflict with ORS 161.346 and ORS 183.413. Although the OAR does not list all the rights guaranteed by ORS 161.346 and ORS 183.413, the rule “does not limit the advisements that the notice may contain . . . it merely provides that those [enumerated] items must be included.” Accordingly it does not conflict with the statute. Smith v. PSRB, 270 Or App 386 (2015).