Oregon Appellate Court - March 13, 2013

by: Jwestover and Abassos • March 13, 2013 • no comments

Chaidez Comes to Oregon

In Chaidez v. United States, the U.S. Supreme Court's rule Padilla v. Kentucky (decided March 31, 2010) (defense attorney’s failure to inform client that deportation could result from guilty plea constitutes ineffective assistance) may not be applied retroactively. Here, PCR petitioner pled to felony failure to appear on January 22, 2008, but claims ineffective assistance of counsel regarding the immigration consequences of his conviction. As petitioner’s conviction was final prior to Padilla, petitioner is foreclosed from benefitting from its rule. Saldana-Ramirez v. Oregon, 255 Or App ___ (Mar. 13, 2013).

Blakely Notice Must Be Specific and Actual

The state must specifically enumerate which enhancement factors it intends to rely upon in seeking upward durational departures in sentencing, and must give actual notice of its intent to the defendant. Here, the State informed defendant that it "may seek" as many as 18 upward departures (including "other") “on all counts on all cases addressed by this PTO.” At sentencing, the state submitted jury instructions for four enhancement factors, and the trial court used them to apply an upward durational departure sentence. The court reverses and remands for resentencing after finding:

• The state’s notice of “may seek” is equivalent to “That’s for us to know and you to find out,” and is thus “no notice at all.”
• Submitting jury instructions to the court does not prove notice was given to the defendant. Thus, again no notice was provided.

State v. Alexander, 255 Or App ___ (Mar. 13, 2013).

Merger—Two Counts of Kidnapping I

Kidnapping is a continuous crime as long as the defendant remains in control of the victim. Here defendant’s act of driving child victim to one remote place and then subsequently driving victim to a second place constituted a single violation. The court finds that defendant’s two counts of first degree kidnapping should be merged. State v. Gerlach, 255 Or App ___ (Mar. 13, 2013).

Sometimes You Just Have to Keep Objecting to Preserve

Failing to counter a prosecutor’s response to an evidentiary objection may result in non-preservation of the issue. Here, a DA sought to have multiple child victims read letters they had written to the DA shortly after defendant was charged. The letters contained additional hearsay statements from a police officer and a school administrator. In response to defendant’s hearsay (and double hearsay) objections, the DA explained that a) the letter fit into a hearsay exception (OEC 803(18a)(b)), and b) the statements of the officials were both not double hearsay and not offered for their truth (they were offered for their effect on the listener). Instead of objecting to the DA’s explanation, defendant moved on to another argument. The trial court agreed with the prosecutor and the entirety of the letters was introduced. The court finds that defendant’s failure to object to the DA’s explanation precludes review on the issue of the officials’ statements. State v. Ferry, 255 Or App ___ (Mar. 13, 2013).

PER CURIAM OPINIONS:

• Unlawful Extension of a Traffic Stop—the state concedes that an officer unlawfully extended a traffic stop without reasonable suspicion of criminal activity. Denial of defendant’s motion to suppress is reversed. State v. Lark, 255 Or App ___ (Mar. 13, 2013) (per curiam).