Oregon Appellate Ct - June 10, 2015
by: Abassos, Tyler Williams, April Yates and Sean McGuire • June 11, 2015 • no comments
Extension of a Stop – Rodgers/Kirkeby Applies to Non-Traffic Stops
Finding the principles of State v. Rodgers/Kirkeby “categorical, as a constitutional matter”, the court explicitly extends State v. Rodgers to all encounters between law enforcement officers and citizens. Thus, the police may not unreasonably extend the duration of any stop to investigate unrelated matters for which they lack reasonable suspicion. Here, officers stopped a woman for criminal trespass when she failed to pay for parking, then questioned her about gang activity and requested consent to search her vehicle for weapons. Because these unrelated questions increased the duration of the stop, the police were required to have reasonable suspicion that the defendant committed a crime. The defendant’s association with known gang members, recent gang-related shootings in the area, and the time and place of the stop did not create a reasonable suspicion that she possessed weapons. Reversed. State v. Kimmons, 271 Or App 592 (2015).
Invalid Waiver of Counsel - Prejudice - Misunderstanding a Plea Deal
The error of proceeding without a valid waiver of counsel is prejudicial if the defendant misunderstands a plea deal she enters into and counsel could have been able to prevent the misunderstanding. Here, defendant entered a misdemeanor diversion at arraignment. Because she misunderstood the program and an attorney would have been able to correct her misimpression, the error of not appointing counsel was prejudicial. Reversed and remanded. State v Hunt 271 Or App 603 (2015).
Failure to Merge Convictions Is Reviewable By the Appellate Court
Convictions on two different theories for a Felony Assault IV merge into a single conviction at sentencing. Here, the state argued that merger is unreviewable under 138.222(2)(a) because the sentences for each of the convictions that should have merged were within the guidelines range. The court rejects the state's argument, finding that merger is distinct and different from the length of the sentence and, therefore, is reviewable under 138.222(2)(a). Convictions reversed and remanded for resentencing on the single merged count. State v Vargas 271 Or App 675 (2015).
Ability to Pay Attorney’s Fees May Not Be Inferred From Physical Ability to Commit the Crime
Rejecting the State’s argument otherwise, the court is unwilling to infer an ability to work from the defendant’s physical ability to commit assault. The court also finds that “the amount [of court-appointed attorney’s fees] is not so small that it would not present a significant burden to a person without means, and the record is devoid of any evidence regarding the defendant’s ability to pay.” Reversed. Per Curiam. State v. Williams 271 Or App 693 (2015)
Civil Commitments – Failure to Inform the Defendant of Her Right to Subpoena Witnesses Is a Plain Error
Under ORS 426.100, the allegedly mentally ill person in a civil commitment case must know that he or she has a right to subpoena witnesses. The fact that the person’s attorney knows of this right is insufficient. Where the record is silent as to the person’s personal knowledge of his or her right to subpoena witnesses, it is a plain error by the trial court that is reviewable on appeal, even when the defense attorney fails to preserve the issue. Reversed. Per Curiam. State v. R.D.S., 271 Or App 687 (2015)
