Oregon Appellate Ct - May 16, 2016
by: Abassos and Aalvarez • May 20, 2016 • no comments
A Request for DNA Testing is Not a “Collateral Attack on the Validity of Defendant’s Conviction”
Defendant was not barred from seeking post-conviction DNA testing under ORS 138.690 where his plea agreement barred him from making a “collateral attack on the validity of defendant’s conviction” because:
“[A] successful motion under ORS 138.690 yields, at best, an order for DNA testing, which is plainly not, itself, an attack (collateral or otherwise) on the validity of defendant’s conviction, sentence, competency of counsel, or plea proceeding. In other words, the motion itself cannot be said to raise a challenge prohibited by the plea agreement. That it might, eventually, lead to such a challenge is beside the point. Only if the testing produces exculpatory results is defendant entitled to le a motion for a new trial based on newly discovered evidence; we leave for another day the question whether that filing would be barred by the plea agreement.”
State v. Johnson, 278 Or. App. 344 (2016)
Attorney’s Fees – Plain Error Where Insufficient Evidence of Ability to Pay
Two plain error reversals out of Washington County of the imposition of attorney’s fees where there was insufficient evidence of ability to pay.
State v. Boss, 278 Or. App. 380 (2016) and State v. Lopez-Silva, 278 Or. App. __ (2016)
Permanency – Right to Participate in Hearings
The juvenile court erred in denying father’s right to “participate in hearings” under ORS 419B.875(2) when it conducted the final day of a permanency hearing in father’s absence, “despite the fact that father, who was incarcerated, had secured an order to be transported to the hearing.” Father’s absence meant that father’s attorney was unable to author letters written by father, which were a critical part of father’s argument that DHS failed to make reasonable efforts toward reuinification because, in part, of DHS’ refusal to deliver the letters written by father to his children. Further, resolution of that dispute was material to the court’s decision as to whether or not DHS had made reasonable efforts towards reuinifaction.
Father’s right to participate in the hearing included his right to consult with counsel about strategic evidentiary decisions and to complete his presentation of the evidence. In denying father that right, the court denied his right to participate.
DHS v. A.E.R., 278 Or. App. 399 (2016)
Dependency – ICWA Is Not Retroactively Applicable Once the Court Has Reason to Know of Tribal Membership
The court had no reason to know that the children in this dependency case were “Indian children” at either the time of the placement decision or the permanency judgment. The only knowledge that could be imputed to the court, through DHS, was (1) a prior decision from the relevant tribe that mother and her children were not members of the tribe and (2) a form filled out by mother in which she denies having Native American ancestry. Because the court had no reason to know of Indian membership, it had no duty to apply the higher standards under the Indian Child Welfare Act (ICWA). Moreover, a later decision by the tribe that mother and children were members did not require the court to revisit prior decisions made in accordance with the Oregon standards.
DHS v J.D.H., 278 Or App 427 (2016)
Dependency – TPR – Service of Termination Petition in Absence of Parent
Service by publication in Deschutes County was an appropriate method for DHS to serve mother with the termination petition and summons. Publication was appropriate because, despite extensive efforts, DHS was unsuccessful in identifying an address for mother. Publication in Deschutes County was appropriate because the only information that DHS had of a different residence was that a paralegal had looked at mother’s Facebook page which indicated that she resided in Bend, Oregon but was “in Florida, near Tampa”. Such a record, without more, is too tenuous for DHS to understand Florida to be a “location that might reasonably result in actual notice” DHS v K.G.A.B., 278 Or App 391 (2016)
PCR - ORS 138.550(2) – Whether Petitioner Barred From Raising Claims That Should Have Been Raised on Direct Appeal
Although a petitioner in a PCR case is generally barred from raising claims that were not, and should have, been brought during his direct criminal appeal, ORS 138.550(2) provides an exception to petitioner’s who could not afford to obtain appellate counsel and who, for whatever reason, were not provided counsel on appeal.
Here, the Court of Appeals reversed the post-conviction court’s granting of summary judgment dismissing the petition for post-conviction relief on the grounds that the petitioner raised issues that should have been raised on direct appeal, because there was a genuine issue of material fact as to whether the petitioner (who was not appointed appellate counsel), could have afforded to obtain his own attorney.
Further, the Court of Appeals does not consider the state’s argument that a finding by an indigent verification specialist that the petitioner could have obtained counsel should be preclusive, as the state failed to preserve that argument.
Putnam v. Angelozzi, 278 Or. App. 384 (2016)
