Oregon Appellate Court September 19, 2012

by: Stephanie Clark • September 19, 2012 • no comments

PCR > Ineffective Counsel > Failure to Request Lesser Included Offense Instruction in Bench Trial

Failure to request a jury instruction for conviction on a lesser degree of assault than second-degree was constitutionally inadequate assistance. Defendant was prejudiced regardless of the fact that it was a bench trial. Bostwick v. Coursey, __ Or App __ (2012).

Dependency > Required Findings > Change of Permanency Plan

When a trial court changes a permanency plan from reunification to adoption, it must make the factual findings required under ORS 419B.476(5)(a). Here, the trial court attempted to adopt DHS's factual findings, but did not explicitly state or attach the findings to which it referred. Dept. of Human Services v. H.P., __ Or App __ (2012).

Per Curiams

• Restitution - The court remands a restitution order because the lower court impermissibly awarded damages partially based on "conduct for which defendant had not been convicted and did not admit having committed." Here, the trial court awarded damages in a telephonic harassment case for such things as medical expenses, a new phone, and gas expenditures.State v. Barker, __ Or App __ (2012).
• Sentencing - The trial court erred when it orally imposed the presumptive probationary term of 18 months and later imposed an enhanced 24-month sentence in the written judgment without making any supportive factual findings. State v. Dimmick, __ Or App __ (2012). Per Curiam.

Note: The State v. Christian opinion was accidentally posted to the Oregon Appellate Court page, but was originally issued March 21, 2012.