Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Court--October 4, 2017
by: Msell@mpdlaw.com • October 6, 2017 • no comments
CIVIL COMMITMENT
- Civil Commitment—Advice of Outcomes—Plain Error
- Civil Commitment—Advice of Rights—Plain Error
EVIDENCE
- Evidence—OEC 403—Sufficiency of record for appellate review
JUVENILE DEPENDENCY/DELIQUENCY
- Juvenile Delinquency—Sentencing—Conditions of Probation
SENTENCING
- Sentencing—Restitution—CARES evaluation
Oregon Appellate Court – Sept 27, 2017
by: Msell@mpdlaw.com • October 2, 2017 • no comments
CRIMES/CONTEMPT
- Violating a Stalking Protective Order—MJOA
- DUII—Attempted DUII instruction
PCR/HABEAS CORPUS
- Post Conviction Relief—Statute of Limitations—Two-year limitation period applies to successive petitions
SEARCH & SEIZURE
- Motion to Suppress—Lost property exception—Officer lacked objectively reasonable belief that cell phone was lost
SENTENCING
- Compensatory Fine—Plain Error
- $2,000 Fine for Third DUII—Plain Error
- Merger—Notice of "sufficient pause
- Merger—Felon in possession of a firearm--Plain Error
Oregon Appellate Court--September 20, 2017
by: Msell@mpdlaw.com • September 26, 2017 • no comments
CRIMES/CONTEMPT
- Failure to Report as a Sex Offender – Classification of offense underlying juvenile adjudication determines whether failure to report is a misdemeanor or felony
EVIDENCE
- Evidence—Affirmative Defense of Extreme Emotional Disturbance
PAROLE/PPS
- Parole & Post-Prison Supervision—Substantial Evidence—Ex Post Facto
SEARCH & SEIZURE
- Search & Seizure—Automobile Exception—Connection with a crime
- Search & Seizure—Reasonable Suspicion—Suspicion of DUII diversion violation not a lawful basis to stop
- Search & Seizure—Search—Warrantless testing that exceeds scope of third-party search unlawful
Oregon Appellate Court--September 13, 2017
by: Msell@mpdlaw.com • September 26, 2017 • no comments
OREGON SUPREME COURT [edit]⇲
SEARCH & SEIZURE
- Motion to Suppress—Stop – Youth was stopped by show of authority
SENTENCING
- Sentencing—Probation/PPS Violation
OREGON COURT OF APPEALS [edit]⇲
CRIMES/CONTEMPT
- Hindering Prosecution—MJOA—Sufficient evidence to prove defendant knowingly “concealed” a person
- Search and Seizure—Probable Cause—Officer had probable cause to believe that defendant had committed crime of hindering of prosecution
EVIDENCE
- Evidence—Vouching
- Sentencing—Statutory maximum sentence
JUVENILE DEPENDENCY/DELINQUENCY
- Juvenile Dependency – Court erred in changing permanency plan based on facts extrinsic to court’s jurisdiction
PAROLE/PPS
- Parole & Post-Prison Supervision—Substantial Evidence and Substantial Reason
PCR/Habeas Corpus
- Post-Conviction Relief—“Suitability” of PCR Counsel—Trial court abused its discretion in denying substitution of counsel based on incorrect understanding of counsel’s duties following a Church motion
- Post-Conviction Relief—Statute of Limitations—Evidence that grounds for PCR could not reasonably be raised in original or amended petitions sufficient to survive summary judgment under escape clause to two-year limitations statute'
Oregon Appellate Ct - Sept 7, 2017
by: Msell@mpdlaw.com • September 21, 2017 • no comments
CRIMES/CONTEMPT
- Restraining Orders – “Interfering” with Petitioner – Insufficient Evidence of Interference
CUSTODIAL INTERROGATION/MIRANDA
- Miranda Right to Counsel – Equivocal Invocation of Right to Counsel
EVIDENCE
- Self-Incrimination – Error to Introduce Defendant’s Invocation at Trial
PCR/HABEAS CORPUS
- Post-Conviction Relief – Ineffective Assistance of Counsel – Guilty Pleas
PER CURIAMS
- Appeal and Review – Harmless Error
- Fines and Fees – "Mandatory State Amt"
SEARCH AND SEIZURE
- Search and Seizure – Search Warrants – Warrant for Electronic Devices was Overbroad
- Search and Seizure – Probable Cause – Traffic Violations – Impeding Traffic
Oregon Appellate Ct - Aug 30, 2017
by: Sara Werboff • September 5, 2017 • no comments
- Evidence – Use of Force Policies Relevant for Impeachment of Officers for Motive/Bias
- Trial Court Procedure – Motion to Suppress Met Requirements of UTCR
- Trial Court Procedure – Motion to Suppress Did Not Meet Requirements of UTCR
- Search and Seizure – Seizure and Search of Defendant Not Justified by Officer Safety Exception
- Search and Seizure – During Inventory, Folded Paper Did Not Announce its Contents
- Sentencing – Trial Court Erred in Calculating Criminal History Score for Predicate Offense – Trial Court Did Not Err in Imposing Consecutive Sentences
- Post-Conviction Relief – Judgment Did Not Conform to Requirements
- Per Curiam – Disorderly Conduct - Evidence Insufficient to Prove Defendant Made “Unreasonable Noise”
- Per Curiam – Petition for Reconsideration Denied
- Per Curiam – Plain Error Attorney Fees
Oregon Appellate Ct - Aug 23, 2017
by: Sara Werboff • August 28, 2017 • no comments
- Search and Seizure – Automobile Exception Applied to Warrantless Search
- Traffic Violation – Defendant’s Conduct of Coordinating Farm Sales Fell Under Exception to Use of Mobile Communications Device
- Restitution – Restitution for Missing Items Not Proper – Remand for Additional Findings for Damage to Police Vehicle
- Fines and Fees – Compensatory Fine Properly Included Losses Incurred Outside Time Period Covered by Guilty Plea – Court Would Not Exercise Discretion to Correct Error as to Amount of Fine
- Search and Seizure – Warrantless Entry Into Home Not Justified by Emergency Aid Exception – Defendant Did Not Consent
- Forged Permanent Resident Card and Social Security Card Were Not “Valuable Instruments”
- Contempt – Sufficient Evidence to Prove Defendant Knowingly Violated Court Order
- Post-Conviction Relief – Remanding for Consideration of Whether Counsel Made a Considered Choice Not to Introduce Bias Evidence and Whether Counsel’s Failure to Contact Petitioner Prejudiced Him – Counsel’s Bar Disciplinary Records Were Admissible
- Post-Conviction Relief – Statutory Interpretation – Unloaded Firearm Does Not Qualify as Deadly Weapon
- Per Curiam – Error to Instruct Jury to Consider 9-1-1 Statements As Substantive Evidence
- Per Curiam – Jury Instructions – Plain Error in Failing to Instruct on Culpable Mental State
- Per Curiam – Any Error in Admitting Evidence was Not Prejudicial
Oregon Appellate Ct - Aug 16, 2017
by: Sara Werboff • August 18, 2017 • no comments
- Restitution – Comparative Fault Rules Do Not Apply in Restitution Proceeding
- Joinder – Any Error in Consolidating of Charging Instruments was Harmless
- Post-Conviction Relief – PCR Court Erred in Allowing Hearsay Evidence – PCR Court Erred in Applying Prejudice Standard
- Search and Seizure – Police Unlawfully Extended Traffic Stop
- Per Curiam – Post-Conviction Relief – PCR Court Erred in Sua Sponte Granting Summary Judgment on Brady Claim
- Per Curiam – Post-Conviction Relief – PCR Court Lacked Jurisdiction to Enter Order
- Per Curiam – Juvenile Dependency – Insufficient Evidence to Support Jurisdiction
Oregon Supreme Ct - Aug 10, 2017
by: Sara Werboff • August 11, 2017 • no comments
- Sentencing - Second Judge was Authorized to Give More Severe Sentence on Remand
- Unauthorized Use of a Vehicle – “Vehicle” for Purposes of UUV Does Not Require Current Operability But Must Establish that It is Reasonable to Restore to Operative Condition
- Search and Seizure – Warrantless Entry in DUII Investigation was Not Justified by Exigent Circumstances
Oregon Appellate Ct - Aug 9, 2017
by: Sara Werboff • August 11, 2017 • no comments
- Per Curiam - On Reconsideration, Amending Judgment to Omit Restitution Award
Oregon Supreme Ct - Aug 3, 2017
by: Sara Werboff • August 4, 2017 • no comments
- State May Present Both Interfering With a Peace Officer and Resisting Arrest Charges to the Jury
- Post-Conviction Relief – Petitioner Entitled to Post-Conviction Relief for Counsel’s Failure to Investigate Overdose Theory of Victim’s Death
Oregon Appellate Ct - Aug 2, 2017
by: Sara Werboff • August 4, 2017 • no comments
- Miranda Waiver – The State Failed to Establish that Defendant Voluntarily, Knowingly, or Intelligently Waived his Miranda Rights
- Charges Were Not Properly Joined – Hearsay Was Inadmissible as a Past Recollection Recorded
- Prosecutorial Misconduct – Reversal Required when Prosecutor’s Statements During Closing were Impermissible
- Defendant’s Arrest for Public Drinking was Lawful because City Ordinance was Not Preempted by State Law
- Post-Conviction Relief – PCR Judgment Does Not Satisfy Requirements
- Merger – Multiple Counts of Identity Theft Involving Different Victims Did Not Merge into Aggravated Identity Theft
- Indictments – Disallowance of Demurrer was Harmless Error
- Merger – Trial Court Erred in Failing to Merge Convictions Involving Single Victim
- Expungement – Trial Court Erred in Failing to Set Aside Defendant’s Arrest Record
- Trial Court Did Not Err In Failing to Give Choice of Evils Defense Instruction
- Per Curiam – Contempt – State Concedes It Misfiled Contempt Proceeding and Trial Court Erred in Imposing Punitive Sanctions
Oregon Appellate Ct - July 26, 2017
by: Sara Werboff • July 31, 2017 • no comments
- Defendant’s Statements were Admissions and Not Confessions
- Civil Commitment – Court Reverses Continued Commitment under Expanded Criteria Defining Mental Illness
- Search and Seizure – Preservation – Defendant’s Argument was Preserved and Evidence Should Have Been Suppressed
- Search and Seizure – Preservation – Defendant Failed to Preserve Argument that Opening Car Door was Unlawful Search
- Identity Theft – Evidence was Sufficient to Show Intent to Defraud
- Search and Seizure – State Did Not Establish that Evidence Would Inevitably Be Discovered
- Search and Seizure – Defendant was Unlawfully Seized and Alternative Bases for Search Were Not Raised Below
- Per Curiam – Search and Seizure – State Concedes Officer Lacked Reasonable Suspicion
- Per Curiam – Burglary – No Burglary Where Defendant Had Permission to Enter
Oregon Appellate Ct - July 19, 2017
by: Sara Werboff • July 23, 2017 • no comments
- Defendant Waived Right to Counsel – Defendant’s Demurrer Should Have Been Allowed
- Indictments – Demurrer Should Have Been Allowed Because No Basis for Joinder Was Alleged
- Sufficient Evidence that Defendant Went to Premises Where Minors Regularly Congregate
- Evidence – In Fraud Case, Evidence that Defendant Made Payments to Victims Was Improperly Excluded
- Search and Seizure – Officer Reasonably Concluded that Entry to Defendant’s Property was Necessary to Render Emergency Aid to Cattle
Oregon Supreme Ct - July 13, 2017
by: Sara Werboff • July 14, 2017 • no comments
- State Not Permitted to Prosecute Defendant for Murder when Defendant Pleaded Guilty to Assault and Plea Agreement was Silent as to Risk of Additional Prosecution
Oregon Appellate Ct - July 12, 2017
by: Sara Werboff • July 14, 2017 • no comments
- DUII – Defendant’s Refusal to Consent to Breath Test Admissible in DUII Prosecution
- Evidence – Trial Court Admitted Text Messages as Adoptive Admissions
- OEC 403 – Granting Reconsideration to Remand to Trial Court to Conduct Balancing
Oregon Appellate Ct - July 6, 2017
by: Sara Werboff • July 9, 2017 • no comments
- Scientific Evidence – Officer’s Conclusion that Defendant Passed or Failed Field Sobriety Test is Scientific Testimony Requiring Adequate Foundation
- Expert Testimony – Trial Court Erroneously Excluded General Testimony on False Memory – Offer of Proof was Sufficient for Review
- Sentencing – Under ORS 137.717, Court Lacked Authority to Impose Multiple Downward Departure Sentences but Court had Discretion to Choose Which Count to Depart
- Search and Seizure – Officer’s Belief that Defendant Possessed Drugs was Not Objectively Reasonable
- Attorney Fees – Defendant’s General Statement that He May Be Able to Work Insufficient to Support Attorney Fee Award
- Search and Seizure – Traffic Stop Was Valid under Vehicle Code
- Juvenile Dependency – Court Violated Interstate Compact by Appointing Guardian in California
- Sentencing – Trial Court Plainly Violated 200 Percent Rule for Consecutive Sentences
- Inmate Litigation – Trial Court Did Not Err in Revoking the Waiver of Plaintiff’s Filing Fees
- Interference with Peace Officer – On Reconsideration Reversing Conviction Because Defendant was Engaged in Passive Resistance
- Self-Representation – Trial Court Erred in Failing to Allow Defendant to Represent Himself
- Per Curiam – Merger – Sex Abuse and Sodomy Verdicts Based on Same Acts but Different Theories Should Merge
- Per Curiam – Merger – Individual Thefts Should Merge into Aggravated Theft
- Per Curiam – Civil Commitment – Appellant’s Shackling Argument is Unpreserved
Oregon Supreme Ct - June 29, 2017
by: Sara Werboff • June 30, 2017 • no comments
- Search and Seizure – Remanding to Determine as Factual Matter Scope of Defendant’s Consent
Oregon Appellate Ct - June 28, 2017
by: Sara Werboff • June 30, 2017 • no comments
- Trial Court Properly Denied Demurrer as Untimely – Trial Court Properly Imposed Compensatory Fine
- Evidence Sufficient to Support Conviction for Initiating False Report
- Juvenile Dependency – Mother’s Admission Was Sufficient to Support Jurisdiction
- Per Curiam - Post-Conviction Relief – Remanding for Reconsideration of Poston Issue
- Per Curiam – Civil Commitment – Insufficient Evidence to Support Commitment
- Per Curiam - Juvenile Dependency – Court Erred in Appointed Guardian Ad Litem for Mother
- Per Curiam - Appeal and Review – Defendant May Not Appeal from Guilty Plea
Oregon Supreme Ct - June 22, 2017
by: Sara Werboff • June 26, 2017 • no comments
- Sentencing - Sentence Was Not Vindictive When Overall Sentence was Shorter
- Sentencing – Trial Court Erred in Failing to Consider Whether Defendant’s Intellectual Disability Rendered Measure 11 Sentence Unconstitutional
- Search and Seizure – Although WA Officer Lacked Authority to Stop Defendant, Evidence Was Constitutionally Obtained
