Oregon Appellate Ct - Dec 29, 2016

Revision as of 18:13, January 3, 2017

State v. Greene, 283 Or App 120 (2016) (Armstrong, P.J.)

State v. Alcantar, 283 Or App 114 (2016) (Hadlock, C.J.)

State v. Alegre, 283 Or App 127 (2016) (Ortega, P.J.)

State v. Landon, 283 Or App 131 (2016) (Ortega, P.J.)

DHS v. S.S., 283 Or App 136 (2016) (Ortega, P.J.)

State v. Herfurth, 283 Or App 149 (2016) (Duncan, P.J.)

State v. Wright, 283 Or App 160 (2016) (Duncan, P.J.)

Post-Conviction Relief - Petitioner was Prejudiced by Trial Counsel's Failure to Provide Timely Notice of Alibi

The court reverses the PCR court's judgment denying the petition on the grounds that petitioner failed to establish prejudice after proving that trial counsel was ineffective for failing to provide notice of an alibi witness. Petitioner was convicted of several child pornography offenses. The court agrees with the PCR court that trial counsel failed to exercise reasonable skill, as the trial court ruled that petitioner was precluded by trial counsel's failure to provide timely alibi notice from presenting evidence from two witnesses who would have testified that petitioner was not home when the pornography was downloaded. But the court disagrees with the PCR court's conclusion that there was "sufficient other evidence" of petitioner's guilt that trial counsel's failure did not prejudice petitioner.

The court explains that trial counsel's failure did prejudice petitioner because the "analytical question" is not whether the state presented sufficient evidence that petitioner did download the pornography but whether the exculpatory evidence that petitioner was unable to produce "could have affected the jury's perception of the evidence in the case." The alibi evidence "directly undercuts the inference that the state sought to have the jury make," that petitioner alone downloaded the images, and it strengthened the inference that the defense wanted the jury to make, that someone else downloaded the images. Because the missing alibi evidence could have tended to affect the jury's consideration of the case, petitioner proved prejudice.

Denton v. Nooth, 283 Or App 179 (2016) (Duncan, P.J.)

Sentencing - Merger Required Because Acts Not Separated by "Sufficient Pause"

The court remands for resentencing after concluding that the trial court record does not contain evidence that would allow a nonspeculative inference that each of defendant's crimes was separated by a sufficient pause to allow the trial court to enter multiple convictions. Defendant touched the victim on her breasts and her vagina while they were alone in defendant's bedroom and was charged with two counts of sex abuse. The court agrees with defendant that there was insufficient evidence of a "sufficient pause" because the acts occurred during a single encounter and there was no evidence of the duration of time that elapsed between the two touching incidents.

State v. Avila, 283 Or App 262 (2016) (Garrett, J.)

Per Curiam - Civil Commitment - Dismissal Required When Hearing was Untimely

The court concludes that the trial court was required to dismiss the civil commitment proceedings against appellant because the hearing was not held within five judicial days after he was taken in for involuntary treatment.

State v. E.R., 283 Or App 282 (2016) (per curiam)

Per Curiam - Affirming Probation Revocation Sentence Imposed Pursuant to Stipulation in Plea Agreement

The court concludes that the sentence imposed on revocation of probation pursuant to a stipulation that defendant made in his plea agreement was unreviewable under ORS 138.222(2)(d).

State v. Keeler, 283 Or App 284 (2016) (per curiam)