Oregon Appellate Ct - Feb 23, 2017
by: Sara Werboff • February 27, 2017 • no comments
Post-Conviction Relief -
The court reverses the post-conviction court's judgment granting post-conviction relief to petitioner on several of his claims. In particular, the court concluded that the PCR court erroneously concluded that 1) trial counsel was ineffective for failing to present a defense expert's bullet comparison opinion during trial, 2) trial counsel and appellate counsel were ineffective for failing to argue that certain evidence was not hearsay, 3) trial counsel was ineffective for failing to move for a continuance of a hearing on a new trial motion and failed to make certain objections to evidence at that hearing. Petitioner was convicted of killing the victim with a single gunshot wound. At trial, the principle defense strategy was to argue another man, Baines, who resembled petitioner, was the likely murderer. In an unrelated search of Baines' home, police found a Rohm revolver. The state argued that the Rohm was inoperable at the time of the murder.
Farmer v. Premo, 283 Or App 731 (2017) (en banc) (Hadlock, C.J.) (Ortega, P.J., dissenting)
Trial Court Did Not Err in Finding Defendant in Summary Contempt
The court upholds defendant's summary punitive contempt for repeatedly interrupting the trial court while appearing in a marital dissolution hearing by telephone. The court rejects defendant's argument that, because his appearance was telephonic, the contempt was not committed in the presence of the court. The court holds that notwithstanding defendant's telephonic appearance, the contempt occurred while court was in session and the trial court could perceive the effects of defendant's behavior. The court also rejected defendant's argument that his conduct was not willful because the trial court could not establish that defendant heard the court's order to stop interrupting. The court concludes that the record supports the trial court's conclusion that defendant did hear its orders. For similar reasons, the court also rejects defendant's argument that the poor speakerphone technology was a mitigating circumstance.
State v. Blackburn, 283 Or App 843 (2017) (Lagesen, J.)
Sentencing - Declining to Overrule Precedent Requiring Full Remand for Merger Error
The court rejects the state's argument that the court should overrule State v. Skaggs, 275 Or App 557 (2015), which held that ORS 138.222(5)(b) requires reversal of the judgment of conviction triggering a full remand for resentencing on affirmed counts. Here, the state acknowledged that defendant's two guilty verdicts for animal neglect involving the same alpaca should have merged, and further acknowledged that under Skaggs, reversal of the judgment of conviction was required. However, the state contended that Skaggs was wrongly decided because ORS 138.222(5)(b) was never intended to apply to merger errors, instead ORS 138.222(5)(a) - which does not compel an automatic resentencing - applies. The court concludes that the state's statutory analysis does not persuade it that its original conclusion in Skaggs was erroneous.
State v. Silver, 283 Or App 847 (2017) (Garrett, J.)
Per Curiam - Reversing Attorney Fees
The court concludes that the trial court erred in imposing attorney fees after explicitly finding on the record that defendant did not have the ability to pay.
State v. Clark, 283 Or App 893 (2017) (per curiam)
Per Curiam - Trial Court Did Not Plainly Err in Imposing Attorney Fees
The court concludes that the trial court did not plainly err in imposing $416 in attorney fees because there was evidence in the record that defendant was receiving disability payments.
State v. Poston, 283 Or App 895 (2017) (per curiam)
Per Curiam - Defendant's Father Lacked Actual Authority to Consent to Search of Defendant's Room
The court accepts the state's concession that evidence derived from a search of defendant's room should have been suppressed. Defendant rented a room from his father. Defendant's father consented to a search of defendant's room but defendant indicated he did not give his consent. Under those circumstances, the search was unlawful.
State v. Fraser, 283 Or App 897 (2017) (per curiam)
Per Curiam - Insufficient Evidence to Support Civil Commitment
The court accepts the state's concession that there was legally insufficient evidence to support the trial court's conclusion that appellant was a danger to himself or others.
State v. D.J., 283 Or App 899 (2017) (per curiam)
Per Curiam - Reversing Attorney Fees
The court accepts the state's concession that the trial court plainly erred in imposing $3,095 in attorney fees when the record was silent as to defendant's ability to pay the fees.
State v. Cason, 283 Or App 901 (2017) (per curiam)
Per Curiam - Defendant's Two Unlawful Delivery Guilty Verdicts Should Merge
The court concludes that the trial court plainly erred when it failed to merge the guilty verdicts for unlawful delivery of cocaine within 1,000 feet of a school and unlawful delivery of cocaine.
State v. Abraham, 283 Or App 903 (2017) (per curiam)
Per Curiam - Reversing Attorney Fees
The court reverses the attorney fee award because the trial court did not announce it was imposing attorney fees at sentencing and defendant had no practical opportunity to object.
State v. Terhune, 283 Or App 905 (2017) (per curiam)
Per Curiam - Juvenile Dependency Appeal Dismissed as Moot
The court dismisses this juvenile dependency appeal as moot because the juvenile court dismissed jurisdiction over mother's child.
DHS v. A.B., 283 Or App 907 (2017) (per curiam)
Per Curiam - Rejecting Challenge to Auto Exception Search
In light of State v. Bliss, decided today, the court rejects an identical argument made by defendant that police could not rely on automobile exception after stopping defendant for a traffic violation.
State v. Kline, 283 Or App 909 (2017) (per curiam)
Per Curiam - Court Grants Reconsider to Correct Citation Error
The court grants reconsideration to correct an error in its original opinion. The court mistakenly stated that ORS 419B.815(8) precluded mother from arguing that her counsel was ineffective in a termination proceeding because she failed to appear at that hearing, when really the identically-worded ORS 419B.819(8) applies in termination proceedings.
DHS v. M.L.B., 283 Or App 911 (2017) (per curiam)
