Oregon Appellate Ct - July 6, 2017
by: Sara Werboff • July 9, 2017 • no comments
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| + | *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 | ||
</summary> | </summary> | ||
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| − | Sentencing – Trial Court Plainly Violated 200 Percent Rule for Consecutive Sentences | + | '''Sentencing – Trial Court Plainly Violated 200 Percent Rule for Consecutive Sentences''' |
The court remands for resentencing when the trial court imposed a total incarceration term for consecutive sentences that exceeded 200 percent of the maximum presumptive term for the primary offense. Defendant pleaded guilty to seven drug offenses. The trial court sentenced defendant to 65 months on Count 1, 36 months on Count 4 (to be served consecutively to Count 1) and 36 months on Count 5 (to be served consecutively to Count 4), for a total of 137 months in prison. Defendant’s primary offense was Count 1, and defendant was a 10H, which carries a presumptive sentence of 61-65 months. Therefore, the total consecutive incarceration terms for crimes arising out of the same criminal episode as Count 1 could not exceed 130 months. | The court remands for resentencing when the trial court imposed a total incarceration term for consecutive sentences that exceeded 200 percent of the maximum presumptive term for the primary offense. Defendant pleaded guilty to seven drug offenses. The trial court sentenced defendant to 65 months on Count 1, 36 months on Count 4 (to be served consecutively to Count 1) and 36 months on Count 5 (to be served consecutively to Count 4), for a total of 137 months in prison. Defendant’s primary offense was Count 1, and defendant was a 10H, which carries a presumptive sentence of 61-65 months. Therefore, the total consecutive incarceration terms for crimes arising out of the same criminal episode as Count 1 could not exceed 130 months. | ||
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| − | Inmate Litigation – Trial Court Did Not Err in Revoking the Waiver of Plaintiff’s Filing Fees | + | '''Inmate Litigation – Trial Court Did Not Err in Revoking the Waiver of Plaintiff’s Filing Fees''' |
Plaintiff, an inmate, challenges the dismissal of his case after he failed to pay a filing fee. The trial court initially had waived the fee, but then vacated the order after determining that plaintiff had previously commenced more than three prior actions that had been dismissed as frivolous, or failed to state a claim. The defendants, state actors, conceded that vacating the order waiving the filing fee was error because there were appeals pending on those cases but the court does not accept the concession. The court explains that under federal law the dismissal counts even if the dismissal is being appealed, and the parties did not present sufficient argument to explain why the law in Oregon, which is based on the federal counterpart, would be different. | Plaintiff, an inmate, challenges the dismissal of his case after he failed to pay a filing fee. The trial court initially had waived the fee, but then vacated the order after determining that plaintiff had previously commenced more than three prior actions that had been dismissed as frivolous, or failed to state a claim. The defendants, state actors, conceded that vacating the order waiving the filing fee was error because there were appeals pending on those cases but the court does not accept the concession. The court explains that under federal law the dismissal counts even if the dismissal is being appealed, and the parties did not present sufficient argument to explain why the law in Oregon, which is based on the federal counterpart, would be different. | ||
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| − | Interference with Peace Officer – On Reconsideration Reversing Conviction Because Defendant was Engaged in Passive Resistance | + | '''Interference with Peace Officer – On Reconsideration Reversing Conviction Because Defendant was Engaged in Passive Resistance''' |
The state and defendant jointly moved for reconsideration in this case in light of ''State v. McNally'', 361 Or 314 (2017), contending that defendant’s conviction for interference with a peace officer (IPO) should be reversed. The court agrees and reverses defendant’s conviction. An officer stopped defendant for traffic violations and ordered her to provide her identification. Defendant, calmly and politely, refused, asked the officer for his name and badge number, told him that she was recording the encounter, and asked him questions that she had written on a piece of paper. Defendant was charged with IPO for failing to obey a lawful order, and at trial, moved for a judgment of acquittal arguing that she was engaged in passive resistance. | The state and defendant jointly moved for reconsideration in this case in light of ''State v. McNally'', 361 Or 314 (2017), contending that defendant’s conviction for interference with a peace officer (IPO) should be reversed. The court agrees and reverses defendant’s conviction. An officer stopped defendant for traffic violations and ordered her to provide her identification. Defendant, calmly and politely, refused, asked the officer for his name and badge number, told him that she was recording the encounter, and asked him questions that she had written on a piece of paper. Defendant was charged with IPO for failing to obey a lawful order, and at trial, moved for a judgment of acquittal arguing that she was engaged in passive resistance. | ||
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| − | Self-Representation – Trial Court Erred in Failing to Allow Defendant to Represent Himself | + | '''Self-Representation – Trial Court Erred in Failing to Allow Defendant to Represent Himself''' |
The court concludes that the trial court erroneously failed to allow defendant to represent himself when defendant repeatedly requested to do so pretrial. The state argued that defendant’s claim is unpreserved because the trial court never expressly ruled on defendant’s request. The court rejects that argument. Defendant’s requests to waive counsel and represent himself were unambiguous, and the trial court failed to engage in the required inquiry. By disregarding defendant’s requests, the trial court necessarily precluded defendant from representing himself at trial. | The court concludes that the trial court erroneously failed to allow defendant to represent himself when defendant repeatedly requested to do so pretrial. The state argued that defendant’s claim is unpreserved because the trial court never expressly ruled on defendant’s request. The court rejects that argument. Defendant’s requests to waive counsel and represent himself were unambiguous, and the trial court failed to engage in the required inquiry. By disregarding defendant’s requests, the trial court necessarily precluded defendant from representing himself at trial. | ||
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| − | Per Curiam – Merger – Sex Abuse and Sodomy Verdicts Based on Same Acts but Different Theories Should Merge | + | '''Per Curiam – Merger – Sex Abuse and Sodomy Verdicts Based on Same Acts but Different Theories Should Merge''' |
The court accepts the state’s concession that defendant’s guilty verdicts for two counts of first-degree sodomy and two counts of first-degree sexual abuse should merge into a single conviction of first-degree sodomy and a single-conviction of first-degree sexual abuse. The counts were based on the same acts but different theories (forcible compulsion and physical helplessness). The court concludes that the trial court plainly erred and exercises its discretion to correct the error because defendant’s criminal record misstates the nature and extent of his conduct. | The court accepts the state’s concession that defendant’s guilty verdicts for two counts of first-degree sodomy and two counts of first-degree sexual abuse should merge into a single conviction of first-degree sodomy and a single-conviction of first-degree sexual abuse. The counts were based on the same acts but different theories (forcible compulsion and physical helplessness). The court concludes that the trial court plainly erred and exercises its discretion to correct the error because defendant’s criminal record misstates the nature and extent of his conduct. | ||
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| − | Per Curiam – Merger – Individual Thefts Should Merge into Aggravated Theft | + | '''Per Curiam – Merger – Individual Thefts Should Merge into Aggravated Theft''' |
The court accepts the state’s concession that defendant’s guilty verdicts for individual thefts should merge into the guilty verdict for aggravated theft. The trial court could not impose separate convictions for individual thefts that had been aggregated to support an additional, greater, theft conviction. Similarly, defendant’s guilty verdicts for first-degree theft of individual firearms should have merged into the guilty verdict for first-degree theft of property when that property included the listed firearms. | The court accepts the state’s concession that defendant’s guilty verdicts for individual thefts should merge into the guilty verdict for aggravated theft. The trial court could not impose separate convictions for individual thefts that had been aggregated to support an additional, greater, theft conviction. Similarly, defendant’s guilty verdicts for first-degree theft of individual firearms should have merged into the guilty verdict for first-degree theft of property when that property included the listed firearms. | ||
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| − | Per Curiam – Civil Commitment – Appellant’s Shackling Argument is Unpreserved | + | '''Per Curiam – Civil Commitment – Appellant’s Shackling Argument is Unpreserved''' |
The court affirms appellant’s civil commitment, concluding that appellant’s argument that she was improperly shackled at her civil commitment trial was not adequately preserved. A general objection to shackling is insufficient to preserve arguments that the trial court improperly deferred to another person’s assessment of the need for restraints, and failed to make a record of its reasons for requiring restraints. | The court affirms appellant’s civil commitment, concluding that appellant’s argument that she was improperly shackled at her civil commitment trial was not adequately preserved. A general objection to shackling is insufficient to preserve arguments that the trial court improperly deferred to another person’s assessment of the need for restraints, and failed to make a record of its reasons for requiring restraints. | ||
[http://www.publications.ojd.state.or.us/docs/A162076.pdf State v. K.C.], 286 Or App 682 (2017) (per curiam) | [http://www.publications.ojd.state.or.us/docs/A162076.pdf State v. K.C.], 286 Or App 682 (2017) (per curiam) | ||
Revision as of 10:12, July 10, 2017
State v. Beltran-Chavez, 286 Or App 590 (2017) (Duncan, P.J.) (Hadlock, C.J., dissenting)
State v. Davis, 286 Or App 528 (2017) (Ortega, P.J.)
State v. Mendoza, 286 Or App 548 (2017) (Ortega, P.J.)
State v. Jones, 286 Or App 562 (2017) (Lagesen, J.)
State v. Watkins-McKenzie, 286 Or App 569 (2017) (Lagesen, J.)
DHS v. A.B., 286 Or App 578 (2017) (Garrett, J.)
State v. Dye, 286 Or App 626 (2017) (Duncan, J.)
Sentencing – Trial Court Plainly Violated 200 Percent Rule for Consecutive Sentences
The court remands for resentencing when the trial court imposed a total incarceration term for consecutive sentences that exceeded 200 percent of the maximum presumptive term for the primary offense. Defendant pleaded guilty to seven drug offenses. The trial court sentenced defendant to 65 months on Count 1, 36 months on Count 4 (to be served consecutively to Count 1) and 36 months on Count 5 (to be served consecutively to Count 4), for a total of 137 months in prison. Defendant’s primary offense was Count 1, and defendant was a 10H, which carries a presumptive sentence of 61-65 months. Therefore, the total consecutive incarceration terms for crimes arising out of the same criminal episode as Count 1 could not exceed 130 months.
State v. Carrillo, 286 Or App 642 (2017) (Duncan, J.)
Inmate Litigation – Trial Court Did Not Err in Revoking the Waiver of Plaintiff’s Filing Fees
Plaintiff, an inmate, challenges the dismissal of his case after he failed to pay a filing fee. The trial court initially had waived the fee, but then vacated the order after determining that plaintiff had previously commenced more than three prior actions that had been dismissed as frivolous, or failed to state a claim. The defendants, state actors, conceded that vacating the order waiving the filing fee was error because there were appeals pending on those cases but the court does not accept the concession. The court explains that under federal law the dismissal counts even if the dismissal is being appealed, and the parties did not present sufficient argument to explain why the law in Oregon, which is based on the federal counterpart, would be different.
Woodroffe v. State of Oregon, 286 Or App 645 (2017) (Duncan, J.)
Interference with Peace Officer – On Reconsideration Reversing Conviction Because Defendant was Engaged in Passive Resistance
The state and defendant jointly moved for reconsideration in this case in light of State v. McNally, 361 Or 314 (2017), contending that defendant’s conviction for interference with a peace officer (IPO) should be reversed. The court agrees and reverses defendant’s conviction. An officer stopped defendant for traffic violations and ordered her to provide her identification. Defendant, calmly and politely, refused, asked the officer for his name and badge number, told him that she was recording the encounter, and asked him questions that she had written on a piece of paper. Defendant was charged with IPO for failing to obey a lawful order, and at trial, moved for a judgment of acquittal arguing that she was engaged in passive resistance.
In McNally, decided after the court’s initial decision in this case, the Oregon Supreme Court explained that passive resistance refers to noncooperation with a lawful order that does not involve violence or active measures, regardless of the motivation for the noncooperation. The parties agree that defendant’s conduct constituted passive resistance.
State v. Washington, 286 Or App 650 (2017) (Duncan, J.)
Self-Representation – Trial Court Erred in Failing to Allow Defendant to Represent Himself
The court concludes that the trial court erroneously failed to allow defendant to represent himself when defendant repeatedly requested to do so pretrial. The state argued that defendant’s claim is unpreserved because the trial court never expressly ruled on defendant’s request. The court rejects that argument. Defendant’s requests to waive counsel and represent himself were unambiguous, and the trial court failed to engage in the required inquiry. By disregarding defendant’s requests, the trial court necessarily precluded defendant from representing himself at trial.
State v. Ortega, 286 Or App 673 (2017) (Haselton, S.J.)
Per Curiam – Merger – Sex Abuse and Sodomy Verdicts Based on Same Acts but Different Theories Should Merge
The court accepts the state’s concession that defendant’s guilty verdicts for two counts of first-degree sodomy and two counts of first-degree sexual abuse should merge into a single conviction of first-degree sodomy and a single-conviction of first-degree sexual abuse. The counts were based on the same acts but different theories (forcible compulsion and physical helplessness). The court concludes that the trial court plainly erred and exercises its discretion to correct the error because defendant’s criminal record misstates the nature and extent of his conduct.
State v. Bonilla-Vergara, 286 Or App 676 (2017) (per curiam)
Per Curiam – Merger – Individual Thefts Should Merge into Aggravated Theft
The court accepts the state’s concession that defendant’s guilty verdicts for individual thefts should merge into the guilty verdict for aggravated theft. The trial court could not impose separate convictions for individual thefts that had been aggregated to support an additional, greater, theft conviction. Similarly, defendant’s guilty verdicts for first-degree theft of individual firearms should have merged into the guilty verdict for first-degree theft of property when that property included the listed firearms.
State v. Chappell, 286 Or App 679 (2017) (per curiam)
Per Curiam – Civil Commitment – Appellant’s Shackling Argument is Unpreserved
The court affirms appellant’s civil commitment, concluding that appellant’s argument that she was improperly shackled at her civil commitment trial was not adequately preserved. A general objection to shackling is insufficient to preserve arguments that the trial court improperly deferred to another person’s assessment of the need for restraints, and failed to make a record of its reasons for requiring restraints.
State v. K.C., 286 Or App 682 (2017) (per curiam)
