Oregon Appellate Ct - March 1, 2017
by: Sara Werboff • March 4, 2017 • no comments
Jackson v. Franke, 284 Or App 1 (2017) (Hadlock, C.J.)
State v. J.T.C., 284 Or App 38 (2017) (Hadlock, C.J.) (Egan, J., dissenting)
Tiner v. Premo, 284 Or App 59 (2017) (Armstrong, P.J.)
State v. Watts, 284 Or App 146 (2017) (Tookey, J.)
State v. Valdez, 284 Or App 153 (2017) (Tookey, J.)
State v. Berger, 284 Or App 156 (2017) (Tookey, J.)
DHS v. A.F., 284 Or App 162 (2017) (Flynn, J.)
Post-Conviction Relief - PCR Court Erred in Granting Summary Judgment for State
The court reverses the post-conviction court's grant of summary judgment on two alternative grounds, concluding that the first basis was incorrect as a matter of law and that petitioner presented sufficient evidence to create a material issue of fact on the second basis. Petitioner was originally tried in 2004 for committing several offenses jointly with five co-defendants. The trial court, without objection, gave the "natural and probable consequences" accomplice liability jury instruction that was later disapproved in Lopez-Minjarez. Lopez-Minjarez was decided about two years after petitioner initiated this PCR action. Petitioner then filed an amended petition, contending that trial counsel was ineffective for failing to object to the jury instruction.
The state moved for summary judgment and the post-conviction court granted that motion. On appeal, the court concludes that the post-conviction erred when it concluded that petitioner was required to proffer evidence that all reasonable defense attorneys were objecting to the jury instruction in 2004. That is because petitioner presented evidence that the state of the law in 2004 indicated that an objection to the jury instruction would have had merit and that trial counsel's failure to do so was unreasonable. The court further concludes that the post-conviction court erred in concluding that petitioner presented insufficient evidence of prejudice to create an issue of fact.
Lizarraga-Regalado v. Premo, 284 Or App 176 (2017) (Haselton, S.J.)
Per Curiam - Sex Abuse Guilty Verdicts Merged
The court accepts the state's concession that the trial court erred when it failed to merge defendant's two guilty verdicts for first-degree sex abuse.
State v. Vandeberg, 284 Or App 190 (2017) (per curiam)
Per Curiam - Insufficient Evidence of Witness Tampering
The court accepts the state's concession that there was insufficient evidence to convict defendant of witness tampering.
State v. Horn, 284 Or App 192 (2017) (per curiam)
Per Curiam - Sex Abuse Guilty Verdicts Merged
The court concludes that defendant's guilty verdicts for three counts of first-degree sex abuse should merge because they were part of the same conduct or criminal episode and they were not separated by a sufficient pause.
State v. Williams, 284 Or App 194 (2017) (per curiam)
