Oregon Appellate Ct - Nov 9, 2016

Revision as of 15:43, November 12, 2016

Burglary - Identity Theft - Defendant Entitled to MJOA for Failure to Prove Trespass for Burglary and State Failed to Prove Venue for ID Theft

State v. Berndt, 281 Or App 73 (2016) (Armstrong, P.J)

Jury Instructions - Instruction on Forcible Compulsion was Plain Error but Did Not Warrant Reversal

State v. Waldbillig, 281 Or App 84 (2016) (Ortega, P.J.)

Vindictive Sentencing - Sentence Vindictive When Trial Court Imposed Harsher Sentence for Exercising Right to Trial

State v. Robledo, 281 Or App 96 (2016) (Egan, J.)

Appeal and Review - Court Had Jurisdiction Over Appeal But Claim Was Unreviewable

State v. Silsby, 281 Or App 104 (2016) (Lagesen, P.J.)

Post-Conviction Relief - Counsel Not Ineffective for Failing to Let Petitioner Plea to Misdemeanor

Eby v. Premo, 281 Or App 114 (2016) (Lagesen, P.J.)

Pro Se Defendant Did Not Validly Waive by Misconduct his Right to Representation

State v. Lacey, 281 Or App 123 (2016) (Lagesen, J.) (Garrett, J., dissenting)

Vindictive Sentencing - Double Jeopardy - Vouching Issues - Remanding for Resentencing but Otherwise Affirming Convictions

State v. Criswell, 281 Or App 146 (2016) (Garrett, J.)

Vouching - Miranda - Detective's Statements to Defendant During Interrogation Were Not Vouching and No Miranda Violation for Statements Made to DHS

[http://www.publications.ojd.state.or.us/docs/A153009.pdf State v. Codon, 281 Or App 165 (2016) (Garrett, J.)

Civil Commitment - Appellant Was Not a Danger to Others and Could Provide Basic Needs

The court reverses a civil commitment order, concluding that the evidence was insufficient to establish that appellant was a danger to others and was unable to meet his own basic health and safety needs. Before his commitment, appellant, a 45-year-old man, was in jail for an unspecified period of time and then in the hospital. While in jail, appellant refused to eat or drink and behaved as if he was psychotic. He was transferred to the hospital where he would verbally lash out at other patients and staff, and would swing his arms through the air, but would not actually hit anyone. Staff would intervene and often placed him in segregation. At his civil commitment hearing, defendant testified, along with two doctors. Defendant made comments that he could walk easily from Alaska to Oregon. Defendant suffered from several health problems and would often stop taking his psychiatric medication.

The court concludes that there is insufficient evidence that appellant is a danger to others based on the fact that staff often intervened when appellant was agitated. There was no other evidence that appellant had ever harmed anyone and had not actually attempted to hit anyone at the hospital. The court further concludes that there is insufficient evidence that appellant cannot meet his basic needs. Although his statements about his ability to walk very far distances were unreasonable, they do not demonstrate that he lacks the capacity to survive. Additionally, the evidence showed that appellant resumed eating and drinking when he was at the hospital.

State v. S.P. 281 Or App 177 (2016) (Garrett, J.)

Per Curiam - Reversing Attorney Fee Award

The court concludes that the trial court plainly erred by awarding attorney fees. The court exercises its discretion to correct the error because the amount of the award, over $1,000, was substantial in light of defendant's circumstances.

State v. Hagstrom, 281 Or App 188 (2016) (per curiam)

Per Curiam - Evidence Legally Insufficient for Civil Commitment

The state concedes that the evidence is legally insufficient to support the involuntary commitment.

State v. R.R.P., 281 Or App 190 (2016) (per curiam)

Per Curiam - Under Previous Version of Civil Commitment Statute Evidence is Legally Insufficient

In three cases presenting nearly identical legal issues, the court reverses civil commitment orders obtained under an earlier version of the statute, even though the civil commitment proceedings occurred after the statute was amended. Because neither party presented any argument for application of the current statute, the court applies the earlier version. The court concludes in each case that the state failed to prove that civil commitment was warranted.

State v. S.L., 281 Or App 192 (2016) (per curiam)

State v. J.L., 281 Or App 195 (2016) (per curiam)

State v. C.F.-S., 281 Or App 198 (2016) (per curiam)

Per Curiam - Juvenile Dependency - Record Below Insufficient to Support Jurisdiction

The court accepts the state's concession that the record below was insufficient to establish that there was a current risk of harm to the children. DHS asserted two bases for jurisdiction, one of which was dismissed by the juvenile court. The other, that parents used to manufacture marijuana, DHS concedes did not create a current risk of harm.

DHS v. P.R.H., 281 Or App 201 (2016) (per curiam)

Per Curiam - Termination of Parental Rights - Mother's Inadequate Assistance of Counsel Claim Fails

The court rejects mother's claim that her attorney provided inadequate assistance at mother's termination of parental rights trial by failing to mount a defense. Mother failed to appear at the trial. Because mother was absent, her attorney was precluded by ORS 419B.815(8) from participating in the trial on her behalf.

DHS v. K.L.H. 281 Or App 203 (2016) (per curiam)

Per Curiam - Post-Conviction Relief - PCR Court Did Not Make Sufficient Findings In the Judgment

The court reverses and remands a PCR judgment so that the PCR court can make findings as required by ORS 138.640(1) with respect to one of petitioner's claims. The PCR court is required to supply the basis for denying a PCR claim in the judgment.

Walls v. Nooth, 281 Or App 205 (2016) (per curiam)