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Oregon Supreme Court - January 31, 2019

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by: Rankin Johnson • February 2, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

CONSTITUTIONAL LAW — Statutes reducing sentencing laws adopted by referendum

Statute reducing repeat-property-offender sentences did not violate constitutional prohibition on legislative reductions to sentences "approved by the people." Remanded for resentencing.

Under Art IV, sec 33 of the Oregon Constitution, the legislature can only reduce criminal sentencing provisions that have been "approved by the people" by two-thirds majority. Repeat-property-offender sentences were adopted by initiative in 2008. Thereafter the legislature reduced those sentences for a two-year period, after which they returned to the higher level. The legislature reduced the sentences by a simple majority in 2017.

The Supreme Court held that the 2017 reduction was from an increase by the legislature, not from the earlier increase by the voters. Accordingly, the reduction could be passed through ordinary legislation.

State v. Vallin 364 Or 295 (January 31, 2019) (Walters) (Lincoln County, Banford)

POST-CONVICTION RELIEF — Ineffective assistance of counsel

Trial counsel's error in failing to object, when the objection was unfounded based on the law at the time, was nonetheless prejudicial because of the chance of Supreme Court review. Remanded to the Court of Appeals for further proceedings.

Petitioner was convicted of sex offenses, based in part on evidence of a diagnosis of child sexual abuse, before Oregon courts had held that such evidence was generally inadmissible but after a split Court of Appeals decision suggested that the issue was in doubt.

Before petitioner's post-conviction trial, the Oregon Supreme Court decided that evidence of a diagnosis of child sexual abuse was inadmissible. In the post-conviction court, petitioner argued that counsel was ineffective in failing to preserve that ruling for appeal. The post-conviction court held that failure to anticipate the change in the law was not ineffective, and also that petitioner could not prove prejudice because the Supreme Court would probably not have taken review.

The Court of Appeals affirmed, holding only that petitioner could not prove prejudice.

The Supreme Court reversed. It reasoned that under the legal circumstances at the time, Supreme Court review was "more than a mere possibility." Therefore petitioner had been prejudiced.

Jackson v. Franke 364 Or 312 (January 31, 2019) (Balmer) (Umatilla County, McCormick)