Articles Posted in Criminal Law

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Petitioner Kipland Kinkel pled guilty to four counts of murder and 25 counts of attempted murder, and pled no contest to a twenty-sixth count of attempted murder. On May 20, 1998, when petitioner was 15 years old, he was sent home from high school for bringing a gun to school. Later that day, he shot his father once in the head. Afterwards, he shot his mother five times in the head and once in the heart. He went to school the following day and shot and killed two students and wounded dozens more. In this post-conviction proceeding, petitioner argued that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibited the imposition of an aggregate sentence that was the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues: (1) whether, as a matter of state law, petitioner’s Eighth Amendment claim was procedurally barred; (2) if it was, whether Montgomery v. Louisiana, 136 S Ct 718 (2016), required the Oregon Supreme Court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar; and (3) if petitioner’s Eighth Amendment claim was not procedurally barred, whether and how Miller v. Alabama, 567 US 460 (2012), applied when a court imposed an aggregate sentence for multiple crimes committed by a juvenile. The Oregon Supreme Court held that, even if ORS 138.550(2) did not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim failed on the merits. The Oregon Court concluded that the facts in this case, coupled with the sentencing court’s findings, brought petitioner within the narrow class of juveniles who, as Miller recognized, could be sentenced to life without the possibility of parole. View "Kinkel v. Persson" on Justia Law

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In April 2017, defendant Zachary Ball was charged by indictment with six Class C felonies. Appellant, who was a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. In December 2017, the trial court facilitated settlement negotiations between the prosecutor and defendant, who was represented by counsel. Although appellant did not participate in those negotiations, she sat in the hallway outside the room where the negotiations occurred, and the prosecutor consulted with her before ultimately agreeing with defendant to terms of a plea and sentencing. The sentencing hearing took place in January 2018; appellant attended. Appellant was given approximately twenty minutes to deliver her statement; thereafter, defendant was sentenced to 28 months’ imprisonment and 32 months’ post-prison supervision for attempted assault in the second degree, 18 months’ imprisonment and 24 months post-prison supervision for assault in the fourth degree, to be served concurrently, and 60 months’ probation for coercion. Upon receipt of appellant’s claim, the trial court held a hearing. The trial court acknowledged that it had interrupted appellant’s victim impact statement twice and stopped appellant before she had the opportunity to complete her statement. As to both of the interruptions and the termination of appellant’s statement, the trial court stated that its objective had been “to focus on the statements that [appellant] wanted to say and how she felt about it, and about the crimes that * ** defendant was convicted of.” The Oregon Supreme Court held a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative. In addition, a trial court may limit a victim impact statement if the victim disregards the trial court’s appropriate instructions regarding the content or length of the statement. In this case, the trial court’s interruptions of appellant’s statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant’s right to be heard. However, the trial court’s termination of appellant’s statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant’s right to be heard. Therefore, the Court reversed the trial court’s decision denying appellant’s claim, vacated defendant’s sentence, and remanded the case to the trial court for a new sentencing hearing. View "Oregon v. Ball" on Justia Law

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Defendant Gregory Stewart knocked on a woman’s door early one morning. The woman thought she recognized defendant and let him inside her apartment. Shortly thereafter, the woman realized she had mistaken defendant for someone else, but she did not ask him to leave. Instead, the two sat in the living room and smoked marijuana. Defendant made the woman uncomfortable and later followed her to her bedroom, prompting the woman to ask defendant to leave. The woman refused defendant’s request to stay, he asked for sandwich bags. Defendant commented that he “needed to make some money,” removed a bag from his pocket, and went into the bathroom, where he spilled a substance on the floor. When defendant finished in the bathroom, he used the woman’s phone to call for a ride. Defendant said she could have whatever remained of the substance on her floor and left. The woman then called 9-1-1, reporting that defendant spilled a “white, powdery substance” on her bathroom floor, asked if she or anyone that she knew wanted to “buy some” of the substance, and stated several times that he “needed to make some money.” Police located defendant near the apartment, discovering small bags containing methamphetamine on defendant and arrested him. Police also determined that the substance on the bathroom floor was methamphetamine and, after transporting defendant, found a glove containing methamphetamine in their patrol car. Defendant was charged with various crimes, including unlawful delivery of methamphetamine. In this case, the Oregon Supreme Court concluded that to prove that a delivery “is for consideration” under ORS 475.900 (2)(a) and that an enhanced sentence is therefore merited, the state is required to offer evidence that a defendant either entered into an agreement to sell or completed a sale of the specified drugs. The Court held that evidence a defendant possessed the drugs with the intent to sell them is insufficient. The Court reversed the decision of the Court of Appeals, and remanded this case for resentencing. View "Oregon v. Stewart" on Justia Law

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Defendant Gregory Stewart knocked on a woman’s door early one morning. The woman thought she recognized defendant and let him inside her apartment. Shortly thereafter, the woman realized she had mistaken defendant for someone else, but she did not ask him to leave. Instead, the two sat in the living room and smoked marijuana. Defendant made the woman uncomfortable and later followed her to her bedroom, prompting the woman to ask defendant to leave. The woman refused defendant’s request to stay, he asked for sandwich bags. Defendant commented that he “needed to make some money,” removed a bag from his pocket, and went into the bathroom, where he spilled a substance on the floor. When defendant finished in the bathroom, he used the woman’s phone to call for a ride. Defendant said she could have whatever remained of the substance on her floor and left. The woman then called 9-1-1, reporting that defendant spilled a “white, powdery substance” on her bathroom floor, asked if she or anyone that she knew wanted to “buy some” of the substance, and stated several times that he “needed to make some money.” Police located defendant near the apartment, discovering small bags containing methamphetamine on defendant and arrested him. Police also determined that the substance on the bathroom floor was methamphetamine and, after transporting defendant, found a glove containing methamphetamine in their patrol car. Defendant was charged with various crimes, including unlawful delivery of methamphetamine. In this case, the Oregon Supreme Court concluded that to prove that a delivery “is for consideration” under ORS 475.900 (2)(a) and that an enhanced sentence is therefore merited, the state is required to offer evidence that a defendant either entered into an agreement to sell or completed a sale of the specified drugs. The Court held that evidence a defendant possessed the drugs with the intent to sell them is insufficient. The Court reversed the decision of the Court of Appeals, and remanded this case for resentencing. View "Oregon v. Stewart" on Justia Law

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Defendant Israel Tena, Jr. was convicted of felony fourth-degree assault constituting domestic violence. On appeal, he challenged the admission of evidence that he had previously assaulted two other intimate partners within the last 14 years. The state argued that the evidence was admissible to prove intent, and the Court of Appeals agreed. The Oregon Supreme Court concluded the evidence of the two prior incidents of domestic violence were impermissible character evidence. Therefore, the Court reversed the decision of the Court of Appeals. View "Oregon v. Tena" on Justia Law

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Following a bench trial, petitioner Justin Behrle was convicted of three crimes and sentenced accordingly. After entry of judgment and an unsuccessful appeal to the Court of Appeals, petitioner filed a petition for post-conviction relief, alleging one claim of ineffective assistance of counsel, and, in that claim, specified five instances in which his trial counsel allegedly failed to exercise reasonable professional skill and judgment. Petitioner sought an order reversing his convictions and sentences. After a hearing, the post-conviction court found that, although three of petitioner’s specifications were without merit, two were well-taken. As a result, the court stated, it would “overturn the convictions in order [that] they be remanded back to the trial court.” The court then entered a judgment allowing the petition, effectively setting aside petitioner’s convictions and remanding the case to the trial court for a new trial. Defendant (the superintendent) appealed the post-conviction judgment, and petitioner filed a notice of cross-appeal, raising issues on which he had not prevailed in the post-conviction proceedings. The Court of Appeals determined that petitioner’s notice was untimely and dismissed his cross-appeal for lack of jurisdiction. The Oregon Supreme Court allowed review in this case to determine whether the Court of Appeals correctly dismissed petitioner’s cross- appeal as untimely. After it did so, petitioner filed his brief with the Court of Appeals and included cross-assignments of error seeking the same relief that he sought in his cross-appeal. The Supreme Court concluded petitioner’s cross-assignments of error were permitted by ORAP 5.57(2) and that resolving the merits of the issue at issue would no longer have a practical effect on the rights of the parties. The Court therefore dismissed the petition for review as moot. View "Behrle v. Taylor" on Justia Law

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Two sets of petitioners challenged the Oregon Attorney General’s certified ballot title for Initiative Petition 28 (IP 28). IP 28, if adopted, would add an exception to the constitutional protections recognized in Vannatta v. Keisling, 931 P2d 770 (1997). Petitioners challenged the caption, the “yes” and “no” result statements, and the summary. Finding revisions warranted for all elements to the ballot title, the Oregon Supreme Court referred the matter back to the Attorney General for modification. View "Markley/Lutz v. Rosenblum" on Justia Law

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Two sets of petitioners challenged the Oregon Attorney General’s certified ballot title for Initiative Petition 28 (IP 28). IP 28, if adopted, would add an exception to the constitutional protections recognized in Vannatta v. Keisling, 931 P2d 770 (1997). Petitioners challenged the caption, the “yes” and “no” result statements, and the summary. Finding revisions warranted for all elements to the ballot title, the Oregon Supreme Court referred the matter back to the Attorney General for modification. View "Markley/Lutz v. Rosenblum" on Justia Law

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A jury found defendant Jose Roberto Fierro Villagomez guilty of unlawful possession and unlawful delivery of methamphetamine. The presumptive sentence for those crimes was probation. However, under ORS 475.900(1)(b), when the state establishes that those crimes constituted commercial drug offenses, the presumptive sentence was imprisonment. To prove a commercial drug offense, the state had to establish any three out of eleven statutorily enumerated factors, one of which is that the “delivery” of the drug was “for consideration.” This case presented the question of whether that factor could be proved by evidence that the defendant possessed the drugs with an intent to sell them, or, instead, required the state to prove a completed sale of drugs or an existing agreement to sell them. The Oregon Supreme Court concluded that the legislature intended the latter, and affirmed the decision of the Court of Appeals. View "Oregon v. Villagomez" on Justia Law

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This case presented a narrow question regarding the meaning of ORS 162.375(1), which defined the crime of “initiating a false report.” Defendant Robert Branch was convicted of that crime based on evidence that, in response to questions from sheriff’s deputies about a report that defendant left the scene of a traffic collision without exchanging the required driver information, defendant falsely claimed that he left the scene because the other driver had pointed a gun at him. Defendant argued on appeal of his conviction to the Oregon Supreme Court that a person does not “initiat[e] a false report” within the meaning of ORS 162.375(1), if the person lies in response to police questioning “about a report someone else initiated” and, thus, that the evidence was insufficient to permit his conviction under that statute. Although the Supreme Court agreed the legislature did not intend the statute to apply when a person merely responds to police questioning with false information regarding the circumstances of the same crime or emergency situation about which the person is being questioned, defendant’s proposed rule swept too broadly. The Supreme Court concluded the legislature intended the phrase “initiates a false alarm or report” to reach, at a minimum, the conduct of a person who, during questioning about one crime or emergency situation, falsely alleges new circumstances to which the law enforcement agency is reasonably likely to respond as a separate crime on an emergency basis. View "Oregon v. Branch" on Justia Law