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OCDLA Email Summary
August 11, 2005 – August 24, 2005
This Issue:
Supreme Court Cases………….. NA
9th Circuit Cases……………….... 2
Oregon Supreme Court Cases....... 9
Oregon Court of Appeals……...... 10
Discussion:
Article of the Week…………....... 12
From the Pond ……...………….... 13
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US SUPREME COURT
Note: The United States Supreme Court has ended its 2004 session. It will begin the 2005 session in October.
9TH CIRCUIT
U.S. v. Von Brown
No. 04-30219 (08/08/05)
Before Circuit Judges Schroeder, Chief Judge, Graber, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/598C5A5FAD041ACB88257057005106F9/$file/0430219.pdf?op
enelement
CRIMINAL PROCEDURE / CAREER OFFENDER / SENTENCE ENHANCEMENT
Opinion (Per Curiam): Jasy Von Brown plead guilty to burglary and under United States Sentencing Guidelines
(U.S.S.G.) § 4B1.1, was sentenced as a career offender. Brown’s burglary conviction was a crime of violence, and
Brown had two previous felony convictions for crimes of violence. Brown’s offense level was raised to 29 and his
criminal history category was set at VI, resulting in a sentence of 148 months. Brown appealed his sentence as a
career offender on two grounds. First, Brown argued that his prior convictions must be proved to a jury beyond a
reasonable doubt. Second, Brown argued that a jury had to decide whether his prior convictions ought to be
classified as crimes of violence. The Ninth Circuit dismissed Brown’s arguments holding that no Sixth Amendment
violations occurred. The Ninth Circuit ordered both parties to notify the court if they wanted to pursue an Ameline
remand. BRIEFING ORDERED. [Summarized by Jaymon Thomas]
U.S v. Dowd
No. 04-30062 (08/08/05)
Before Circuit Judges Schroeder, Chief Judge, Graber, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5FD12963BB51D15A882570570050F32E/$file/0430062.pdf?op
enelement
CRIMINAL PROCEDURE / FEDERAL INTERSTATE DOMESTIC VIOLENCE LAW / SENTENCE
ENHANCEMENT
Opinion (Fisher): Matthew Dowd met Danna Johnson in 1999 and eventually they became romantically involved
and moved in together. Shortly after moving in together, Dowd left Johnson and was indicted for possession and
distribution of methamphetamine, possession of a firearm in relation to a drug-trafficking crime, and being a drug
user in possession of a firearm. Dowd petitioned the court to attend a drug rehabilitation facility. He was discharged
in 2002 and was supposed to surrender to a detention center, but fled instead. In the meantime, Johnson was living
in Colorado. She contacted Dowd’s mother to see how he was doing. Dowd’s mother said that he was on probation
and living in California and was clean and sober. Johnson contacted Dowd and Dowd then headed to Colorado to
see Johnson. They moved in together, but within a week, Johnson realized Dowd was still using drugs. This caused
Dowd to become violent. He beat and raped Johnson and then forced her to get in the car with him. Johnson then
found out that he was an escaped felon. They drove from Colorado to Montana and Utah. During the whole trip,
Dowd beat Johnson, threatened her with a gun, sexually abused her, and verbally intimidated her. Johnson was
eventually able to escape after Dowd threw her down an embankment and left her for dead. Dowd was convicted
under the federal interstate domestic violence statute. 18 U.S.C. sec. 2261(a)(2). The district court sentenced Dowd
to 127 months for violating the statute and failing to appear for his prior offense. The court decided for the sentence
to run consecutive to the 144 month sentence that had not been served for Dowd’s previous drug-related crimes.
Dowd argued that the government did not prove that Johnson had not traveled with him across state lines voluntarily
and cited the numerous opportunities she had to escape. The Ninth Circuit held that there was sufficient evidence
that Johnson was forced across state lines because his acts of violence could lead a reasonable juror to conclude that
Dowd caused Johnson to drive across state lines by force. The Ninth Circuit also held that the coercion required by
that statute does not mean that the defendant had to maintain constant physical control over his victim. The Ninth
Circuit also held that the district court properly considered guidelines in deciding to impose a consecutive sentence
rather than a concurrent sentence. AFFIRMED. [Summarized by Mary Tollefson]
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U.S. v. Stafford
No. 04-30134 (08/03/05)
Before Circuit Judges Canby, Tallman, and Rawlinson
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/7AE920E0C35063598825705200470858/$file/0430134.pdf?ope
nelement
CRIMINAL PROCEDURE / FOURTH AMENDMENT / EXCEPTIONS TO WARRANT REQUIREMENT
Opinion (Tallman): On January 22, 2003 in Snohomish County, Washington officers responded to a report of a
possible dead body inside in an apartment. Witnesses described the apartment as “blood-spattered,” “foulsmelling,” and “in a state of disarray.” In the course of looking for a possibly injured or deceased person, the
officers saw two assault rifles, a suspected grenade launcher, ammunition, and photographs of a man apparently
injecting drugs intravenously while sitting in the bathroom of what appeared to be the same apartment. As a result
of this entry, observation, and subsequent seizure of weapons, Stafford was charged with and convicted of two
counts of unlawful possession of a firearm. The district court denied his motion to suppress the evidence obtained
during the warrantless search. On appeal, the Ninth Circuit held that the warrantless entry into the apartment was
reasonably justified by the emergency doctrine, and that the rifles and ammunition seized were properly admitted
into evidence under the plain view exception to the Fourth Amendment’s warrant requirement. The Ninth Circuit
explained that the warrantless search in this case was justified under the emergency doctrine because all three
elements of the doctrine were satisfied: 1) the officers had reasonable grounds to believe that there was an
emergency and that there was an immediate need for their assistance in order to protect life or property; 2) the
search was not primarily motivated by the intent arrest and seize evidence; and 3) there was a reasonable basis to
associate the emergency with the place to be searched. The Ninth Circuit further explained that the plain view
exception applied because the officers lawfully entered the unit (under the emergency doctrine) and the
incriminatory nature of the evidence was immediately apparent to the officers. CONVICTION AFFIRMED AND
SENTENCE REMANDED. Partial dissent by Judge Canby. [Summarized by Allison Abbott]
U.S. v. Thomas
No. 03-56750 (08/03/05)
Before Circuit Judges B. Fletcher, Rymer, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CB3A4B60E074EF79882570520046F312/$file/0356750.pdf?ope
nelement
CRIMINAL PROCEDURE / INEFFECTIVE COUNSEL
Opinion (Rymer): Thomas was accused of robbing a bank and a UPS office in February of 1996. An FBI Agent
happened to be near the UPS office at the time it was robbed and followed a blue Suzuki Samurai back to Thomas’
acquaintance’s house after a high speed chase. Thomas and two others were driven out of the house awhile later,
and investigators found a pistol and $800 in the same house. Thomas’ counsel, without Thomas’ consent,
strategically decided to not contest Thomas’ participation in the UPS robbery in order to focus on other charges with
harsher penalties. Thomas appealed, arguing that he had ineffective counsel. The Ninth Circuit held that Thomas
had effective counsel because Thomas failed to show that his representation fell below an objective standard of
reasonableness and the deficiencies in his counsel were prejudicial. Since Thomas’ participation in the UPS robbery
was nearly incontestable and Thomas faced several charges, Thomas’ counsel did not prejudice Thomas in the
decision. AFFIRMED. Concurrence by Judge B. Fletcher and Fisher. [Summarized by Nicholas Kuwada]
U.S. v. Ware
No. 03-15609 (08/05/05)
Before Circuit Judges Callahan, Paez, and Thomas
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6F7DF75686F7BB0888257054004A6F0D/$file/0315609.pdf?op
enelement
CRIMINAL PROCEDURE / QUESTION OF FACT / SUFFICIENT EVIDENCE
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Opinion (Callahan): Jon Ware was convicted on two counts of bank robbery under 28 U.S.C. sec. 2255. That
statute required a bank to be insured by the Federal Deposit Insurance Corporation (FDIC) at the time of the
robberies. Ware sought habeas relief, contending that the prosecution provided insufficient evidence at trial that the
banks robbed were FDIC insured at the time of the robberies, because the testimony given at trial related instead to
the insurance status at the time of the trial. The Ninth Circuit found that because the trial was relatively close in
time to the commission of the crimes, combined with some circumstantial evidence presented at trial, there was
sufficient evidence to support the finding that the banks were FDIC insured at the time Ware robbed them.
AFFIRMED. [Summarized by Charles Sherer]
U.S. v. Dupas
No. 04-50055 (08/03/05)
Before Circuit Judges Graber, Callahan, and Gibson, Senior Circuit Judge for the Eighth Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A704C4C0D9FE66558825705200471D82/$file/0450055.pdf?op
enelement
CRIMINAL PROCEDURE / SENTENCE ENANCEMENT / BOOKER AND AMELINE
Opinion (Graber): Matthew Dupas appealed his sentence after the court convicted him of possession of stolen mail.
Dupas had entered a plea agreement where the amount of loss would not exceed $5,000, but the district court
refused to accept this amount and calculated the amount at $49,306.95 that resulted in a sentencing range of 24 to 30
months. Dupas argued that the Fifth Amendment Due Process clause prevented resentencing under “Booker” and
“Ameline” and the district court erred with the conditions put on his supervised release. He wanted a remedy that
would end court’s power to make findings of fact in situations involving the judge’s discretion to sentence outside
the guideline range, instead of the advisory guidelines set in “Booker” and reaffirmed in “Ameline”. The Ninth
Circuit held that both Booker holdings apply retroactively, “Bouie” did not apply to retroactive sentence
enhancements, and that the holding in “Bouie” would not allow Dupas protection from every change in sentencing
law. The Ninth Circuit reasoned that Dupas had fair notice that his sentence could change on judicial
determination, as long as it was within the guidelines. The Ninth Circuit also held that in order to correct an error it
must be plain and affect substantial rights, which was not the issue in this case, since it was not plain or obvious.
CONDITIONS OF SUPERVISED RELEASE AFFIRMED; SENTENCE OF IMPRISONMENT REMANDED.
[Summarized by Megan Balogh]
U.S. v. Fidler
No. 05-50444 (08/16/05)
Before Circuit Judges Tallman, Bybee, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/74FF355EC6939A258825705F0056EFAE/$file/0550444.pdf?op
enelement
CRIMINAL LAW / BAIL BOND / FINANCIAL CONDITIONS / FLIGHT RISK
Opinion (Per Curiam): The FTC brought a civil enforcement action against Fidler, alleging that he engaged in a
fraudulent business scam. The district court in the civil case entered an order freezing Fidler’s assets and ordered
him not to remove or transfer money from any account. Fidler violated that order. At the indictment for criminal
contempt, the magistrate ordered Fidler be released subject to several conditions, including home detention and a
$100,000 unsecured appearance bond. The government appealed to the district court, contending that Fidler should
be detained because of the flight risk and the danger he posed to the community. The district judge denied the
government’s request, but found that Fidler’s past contempt conviction, the nature of the offense, and hostile
statements Fidler had made warranted increasing the financial condition to a $300,000 property-secured bond.
Fidler appealed the district court’s decision. The Ninth Circuit held that statute 18 U.S.C. sec. 3142(c) is not
violated if the record shows that detention is not based solely on the defendant’s inability to meet the financial
condition, but rather on the district court’s determination that the amount of the bond is necessary to reasonably
assure the defendant’s attendance at trial, and if there is clear and convincing evidence that the defendant is a danger
to community. Based on the evidence presented, the district court judge was justified. AFFIRMED. [Summarized
by Peter Johnson]
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U.S. v. Williams
No. 04-10213 (08/16/05)
Before Circuit Judges Tallman, Bybee, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E7455B5F0319F37D8825705F00569732/$file/0410213.pdf?ope
nelement
CRIMINAL LAW / FOURTH AMENDMENT / TRAFFIC STOPS / POLICE DISCRETION
Opinion (Tallman): Williams, a passenger in a vehicle that was stopped for a traffic infraction, exited the vehicle
after the car was stopped. The police officer ordered Williams to get back in the car. As Williams re-entered the car
he threw a gun out of the passenger window. Williams was charged with being a felon in possession of a firearm.
The district court denied Williams’s motion to suppress the evidence of the gun, in which he had argued that his
compliance with the officer’s command was an unreasonable seizure under the Fourth Amendment. The Ninth
Circuit held that it was reasonable for the officer to order Williams back in the car because the intrusion was
minimal. The Ninth Circuit followed other circuits that held that officers may detain passengers during a traffic
stop, whether by ordering passengers to remain inside or return to the vehicle. Strong public interest in officer
safety and car occupant safety outweighed the marginal intrusion on a passenger’s personal liberty interest.
AFFIRMED. [Summarized by Peter Johnson]
U.S. v. Hall
No. 04-50193 (08/15/05)
Before Circuit Judges Tashima, Wardlaw and Collins, District Judge
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/40035D33D5CC7A068825705E0053133F/$file/0450193.pdf?op
enelement
CRIMINAL LAW / RIGHT TO CONFRONT / PAROLE REVOCATION
Opinion (Wardlaw): William Lewis Hall (“Hall”) was on supervised release when his probation officer, Janet
Bergland (“Bergland”) received a voicemail message from Susan Hawkins (“Hawkins”) reporting that Hall was
drunk and had beaten her up the night before. The district court issued a no-bail bench warrant for Hall based on a
petition by Bergland alleging four violations of Hall’s supervised release, including domestic violence and false
imprisonment. The evidence for those two charges was based on statements made by Hawkins to third parties.
Hawkins, a homeless woman, could not be located to testify at the hearing. Before the evidentiary hearing, the
district court denied Hall’s motion to exclude “the hearsay statements of Susan Hawkins.” Hall requested
reconsideration of his motion following a Supreme Court decision governing the Sixth Amendment right to confront
testimonial witnesses. The Ninth Circuit affirmed the district court decision that the Sixth Amendment right was not
implicated by supervised release revocation proceedings. The Court found Hall did have a due process right to
confront witnesses against him. The Court found that since the non-hearsay evidence introduced at the evidentiary
hearing alone was sufficient to sustain the domestic violence allegation, the hearsay evidence could not have
significantly affected the court’s ultimate finding. Regarding the false imprisonment violation, the court found that
although Hall had a strong interest in confronting Hawkins, the interest was outweighed by the government’s good
cause for not producing Hawkins as a witness and the reliability of Hawkins’ statements to an officer. AFFIRMED.
[Summarized by Naomi Levelle]
U.S. v. Trevino
No. 02-10545 (08/16/05)
Before Circuit Judges Tashima, Clifton, and Leighton, District Judge for the Western District of Washington
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/0ECE2A14C52810438825705F0055E797/$file/0210545.pdf?ope
nelement
CRIMINAL LAW / TAX EVASION / JURY INSTRUCTIONS AND PROSECUTORIAL MISCONDUCT
Opinion (Leighton): Aurora Trevino was convicted for conspiracy to defraud the United States and attempting to
evade or defeat a tax. Trevino owned and operated two flower shops in California, since 1985. In 1989, she hired an
accountant, Salvador Archuleta, to reduce her tax liability. In 1993, the IRS began investigating Archuleta, who
eventually entered a guilty plea with a reduced sentence, in exchange for an agreement to cooperate in various cases,
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including Trevino’s. At trial, Archuleta testified that by increasing the cost of goods, he was able to reduce
Trevino’s tax liability by an average of $100,000 from 1989 to 1992. Trevino appealed her convictions, arguing that
(1) the district court erred in failing to instruct that a good faith believe that the tax returns were correct was a
complete defense, (2) the prosecutor engaged in misconduct, (3) Jury Instruction 44 impermissibly created a
presumption of her knowledge of the contents of the erroneous tax returns. The Ninth Circuit concluded that (1) the
instruction used adequately covered Trevino’s defense theory, that she was ignorant as to the contents of the tax
return, (2) the prosecutor’s statement that defense counsel was “wrong” that Archuleta did not increase the cost of
goods by $150,000 did not affect the jury’s ability to judge the evidence fairly, (3) Jury Instruction 44 was given in
error, but did not relieve the government of any material burden, and thus was harmless. Finally, the Ninth Circuit
remanded to determine under “Ameline” whether the same sentence would have been imposed if the district court
had known that the sentencing guidelines were advisory. CONVICTION AFFIRMED; SENTENCE REMANDED.
Partial Concurrence and Partial Dissent by Judge Tashima. [Summarized by Amber Ames]
U.S. v. Cirino
No. 03-10711 (08/15/05)
Before Circuit Judges B. Fletcher, Thomas, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/0D2518F711A48CFA8825705E0052A2C1/$file/0310711.pdf?op
enelement
CRIMINAL PROCEDURE / CAREER OFFENDER / PUERTO RICAN CONVICTIONS
Opinion (Per Curiam): Hector Cirino robbed a bank in Las Vegas and was convicted of armed bank robbery,
possession of a firearm during and in relation to a crime of violence, and aiding and abetting. The district court
sentenced Cirino as a “career offender” under the Sentencing Guidelines, based on two previous convictions from
the Commonwealth of Puerto Rico. Cirino appealed the applicability of the Puerto Rican convictions. The Ninth
Circuit looked to the First Circuit which had taken into account Puerto Rican convictions. The Ninth Circuit found
that the First Circuit had treated Puerto Rico as a “state” in many contexts, including Federal Death Penalty Act,
sovereign immunity, double jeopardy, and Sherman Act. Additionally, the Ninth Circuit found that the United
States Constitution had been incorporated nearly verbatim into the Puerto Rican Constitution, guaranteeing
constitutional protections to a defendant. The Ninth Circuit concluded there were no legal or policy reasons for
treating Puerto Rican convictions differently from any other state conviction. Finally, the Ninth Circuit remanded
under “Ameline”, as it could not tell whether the district court would have awarded the same sentence if it had
known that the guidelines were advisory. AFFIRMED IN PART AND REMANDED. [Summarized by Amber
Ames]
U.S. v. Saechao
No. 04-30156 (08/12/05)
Before Circuit Judges Reinhardt, Berzon, and Bybee.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/12F152ADA398A7A88825705B0055FC93/$file/0430156.pdf?o
penelement
CRIMINAL PROCEDURE / FIFTH AMENDMENT / PENALTY SITUATION / INADMISSIBLE
STATEMENTS
Opinion (Reinhardt): Saechao was on state probation for a felony, and one of the requirements of his probation was
that he promptly and truthfully answer all of the in questions from the Department of Correction. Moreover, another
requirement was that he was prohibited from possessing a firearm. At his first meeting with his probation officer,
Saechao was asked repeatedly if he had a firearm, and he eventually admitted that he had a hunting rifle which he
owned before the probation began. The probation officer then removed the rifle, and later decided to initiate a
federal prosecution against him for possession of a firearm. The district courts granted a motion to suppress the
statements that Saechao made in revealing he had a firearm to his probation officer. The U.S. appealed. The Ninth
Circuit found that if a “penalty situation” exists where an individual’s refusal to answer an incriminating question
subjects him to penalty, then the Fifth Amendment applies and the statements are inadmissable. The elements for a
“penalty situation” exist if an individual must be compelled to answer the questions, and if the state expressly or
impliedly asserts that a penalty will occur if there is failure to do so. The Ninth Circuit found both in Saechao’s
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case. The probation terms expressly or impliedly stated that if he didn’t answer the questions asked of him that his
probation would be revoked, but by answering the question asked Saecho could have his probation revoked.
Therefore, a “penalty situation” was created, and Saecho’s statements were inadmissable. AFFIRMED.
[Summarized by Nicholas Wood]
Jefferson v. Budge
No. 03-16932 (08/16/05)
Before Circuit Judges Thomas, Silverman, and Clifton
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/4A8D977BEFF2EE628825705F005637A2/$file/0316932.pdf?op
enelement
CRIMINAL PROCEDURE / HABEAS CORPUS / AEDPA
Opinion (Silverman): In 1992, a Nevada jury convicted Jefferson on three counts of robbery with the use of a
deadly weapon and one count each of burglary, battery with the use of a deadly weapon, and attempted sexual
assault with the use of a deadly weapon. Jefferson’s first full round of state collateral proceedings became final on
July 1, 1999. Jefferson filed a timely federal habeas petition on February 10, 2000. This petition was dismissed. In
2002, Jefferson filed the instant federal habeas petition. The district court dismissed as untimely Jefferson’s habeas
petition under the statute of limitations established by the Antiterroism and Effective Death Penalty Act “AEDPA”).
On appeal, the Ninth Circuit held that Jefferson was entitled to equitable tolling of the one-year AEDPA statute of
limitations from the date the first habeas petition was dismissed until the date he filed his second habeas petition.
Further, the Ninth Circuit held that it was error for a district court to dismiss a mixed habeas petition (one that
involves both exhausted and unexhausted claims) without first offering the petitioner the options provided in Rose v.
Lundy. REVERSED; AND REMANDED. [Summarized by Allison Abbott]
U.S. v. Beck
No. 03-30470 (08/10/05)
Before Circuit Judges Wallace, Gould, and Berzon
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/10A7A5FD0EA56F0188257059004D190A/$file/0330470.pdf?o
penelement
CRIMINAL PROCEDURE / IMPROPER SUGGESTION / U.S. SENTENCING GUIDELINES
Opinion (Gould): Michael Beck was found guilty of one count of bank robbery, in violation of 18 U.S.C. § 2113(a),
and sentenced to 102 months in prison and three years of supervised release. Beck appealed the district court’s
rulings on three grounds. First, Beck contended that the procedure employed by FBI Special Agent Steven Whipple
(Whipple) was improperly suggestive. Whipple showed the three eyewitnesses to the bank robbery a photograph of
the robber taken from the bank surveillance camera. Whipple then asked the eyewitnesses to identify the robber in a
six-person photospread. Second, Beck argued that the lay opinion testimony offered by his federal probation officer,
Edward Glover, should not have been allowed because it was prejudicial. Third, Beck contended that the rebuttal
testimony of Whipple concerning the procedures that were used to make the photospread that was shown the three
eyewitnesses should not have been admitted because it was inappropriately suggestive. The Ninth Circuit affirmed
the conviction stating: 1) The use of photographs of the crime itself to revitalize the memory of eyewitnesses was
not improperly suggestive; 2) Edward Glover’s testimony was permissible because it was rationally based and useful
to the jury; and 3) The rebuttal testimony of Whipple was permissive, and was in fact invited by the issues raised by
Beck’s defense. The Ninth Circuit remanded the sentence because the district court sentenced Beck under the
assumption that the United States Sentencing Guidelines were mandatory and not advisory. AFFIRMED; AND
REMANDED. [Summarized by Jaymon Thomas]
U.S. v. Gonzalez-Flores
No. 03-10656 (08/12/05)
Before Circuit Judges B. Fletcher, Hawkins, and Lay, Eighth Circuit Judge.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/051E314B9D55ABA98825705B004EF896/$file/0310656.pdf?op
enelement
CRIMINAL PROCEDURE / PREJUDICIAL EVIDENCE / HARMLESS ERRORS
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Opinion (B. Fletcher): Jose Luis Gonzalez-Flores appealed his sentence for smuggling a group of about two dozen
aliens across the border on the grounds that evidence of two girls getting heat stroke during his attempt was admitted
and was prejudicial. At the trial, the court allowed testimony about the girls heatstroke to be presented as probative
evidence. The Ninth Circuit found that Evidence rule 403 was in effect in this case, and it prohibits evidence that
has probative value to be admitted if its value is outweighed by the danger of prejudice. The Ninth Circuit then
found that since the evidence of heat stroke was not an element of the crime that Gonzalez-Flores was charged with,
it was not probative and was a mere detail in the story, but that they were not bound to overturn the verdict if the
error was harmless. An error is considered harmless and does not overturn a verdict if it is certain that it was
harmless, and if a reversal will result in protracted, costly, and futile proceedings in the future. The Ninth Circuit
then found that the heat stroke story would not have affected any of the elements a jury would need to find the
defendant guilty, and that finding the error to not be harmful would lead to undue resource waste because the verdict
would not change in the end. Moreover, the Ninth Circuit also found that the sentencing violated Gonzalez-Flores
Sixth Amendment rights, and that the lower court would have to review for plain error to see if Gonzalez-Flores’
sentence was correct. AFFIRMED IN PART; AND REMANDED. [Summarized by Nicholas Wood]
U.S. v. Dorsey
No. 04-30152
Before Circuit Judges Canby, Tallman, and Rawlinson
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8D0520A4AF500A8188257059004D73F8/$file/0430152.pdf?op
enelement
CRIMINAL PROCEDURE / SEARCH AND SEIZURE / HEARSAY
Opinion (Tallman): Nikos Delano Dorsey pled guilty to possession of cocaine with intent to distribute, possession of
a firearm during and in relation to a drug trafficking offense, and possession of a firearm in a school zone. Dorsey
appealed, challenging his arrest, the search of his car, and the admission of an officer’s statements at his pretrial
motion-to-suppress hearing. Dorsey further challenged the constitutionality of his possession of a firearm in a
school zone charge under the Commerce Clause and his sentence under Blakely v. Washington. The Ninth Circuit
first held Dorsey’s arrest was valid because the arresting officers had sufficient probably cause. The court next held
that the search of Dorsey’s car was a lawful search incident resulting from the valid arrest. The court then held that
an officer’s statements during Dorsey’s suppression hearing were not hearsay, therefore admissible. The court
further held that Dorsey’s possession charge was a constitutional exercise of the Commerce Clause. However, the
court found the record insufficient to determine whether Dorsey’s sentence violated Blakely, and remanded for resentencing. AFFIRMED; AND REMANDED. Partial Concurrence and Partial Dissent by Judge Rawlinson.
[Summarized by Andrew Naylor]
USA v. Mayfield
02-50381 (08/10/05)
Before Circuit Court Judges Thompson, Silverman and Wardlaw
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3F5E54F78443BD5288257059004CE74B/$file/0250381o.pdf?o
penelement
CRIMINAL PROCEDURE / SENTENCING GUIDELINES
Opinion (Thompson): In a second trial, Jerry Wayne Mayfield was convicted for possession of cocaine with intent
to distribute. At sentencing Mayfield argued that because the government did not refile information alleging a prior
felony drug conviction at his prior trial that the 20-year mandatory minimum term of imprisonment did not apply.
The District Court held that Mayfield had adequate notice and rejected his argument. Mayfield appealed. The Ninth
Circuit held that the government complied with 21 U.S.C. 851 (a) when it initially filed information alleging a prior
felony drug conviction, therefore satisfying Mayfield’s due process rights and negating the necessity of filing the
information again at the second trial. The Ninth Circuit held that the district court erred when it imposed a sentence
on Mayfield based on the assumption that the sentencing guidelines were mandatory and not advisory. The Ninth
Circuit remanded the case to determine whether Mayfield’s sentence would have been materially different had the
court known of this distinction. AFFIRMED IN PART; AND REMANDED. [Summarized by Bryan Fitzpatrick]
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OREGON SUPREME COURT
State v. Harris
Case No.: S51600 http://www.publications.ojd.state.or.us/S51600.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Carson, C. J.) Use of prior juvenile adjudication as a sentencing factor does not violate the
Sixth Amendment’s right to a jury trial. However, when a juvenile adjudication is used as a factor to increase the
sentence, the existence of the adjudication must be proved to a trier of fact or admitted by the defendant following
an informed and knowing waiver.
Zachary Harris (Harris) was indicted on 17 criminal counts. Harris agreed to a plea bargain were he agreed to plead
guilty to 6 counts. The plea petition also required Harris to list past criminal convictions, which included a firstdegree rape which was adjudicated when he was a 12-year-old juvenile. During sentencing, the trial court relied
upon Harris’ prior juvenile adjudication to increase his criminal history score, which in turn increased his sentence.
Harris argues that any use of prior juvenile adjudication to lengthen a criminal sentence violates the Sixth
Amendment since juvenile adjudications are conducted without jury trial protections. The Court of Appeals
affirmed Harris’ sentence without written opinion. The Oregon Supreme Court found that the Sixth Amendment
allows the legislature to designate prior non-jury juvenile adjudications as an element that increases the seriousness
of a crime or lengthen the sentence. However, the existence of the prior juvenile adjudication must be either proved
to a jury, or knowingly waived by the defendant. The decision of the Court of Appeals is reversed, conviction
affirmed, and sentence vacated. [Summarized by Justin Nelson.]
Rico-Villalobos v. Guisto
Case No.: S52042 http://www.publications.ojd.state.or.us/S52042.htm
AREA OF LAW: HABEAS CORPUS
HOLDING: (Opinion by Balmer, J.) In a murder or treason case, if a trial court can make a determination that either
the proof of guilt is evident, or the presumption of guilt is strong, the court may deny bail and pre-trial release.
Further, neither the Oregon Evidence Code or the Oregon Constitution have limited the introduction of hearsay
evidence at pre-trial release hearings.
Rico-Villalobos, indicted for murder and other crimes, challenged the denial of his motion for pre-trial release by
filing a writ of habeas corpus. Rico-Villalobos argued that the court erred when it allowed the state to introduce
hearsay evidence through the testimony of a police detective at his pretrial release hearing. The threshold issue
considered by the Supreme Court was whether a habeas corpus petition is the appropriate avenue for a defendant to
challenge the denial of a motion to set bail and the resulting continued incarceration. The Court stated that it is
appropriate in accordance with ORS 34.310 and Article VII, section 2 of the Oregon Constitution. The Court then
considered whether the relevant statutory and constitutional provisions allow the state, in a pre-trial release hearing,
to rely on evidence that may be inadmissible at the criminal trial. Rico-Villalobos contends that the state’s witness
presented hearsay testimony and the state failed to meet its burden of proof in establishing his guilt. The Court held
that Oregon Evidence Code does not apply to security release hearings, nor is there anything in Article I, section 14
of the Oregon Constitution the prohibits the use of hearsay at this type of hearing. ORS 135.240(2)(a) and Article I,
section 14 also define the provision that a defendant charged with murder may be denied bail when the “proof is
evident” or the “presumption strong”. The trial judge may deny bail if the state meets either standard. In the instant
case, with the testimony of the officer, there was adequate information to determine that at trial the evidence
presented would establish a “strong” “presumption” of guilt. Petition for writ of habeas corpus denied.
[Summarized by Erin Cecil-Levine.]
Richards v. Board of Parole
Case No.: S51773 http://www.publications.ojd.state.or.us/S51773.htm
HOLDING: (Opinion by DeMuniz, J.) A party is “adversely affected or aggrieved” for purposes of appellate
jurisdiction if an administrative tribunal denies that party their desired relief.
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Richards was imprisoned for crimes committed in 1980. In 2003, Richards underwent a psychological evaluation
and the Board of Parole (Board) concluded that Richards suffered from a severe emotional disturbance that
constituted a danger to the health or safety of the community and deferred Richards release date 24 months. The
Board also conditioned Richards’s release upon another psychological evaluation. Richards sought administrative
review of his deferred release date arguing that under former OAR 255-60-101(2), the Board could not extend his
parole for more than 12 months. The Board then altered Richards’s release date to 12 months. Richards again
sought administrative review, this time arguing that the condition of another psychological examination actually
postponed his release date by more than 12 months. The Board denied Richard’s appeal. Richards sought judicial
review of the Board’s denial in the Court of Appeals. The Court of Appeals dismissed the petition for judicial
review by order after finding that Richards was not “adversely affected or aggrieved” by the challenged order. The
Supreme Court held that, because the Board had denied Richards’s appeal, Richards had been adversely affected or
aggrieved. Given that Richards had been adversely affected or aggrieved, the Court held that the Court of Appeals
had proper jurisdiction to review Richards’s petition and thus erred when it dismissed Richards’s request for review.
Reversed and remanded. [Summarized by Rachel Arnold.]
OREGON COURT OF APPEALS
State v. Roller
Case No.: A123461 http://www.publications.ojd.state.or.us/A123461.htm
AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by Schuman, J.) Testimony admitted to rebut an affirmative defense of mistake was harmful
because it was not about a similar incident and the evidence went to a key fact at issue, not a tangential matter.
Roller was convicted of unlawful sexual penetration and sexual abuse in the first degree. The only fact at issue was
whether the complainant was physically helpless as the statute requires. The state argued that the complainant was
asleep. Roller’s affirmative “mistake” defense was that he believed the complainant to be awake. On crossexamination of Roller the court allowed evidence of a past incident that occurred when Roller was 9 years old.
First, the line of questioning that the trial court allowed was not similar to the conduct charged and it occurred 7
years prior. Second, the admission of the evidence was harmful because it went directly to the fact at issue, whether
Roller believed the complainant to be asleep, and the trial court allowed the questions because it expected the
testimony to show that Roller knew the complainant was asleep, not a tangential issue. Finally, there was no other
evidence offered by the state to combat that Roller believed the complainant to be asleep and the court did not state
that it relied on other evidence to reach its conclusion. Reversed and Remanded. [Summarized by Megan
Thornton.]
Hinton v. Hill
Case No.: A121726 http://www.publications.ojd.state.or.us/A121726.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Brewer, C.J.) When petitioner's counsel incorrectly advised her regarding sentencing
possibilities, a violation of petitioner's constitutional rights occurred; therefore, petitioner was entitled to new
proceedings at the trial level rather than re-sentencing alone.
Hinton moved for post-conviction relief on the grounds that her trial attorney advised her incorrectly regarding the
consequences of a guilty plea. The post-conviction court agreed and remanded for re-sentencing. The Court of
Appeals reversed, holding that ORS 138.530(1)(a) and its prior ruling in Hartzog v. Keeney required that Hinton's
convictions be voided in order to grant the appropriate relief . The State petitioned for reconsideration, arguing that
Shipman v. Gladden controlled. The Court of Appeals clarified its former opinion by distinguishing Shipman, in
which the petitioner's constitutional rights were denied by the counsel's failure to timely file a notice of appeal. That
failure was meliorated by permitting petitioner to file an appeal. The Court held that Hartzog and its ruling in Moen
v. Peterson control. Those cases, like Hinton's, involved petitioners whose constitutional rights were denied at the
trial level. Therefore, Hinton's rights could only be vindicated by vacating her convictions and permitting her to re-
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engage in trial level proceedings regarding guilt and sentencing. Reconsideration allowed; former opinion clarified
and adhered to as clarified. [Summarized by Laurie Nelson.]
State v. Torres
Case No.: A120024 http://www.publications.ojd.state.or.us/A120024a.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Ortega, J.; dissent by Haselton, P.J.) The trial court properly refused to suppress evidence
discovered in a warrantless search of a residence because the search was supported by probable cause with exigent
circumstances and the emergency aid doctrine.
Steven Torres (Torres) was convicted on drug charges. The charges originated from an incident in which police
were called to an apparent burglary at Torres's home. Officers discovered a stranger on the porch near a broken
window and open door. Circumstances indicated that another person might be present. Police officers entered the
home and, hearing a noise, later the garage. The garage contained a marijuana growing facility. The State requested
reconsideration of the previous Court of Appeals opinion in this case which reversed the trial court's denial of
Torres's motion to suppress. Granting reconsideration, the Court of Appeals withdrew its former opinion and held
that factual inferences made by the trial court were binding on the Court. Furthermore, the officers' objectively
reasonable belief that probable cause existed, along with exigent circumstances, supported the officers' entry into the
residence without a warrant. Similarly, the emergency aid doctrine supported the officers' removal of the locked
door between the house and the garage in an effort to discover whether a person in need of help was located in the
garage. Reconsideration allowed; former opinion withdrawn; affirmed. [Summarized by Laurie Nelson.]
State v. Ferguson
Case No.: A116493 http://www.publications.ojd.state.or.us/A116493a.htm
AREA OF LAW: EVIDENCE
HOLDING: (Opinion by Ortega, J.) Whether an evidentiary error is cognizable on appeal, creating “sufficient
cause” to postpone the trial in order to allow the state to pursue an appeal, is independent of the merits of an
evidentiary question. A hearing on a motion to suppress evidence involves a preliminary question of fact for the
court, therefore hearsay rules do not apply.
The State petitioned for reconsideration of the Court’s holding that the state invited error when, after losing a
suppression motion, the state advised the trial court to dismiss the charges against defendant. On reconsideration,
the state argued that case law supported the view that erroneous suppression of evidence may provide the basis for
reversing a dismissal that is based on the suppression of evidence. The Court noted that, more often than not, courts
have treated the propriety of the dismissal as dependant on the correctness of the suppression ruling. The Court
stated that a recent Oregon Supreme Court decision supports the Court’s conclusion that it correctly treated the
propriety of the dismissal as distinct from the merits of the state’s evidentiary challenge. The Court concluded the
invited error doctrine should not apply because of uncertainties in case law and no inherent unfairness in reversing
the dismissal order. On the merits, the Court held that the trial court erred in concluding that hearsay evidence could
not be considered in ruling on the motion to suppress because it involved a preliminary question of fact for the court
to decide and hearsay rules did not apply. Reconsideration allowed; former opinion modified in part; former
disposition withdrawn; vacated and remanded. [Summarized by Cristin Casey.]
Pratt v. Armenakis
Case No.: A107068 http://www.publications.ojd.state.or.us/A107068a.htm
AREA OF LAW: POST-CONVICTION RELIEF
HOLDING: (Opinion by Haselton, P. J.) Pursuant to ORAP 6.25(1)(a), the Court of Appeals did not make a factual
error in its decision because there was at least some evidence to support the findings of the trial court. Additionally,
the court, pursuant to ORAP 6.25(1)(e), did not err in construing or applying the law because petitioner did not
challenge the validity of settled Oregon case law on appeal.
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Pratt seeks reconsideration of the Court of Appeals decision affirming the post-conviction court's denial of his
petition for post-conviction relief. Pratt contends that the court "made a factual error in [its] decision," ORAP
6.25(1)(a), and that the court "erred in construing or applying the law," ORAP 6.25(1)(e). Pratt makes three primary
arguments for reconsideration. First, Pratt contends that the court made factual errors regarding his ineffective
assistance of counsel claim when his defense attorney did not question Pratt’s competency after Pratt declined a plea
offer for life imprisonment. Second, Pratt argued that the court erred in concluding that trial counsel did not provide
inadequate assistance when he did not advance a mental disease or defect defense over Pratt’s objection. Third, Pratt
claimed error when the court did not discuss cited due process cases. The court found that there were no factual
errors in the original opinion because review upon reconsideration is limited to determining whether there is any
evidence in the record to support the post-conviction court's findings. The court must simply determine whether any
evidence supports the findings of the trial court; the court concluded that it did. The court also held that it did not
make an error in construing or applying the law because the validity of settled Oregon case law was not challenged
by Pratt on appeal. Finally, in regard to the claim that the court failed to discuss some due process cases, the court
found that because the gravamen of Pratt’s complaint was that counsel was inadequate for failing to request a
hearing pursuant to certain statutes, and given that petitioner never suggested that the statutes did not comport with
due process, the analysis of the cases was complete. Reconsideration allowed; former opinion adhered to.
[Summarized by Kimberly Boswell.]
ARTICLE OF THE WEEK
Sex offender-free zones may face legal battles
Monday, August 22, 2005; Posted: 10:13 a.m. EDT (14:13 GMT)
MIDDLE TOWNSHIP, New Jersey (AP) -- Sex offender Steven Elwell thought he had paid his debt to
society.
He lost his teaching job and served a year in prison for having sex with a 16-year-old female student.
Now, three years out of prison, Elwell wants to move his wife and two children into a bigger house. But they must
find a home outside the sex offender-free zones being established by communities across New Jersey.
At least four towns ban sex offenders from living near schools, parks and playgrounds and others are considering
similar restrictions. At least 14 states have such laws.
"We're outgrowing our house fairly quick," said Elwell, 34. "If we have to move, we'll have to find a map, get a plot
of land and figure out where (the pedophile-free zone) doesn't reach."
Elwell, who owns a pizzeria, doesn't expect sympathy. But he argues the ordinances are too broad, providing a false
sense of security at the expense of ex-cons kept on a tight leash by Megan's Law, the pioneering New Jersey sex
offender registry law.
A growing number of critics agree.
Restricting where sex offenders can live is misdirected and may be unconstitutional, say civil liberties advocates,
defense attorneys and other experts.
"These laws have absolutely nothing to do with the protection of children and everything to do with scare tactics,
cheap political points and an anti-intellectualism that is driving public policy today," said John S. Furlong, a defense
attorney who brought the first court challenge to Megan's Law .
Megan's Law was enacted in response to the 1994 slaying of 7-year-old Megan Kanka by a sex offender who lived
across the street from her. The law prompted dozens of other states to pass similar laws requiring released sex
offenders to register with police and neighbors to be notified.
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High profile cases such as the slaying of 9-year-old Jessica Lunsford in Florida, allegedly by a sex offender who
lived near her home, have prompted lawmakers nationwide to begin establishing "buffer zones" around places where
children congregate.
Concerns about the constitutionality of the bans have not stopped the passage of the laws, in part because of political
pressure.
"It's pretty tough, if someone introduces an ordinance like this, to vote no," said Joseph Scarpelli, mayor of Brick,
New Jersey, which adopted its ordinance August 1.
The ordinance added bus stops to the list of locations off limits to offenders and included a 2,500-foot buffer zone.
With more than 2,000 school bus stops in the town, the measure effectively bars sex offenders from living anywhere
in Brick.
State Attorney General Peter Harvey has said he expects court challenges to the ordinances, although none has been
filed.
For now, Elwell is working at his pizzeria, attending support group meetings for sex offenders and answering to his
state-appointed community supervision officer.
Elwell said he plans to file a civil suit challenging the constitutionality of one or more of the laws targeting sex
offenders, which he says unfairly lump all sex offenders together.
"I see this as adult peer pressure," he said. "All these towns are seeing what other towns are doing and doing it."
FROM THE POND
8/11/2005
[mcadpond] Interfering with a Peace Officer
I've got a case in which the defendant was originally charged with Disorderly Conduct and Interfering with
a Peace Officer. This all stemmed from him being noisier than the officers wanted him to be while they were
investigating his father on Assault IV charges. The Dis Con was no actioned. The Interfering charge ended up as an
EDP offer, and was ultimately dismissed (I believe it was dismissed on Dingle's motion) because the statute's
questionable constitutional validity. About a month later, the DA's office brought back the Interfering charge as an
EDP offer again. The defendant refused the offer and I was appointed. The DA on the case insists that the statute is
constitutional. I'm not convinced. I filed a demurrer and we set it for a hearing. In the meantime, the DA has now
charged him with two additional Interfering charges stemming from the same incident. There is no additional
discovery, and there are no additional facts. The offer went from a relatively small financial obligation to 14 days in
jail plus financial obligations.
Has anyone dealt with similar situations? Has anyone come across issues with the Interfering statute? I'm
considering filing a motion to dismiss based on vindictive/selective prosecution, but I know there will be
ramifications down the line if I do. Has anyone ever done such a motion and succeeded? I'd love to hear thoughts
on this.
Response:
If you are concerned about the "vindictive prosecution" label, why don't you consider filing it as a Freeland
Motion (State v Freeland, 295 OR 367). When State makes choices about how they proceed on particular
individuals, they need to have articulated some uniform criteria in making the decision and followed them.
The EDP or jail differential seems to cry out for an explanation of their rationale. It makes the State try to
explain and justify what they are doing and doesn't necessarily accuse them of bad intentions. Walter Todd
and I did one of these years ago regarding charging Escape cases and we got to question DA's under oath.
He may still remember the case.
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8/9/2005
[Ocdlapond] Privacy and utility records
I thought I had just read a slip opinion saying utility records are private and the police can't legitimately just get
them. Using a few search terms such as "utility" and "suppress" I am drawing a blank.
Response:
http://lawlibrary.rutgers.edu/decisions/appellate/a6101-02.opn.html
The New Jersey court of appeals holds that a homeowner has a reasonable expectation of privacy in
electrical records.
8/10/2005
[Ocdlapond] (another) pcr question
this seems to be an elementary question, but the answer is being frustratingly elusive to me, and i have this nagging
feeling that i'm missing something really obvious:
client pleaded guilty to felony charges and was put on probation. some time later, there was a probation revocation
hearing, probation was revoked and client sent to prison. the pcr allegation is ineffective assistance of counsel at the
pv hearing.
the question is the authority for granting pcr under those circumstances. since this is involves a pv hearing, the
problem is not in any "proceedings resulting in petitioner’s conviction, or in the appellate review thereof" (ORS
138.530(1)(a)); or the jurisdiction of the court ((1)(b)); or the constitutionality of the statute ((1)(d)). which only
leaves (1)(c), relating to the sentence, as the basis for pcr. since the granting of probation in the first place is a
sentence under the guidelines, is the revocation of probation and imposition of a prison term also considered a
"sentence," so that ORS 138.530(1)(c) (sentence not in accordance with the sentence authorized by law, or
unconstitutionality of sentence) applies? if so, it would seem that the argument must be that the ineffective
assistance of counsel at the pv rendered the sentence unconstitutional. the only case(s) i've found discussing the
question are pre-guidelines, suspended imposition of sentence cases.
Response:
Read today's slip opinions. The answer, unfortunately, may be in there.
Response:
thanks. i did, which is what triggered my thinking about it. today's slip opinion (hinton v. hill), however,
doesn't answer the question, since it only deals with pcr under 138.530(1)(a), re: a void conviction. my
question is whether (1)(c) provides a basis for relief. and if not, does she have any remedy at all?
Response:
Good point. The issue may be clouded though, by the apparent requirement to link, if possible, the
substantive claim to one of inadequate assistance of counsel. See Palmer v. State. The required
bootstrapping would seem to necessarily invoke subsection (1)(a) for inadequate assistance of counsel even
in a (1)(c) challenge to the sentence.
Response:
thanks. i agree: my thinking is that if there is a basis for pcr it has to be under (1)(c), regarding sentencing.
so the first question comes down to whether or not the imposition of a prison term upon a probation
revocation is a "sentence" within the contemplation of the pcr statute, given that being put on probation in
the first place is a sentence under the guidelines. if so, the second question is whether the ineffective
assistance of counsel at the pv hearing warrants pcr under (1)(c).
Response:
If client doesn't have a remedy in PCR, then the remedy is in state habeas, isn't it?
Response:
I would think so. Alternatively, it could be mandamus, at least in a case where prevailing wouldn't entitle
defendant to immediate release, but would still shorten his term.
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8/22/2005
[Ocdlapond] Re ORS 809.235(1)(b)
Re Lifetime revocation for 3 misdemeanor convictions (DUI), what are folks getting from judges? Do the 3 DUIs
need to be all within the past 10 years? How is this being applied? Is the statute vague? Any good challenges being
made? Ex Post Facto?
Response:
Revocation occurs with any three Oregon convictions. I take every case to trial and make state prove each
conviction. I collaterally attack prior conviction whenever possible.
Response:
In Josephine county it is any three convictions, EVER. I have tried arguing "within 10 years" but have
been shot down by the judge. I also tried a general - "it's just not fair" argument, but that lost too. The case
I tried both arguments in was sent for appeal, but I don't know if they will take it or not. The language in
the statute seems pretty clear that it can be any three convictions.
5/12/2005
[Ocdlapond] PPS question
potential client is on post-prison supervision, with conditions including sex offender package. by his calculation, he
should not be on post-prison supervision at all anymore, and he's probably right about that. he has filed for
administrative review. the board told him that he can expect review at some point in the indefinite future, but it
is likely to be many months down the road. in the meantime, he is having to shell out a substantial amount of $$ for
treatment providers. is there any way he can get the (arguable, at least) illegality of his continued pps before a court
without first exhausting his administrative remedies? does the fact that the administrative remedies are glacially
slow (needlessly costing him a bunch of money and subjecting him to plethysagraphs and such) play into the
analysis?
Response:
I am not so sure this is a Board problem. My understanding is that it is actually DOC that does the sentence
calculation, and the Board simply relies on that calculation and incorporates it into the BAF. That being so,
administrative review and judicial review of the BAF might not accomplish anything, even if you're right. I
recommend either mandamus to require DOC to properly execute the judgment/calculate the sentence or an
action for declaratory judgment, which would decree that the sentence has expired by operation of law.
Response:
While Andy might be correct, it appears to me that this is not a question of the time that the person served
in the institution but rather the time that he will serve on PPS. I think that it is the Board that sets the Post
Prison Supervision (in this case misapplied from the judgment order) and it will be the Board that revokes
this person if he gets in trouble without changing the June, 2009 date, so I think he must or at least should
seek ad. review and judicial review if he does not get relief from the Board on administrative review. I am
missing something here however how can the Board legally from the judgment that you are stating only
take count 2 into account? Physically in joint for 58 months, 60 months pps means to me 2 months of post
prison supervision.
Response:
I agree. Best to challenge this on all fronts. Even if PPS expired by operation of law, client would be
better off not having to wait in custody on an unlawful revocation to find out.
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