Submitted on December 28, 2012.
Jackson County Circuit Court 992639FE Raymond B. White, Judge. (Judgment) Lorenzo A. Mejia, Judge. (Amended Judgment)
Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Gabriel David Sills filed the supplemental brief pro se.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant, who was sentenced 10 years after his trial, seeks outright dismissal or a reversal of his convictions for sexual abuse in the first degree, ORS 163.427, and public indecency, ORS 163.465, or else resentencing on the first-degree sexual abuse count. After his conviction in Oregon, defendant fled the jurisdiction. Years later, he was convicted and sentenced in California for other sex offenses and then extradited, sentenced in this case, and returned to continue serving his California sentence.
Defendant now contends that he is entitled to dismissal of his convictions in this case with prejudice because he was not timely sentenced under the Interstate Agreement on Detainers (IAD), ORS 135.775. Defendant also argues, among other things, that he is entitled to a new trial because (1) the trial court erroneously admitted evidence that he had committed another crime and (2) his motion to suppress statements he made after invoking his right to counsel should have been granted. Alternatively, he argues that his 75-month Measure 11 sentence for first-degree sexual abuse is unconstitutionally disproportionate. For the reasons stated below, we decline to consider those assignments of error in which defendant requests a reversal of his convictions for a new trial, based on the former fugitive doctrine, and we reject both defendant's IAD argument and his sentencing argument on their merits. Accordingly, we dismiss the appeal in part and otherwise affirm.
The event relating to the sexual abuse count occurred in June 1999. The victim, H, was a 13-year-old girl who was walking home from school with two friends when she saw defendant walking ahead of them. Defendant turned around, walked by the girls, and grabbed H's breast with his hand for several seconds. The girls eventually ran to a neighboring house and contacted police, and defendant ran off in the other direction.
The event leading to the public indecency count occurred the next day, when defendant exposed himself to J, a 13-year-old girl who was walking home from the school bus stop. As J walked by, defendant leaned his head out of his parked truck and said something. J could not hear defendant, so she went closer to the truck. As she approached, defendant showed her a pornographic magazine and asked her if she wanted it. J said no and began to walk away. Defendant then put down the magazine, exposing himself, rubbed his penis, and asked J, "Do you want some of this Honey?" J then fled, screaming. People nearby were able to get the license plate number of the truck before defendant sped away.
Defendant was arrested the same day and was later indicted for sexual abuse in the first degree, public indecency, and furnishing obscene materials to a minor. Defendant pleaded guilty to public indecency, and a demurrer was granted on the furnishing obscene materials count.
After a jury trial in 2000, defendant was found guilty of sexually abusing H. In that trial, the jury heard evidence concerning the indecent exposure incident involving J. However, before defendant could be sentenced, he fled the jurisdiction. After fleeing, defendant lived in California under an assumed name. When he fled, the $100, 000 in bail that his parents had posted was forfeited.
In 2006, defendant was arrested in California for possession of child pornography and for sex crimes involving a four-year-old girl. The State of Oregon quickly learned in 2006 that defendant had been arrested; however, the state could not secure defendant's return to Oregon until after his pending charges in California were resolved. After his conviction by way of a guilty plea, he was sentenced in California in December 2008, with his earliest parole date in 2021.
After his California sentencing, the Jackson County District Attorney's Office sought a detainer on defendant, and, in April 2009, defendant requested to be brought to "trial" in Oregon under the IAD, although the district attorney never received defendant's demand. Later in 2009, California officials told defendant that the IAD was inapplicable to a sentencing proceeding, and California did not proceed under the IAD.
Ultimately, California returned defendant to Oregon for sentencing in this case. In 2009, the district attorney's office pursued defendant's return for sentencing under the Uniform Criminal Extradition Act, ORS 133.743 to 133.857. In February 2010, the state requested that California return defendant to Oregon in a requisition signed by Governor Kulongoski. See ORS 133.833 (describing process for requisition). Governor Kulongoski, in March 2010, and California Governor Schwarzenegger, in April 2010, then signed an executive agreement for defendant's extradition. It provided that defendant would be transported to Oregon for sentencing and then returned to California to serve the remainder of his California sentence. See ORS 133.835 (governing extradition of person imprisoned in another state through executive authority of that state and the Governor).
Defendant was returned to Oregon in May 2010. At his Oregon sentencing, defendant acknowledged that he left the state to avoid being sentenced. On the public indecency conviction, the sentencing court sentenced defendant to a jail term to run concurrently with his sentence in California. On the first-degree sexual abuse conviction, the court sentenced him to serve a Measure 11 sentence of 75 months, consecutive to his sentence in California. ...