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State v. Kinney

Court of Appeals of Oregon

August 13, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
WILLIAM KINNEY; aka William Kenney; aka William Kinney, III, Defendant-Appellant

Argued and Submitted, March 20, 2013

Multnomah County Circuit Court. 070733501, 100532040. Leslie M. Roberts, Judge.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. William Kinney III filed the supplemental brief pro se.

Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 1130

WOLLHEIM, J.

[264 Or.App. 614] Defendant appeals his judgments of conviction in two cases that were consolidated for trial. In Multnomah County Case Number 070733501 (Case 1), he was convicted of one count of unlawful possession of cocaine, ORS 475.884, and one count of driving while suspended or revoked, ORS 811.182(3), and in Multnomah County Case Number 100532040 (Case 2), he was convicted of one count of driving while suspended or revoked, ORS 811.182(3). He raises four assignments of error. In his first two assignments of error, he argues that the trial court erred when it failed to allow the jury to determine whether the two counts for driving while suspended or revoked were Class B felonies under ORS 811.182.[1] In his third assignment of error, he argues that the court erred in denying his request to represent himself at trial,[2] and in his fourth assignment of error, he argues that the court erred in doubling his sanctions for summary contempt. We reverse and remand on the fourth assignment of error, and otherwise affirm.

Defendant's convictions in these cases arose from two separate incidents. The incident in Case 1 occurred in 2007. A police officer, in the course of investigating a noise complaint, found defendant asleep in the driver's seat of a van with the engine running and the keys in the ignition. The incident in Case 2 occurred in 2010 while defendant was driving a vehicle with two passengers. While defendant was stopped at an intersection, a police officer, sitting at a bus shelter at the intersection, recognized one of defendant's passengers as someone with multiple outstanding arrest [264 Or.App. 615] warrants. After observing defendant turn at the intersection without using his turn signal, the officer contacted other officers to stop defendant for the traffic violation. In both the 2007 and 2010 incidents, officers determined that defendant was driving while his license was revoked.

In his first two assignments of error, defendant argues that the court erred in entering two felony convictions for driving while

Page 1131

suspended, pursuant to ORS 811.182(3). ORS 811.182(3) makes driving while suspended or revoked a felony if the suspension or revocation resulted from certain circumstances, one of which is " any degree of * * * assault from the operation of a motor vehicle." At trial, the court admitted two certified copies (one for each case) of defendant's driving record from Driver and Motor Vehicle Services Division of the Oregon Department of Transportation, which indicated that defendant, on November 8, 2002, had been convicted for assault with a motor vehicle and failure to perform the duties of a driver. The record also included evidence that defendant's license was already suspended for previous traffic violations, that his license was " still suspended" in connection with the November 8, 2002, assault conviction, and that his license was also revoked in connection with the November 8, 2002, failure to perform duties of a driver conviction. Prior to instructing the jury, the trial court had the following colloquy with the prosecutor and defense counsel:

" THE COURT: * * * I had a question, this is on the driving while suspended--this is driving while suspended on a felony level, what should the jury be asked to find?
" [THE PROSECUTOR]: [Defense counsel] and I discussed that, we both came to the conclusion that the felony is an issue for the Court to decide, so it doesn't really matter to me one way or the other. The title of the crime, it has already been announced, ...

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