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State v. Savinskiy

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
YEVGENIY PAVLOVICH SAVINSKIY, Defendant-Appellant.

          Submitted on remand July 27, 2016.

         Clatsop County Circuit Court 121059; On remand from the Oregon Supreme Court, State v. Savinskiy, 359 Or. 847, 838 P.3d 847 (2016). Philip L. Nelson, Judge.

          Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the opening brief for appellant. On the supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the answering brief for respondent. On the supplemental briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for crimes related to a shoot-out and police chase, as well as a conspiracy to murder two witnesses and assault a prosecutor involved in the subsequent prosecution of those crimes. The Court of Appeals initially affirmed without opinion. State v. Savinskiy, 272 Or.App. 664, 358 P.3d 1008 (2015), vac'd and rem'd, 359 Or. 847, 838 P.3d 847 (2016). Defendant petitioned for review, and the Supreme Court vacated that decision and remanded. On remand, the Court of Appeals was asked [286 Or.App. 233] to consider anew whether, in light of State v. Prieto-Rubio, 359 Or. 16, 376 P.3d 255 (2016), the trial court erred when it partially denied defendant's motion to suppress statements that he made to a cellmate, who was acting on behalf of the state and without notice to defendant's counsel, regarding his involvement in new potential conspiracy crimes.

         Held:

         It was reasonably foreseeable that the cellmate's questioning of defendant about defendant's uncharged conspiracies would result in the discovery of incriminating information about charges for which defendant had already obtained counsel. As a result, that questioning violated defendant's right to counsel under Article I, section 11, of the Oregon Constitution.

         Conviction on Counts 1, 2, 7, 17, 18, and 19 reversed and remanded; remanded for resentencing; otherwise affirmed.

         [286 Or.App. 234] SHORR, J.

         Defendant appeals a judgment of conviction for: two counts of attempted murder (Counts 1 and 2), ORS l6l.4O5(2)(a); one count of fleeing or attempting to elude a police officer while in a motor vehicle (Count 5), ORS 811.540(1); one count of identity theft (Count 6), ORS 165.800; one count of attempted possession of a silencer (Count 7), ORS l6l.4O5(2)(c); five counts of recklessly endangering another person (Counts 9 to 13), ORS 163.195; two counts of conspiracy to commit murder (Counts 17 and 18), ORS l6l.45O(2)(a); and one count of conspiracy to commit assault in the first degree (Count 19), ORS l6l.45O(2)(a). We initially affirmed the trial court without opinion. State v. Savinskiy, 272 Or.App. 664, 358 P.3d 1008 (2015), vac'd and rem'd, 359 Or. 847, 838 P.3d 847 (2016). Defendant petitioned for review, and the Supreme Court vacated our decision and remanded the case to us for reconsideration in light of State v. Prieto-Rubio, 359 Or. 16, 376 P.3d 255 (2016).

         On remand, we are asked to consider anew whether the trial court erred when it partially denied defendant's motion to suppress. When denying the motion to suppress in part, the trial court concluded that the state did not violate defendant's right to counsel under Article I, section 11, of the Oregon Constitution when defendant's cellmate, who was acting on behalf of the state and without notice to defendant's counsel, asked defendant about his involvement in new potential conspiracy crimes. At the time of defendant's cellmate's questioning, defendant had previously been arrested, charged, and retained counsel for crimes related to defendant's participation in a shoot-out and police chase. Applying the Supreme Court's reasoning in Prieto-Rubio, we hold that it was reasonably foreseeable that the informant's questioning of defendant regarding defendant's uncharged conspiracies would result in the discovery of incriminating information regarding charges for which defendant had already obtained counsel and, accordingly, reverse and remand defendant's convictions that were affected by the trial court's error in denying the motion to suppress and otherwise affirm.

         [286 Or.App. 235] We review the denial of a motion to suppress for legal error and defer to the trial court's findings of historical fact if there is constitutionally sufficient evidence in the record to support them. State v. Plew,255 Or.App. 581, 583, 298 ...


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