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State v. Walsh

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSHUA VINCENT WALSH, Defendant-Appellant.

          Submitted August 23, 2016

         Multnomah County Circuit Court 120733317; A155201 Kathleen M. Dailey, Judge.

          Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, fled the opening brief for appellant. John Vincent Walsh fled the reply and supplemental briefs pro se.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General, fled the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Susan G. Howe, Assistant Attorney General.

          Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for robbery, burglary, feeing or attempting to elude a police officer, reckless driving, unlawful possession of heroin, and recklessly endangering another person. Defendant contends that the trial court erred in disallowing his demurrer because the indictment failed to demonstrate on its face that the charges were properly joined under ORS 132.560(1)(b). Held: The trial court erred because the indictment did not allege joinder either in the language of ORS 132.560(1)(b) or by alleging facts sufficient to establish compliance with that statute. The error was harmless as to the convictions for robbery and burglary, but not as to the other counts.

         Convictions on Counts 7, 8, 9, 10, and 11 reversed; remanded for resentencing; otherwise affirmed.

         [288 Or.App. 332] DEHOOG, P. J.

         Defendant appeals a judgment convicting him of first-degree robbery (Count 4), ORS 164.415; first-degree burglary (Count 5), ORS 164.225; second-degree robbery (Count 6), ORS 164.405; fleeing or attempting to elude a police officer (Count 7), ORS 811.540; reckless driving (Count 8), ORS 811.140; unlawful possession of heroin (Count 9), ORS 475.854; and recklessly endangering another person (Counts 10 and 11), ORS 163.195.[1] Those charges arose out of a series of connected events, but the indictment did not reflect any such connection. On appeal, defendant contends that, because the indictment failed to demonstrate on its face that the charges were properly joined, the trial court erred when it disallowed his demurrer. For the reasons that follow, we agree that the trial court erred and that, as to several counts, its error was not harmless. Accordingly, we reverse on Counts 7, 8, 9, 10, and 11, remand for resentencing, and otherwise affirm.[2]

         For context, we begin by reviewing the relevant statutory and decisional law, together with the specific allegations of the indictment, noting that, as we "have repeatedly held ***, a court 'may consider only the information alleged in the indictment'" when ruling on a demurrer. State v. Waters. 273 Or.App. 665, 667, 359 P.3d 526 (2015) (quoting State v. Cervantes. 232 Or.App. 567, 573, 223 P.3d 425 (2009)). We review the denial of a demurrer for errors of law. State v. Marks. 286 Or.App. 775, 780, 400 P.3d 951 (2017).

         Under ORS 135.630(2), a defendant may demur to the indictment "when it appears upon the face thereof" that the indictment "does not substantially conform to the requirements of ORS 132.510 to ORS 132.560 [.]" One such requirement arises from ORS 132.560(1)(b), which allows a single charging instrument to allege multiple offenses

         "if the offenses charged are alleged to have been committed by the same person or persons and are:

[288 Or.App. 333] "(A) Of the same or similar character;
"(B) Based on the same act or transaction; or
"(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme ...

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