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Molette v. Nooth

Court of Appeals of Oregon

April 18, 2018

TROY JAMES MOLETTE, Petitioner-Appellant,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and Submitted June 28, 2016

          Malheur County Circuit Court 1401674P; J. Burdette Pratt, Senior Judge.

          Jed Peterson argued the cause for appellant. With him on the brief was O'Connor Weber LLP.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeHoog, Presiding Judge, and James, Judge, and Edmonds, Senior Judge. [*]

         Case Summary: Petitioner appeals a judgment denying his petition for post-conviction relief. Petitioner was convicted of second-degree sex abuse, ORS 163.425, and sentenced to life in prison under Oregon's recidivist sex offender sentencing statute, ORS 137.719. On appeal, petitioner argues that trial counsel was inadequate and ineffective in failing to object to the court's imposition of a life sentence under ORS 137.719 because the statutory predicates for such a sentence were absent.

         Held: ORS 137.719 enhances the sentence for certain sex crimes for defendants who have previously been sentenced for comparable offenses in Oregon, or other jurisdictions. For purposes of ORS 137.719, whether a foreign adjudication constitutes a "sentence" is determined by the law of the jurisdiction where the predicate crime was adjudicated. In this case, trial counsel's performance was constitutionally inadequate and ineffective, and that deficiency prejudiced petitioner because under Texas law, petitioner's two prior adjudications did not result in sentences within the meaning of ORS 137.719.

          [291 Or.App. 427] JAMES, J.

         Petitioner appeals a judgment denying his petition for post-conviction relief. Petitioner was convicted of second-degree sex abuse, ORS 163.425, and sentenced to life in prison under Oregon's repeat sex offender sentencing statute, ORS 137.719, which states in part:

"(1) The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.
“* * * *
"(3) For purposes of this section:
"(a) Sentences for two or more convictions that are imposed in the same sentencing proceeding are considered to be one sentence; and
"(b) A prior sentence includes:
"(A) Sentences imposed before, on or after July 31, ...

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