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State v. Murga

Court of Appeals of Oregon

April 25, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVEN ROBERT MURGA, Defendant-Appellant.

          Argued and submitted February 26, 2018

          Yamhill County Circuit Court 16CN02298; John L. Collins, Judge.

          Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals from an order imposing an incarceration sanction for punitive contempt under ORS 33.065. On appeal, defendant contends that because the punitive contempt proceeding originated from a motion and order to show cause, as opposed to an accusatory instrument as provided for in ORS 131.005(1), the trial court lacked subject matter jurisdiction. The state responds that, even if the motion and order to show cause failed to comply with ORS 33.065(5) and ORS 131.005(1), that deficiency did not deprive the court of subject matter jurisdiction. Only in response to the state's argument, for the first time in his reply brief, does defendant advance an alternative argument that, even if the issue is not one of subject matter jurisdiction, the Court of Appeals should address the issue as plain error. Held: A motion and order to show cause is a deficient pleading for purposes of initiation of a punitive contempt action. However, that deficiency did not create an issue of subject matter jurisdiction and the record shows that defendant did, in fact, receive the full panoply of procedural protections appropriate to punitive contempt. Further, the Court of Appeals [291 Or.App. 463] declined to exercise its discretion to review defendant's alternative request for plain error review.

         Affirmed.

         [291 Or.App. 464] JAMES, J.

         Defendant appeals from an order imposing an incarceration sanction for punitive contempt under ORS 33.065. On appeal, defendant contends that because the punitive contempt proceeding originated from a motion and order to show cause, as opposed to an accusatory instrument as provided for in ORS 131.005(1), the trial court lacked subject matter jurisdiction. We conclude that a motion and order to show cause is a deficient pleading for purposes of initiation of a punitive contempt action. However, that deficiency does not create an issue of subject matter jurisdiction. Further, we decline defendant's alternative request for plain error review made for the first time in defendant's reply brief. Accordingly, we affirm.

         The underlying facts are not in dispute. At the time of the conduct in question, a valid restraining order existed preventing contact between defendant and his former wife. Defendant was incarcerated on unrelated matters in Yamhill County. In late April and early May, his wife received several forwarded voicemails each day from defendant. Also, his wife received a voicemail from a third party, who asked defendant's wife to deposit money into defendant's jail account and to answer defendant's telephone calls.

         In addition to the voicemails, defendant's wife received two letters addressed to "S Hot Mail" and "Baby Girl." In one letter, defendant wrote, "I want us to get back together" and expressed interest in wanting to be "your husband." Yamhill County Jail deputies intercepted a third letter before it could be delivered.

         The district attorney filed a "Motion to Show Cause for Violation of Restraining Order Seeking Punitive Sanctions." The motion did not allege separate counts, but listed nine "dates of incident" and included an attached affidavit and probable cause statement that described defendant's conduct. Based on that motion, the trial court issued an Order to Show Cause "why [defendant] should not be found in contempt for violation of the court's domestic abuse restraining order and punitive sanctions * * * imposed."

         [291 Or.App. 465] The state arraigned defendant on the contempt allegation, and the trial court ultimately found defendant in contempt of court on Counts 1 and 3 through 10 and imposed punitive sanctions. The court imposed a fixed term of 10 days ...


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