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State v. Diaz-Avalos

Court of Appeals of Oregon

September 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JUAN DIAZ-AVALOS, aka Juan Avalos Diaz, aka Juan Diazavalos, Defendant-Appellant.

          Argued and submitted June 30, 2017.

          Multnomah County Circuit Court 030934268; David F. Rees, Judge.

          Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         Case Summary: Defendant unsuccessfully moved for DNA testing under ORS 138.690 (2011), amended by Or Laws 2015, ch 564, § 1. He appeals the trial court's order denying the request for DNA testing on two grounds. First, defendant contends that, having previously entered an order granting the motion, the trial court erred when it later withdrew that order and denied defendant's request for testing. Second, defendant asserts that he met his burden of presenting a prima facie case of actual innocence and, thus, the trial court was required to order testing. Held: The trial court did not err. First, under State v. Ainsworth, 346 Or. 524, 540, 213 P.3d 1225 (2009), the court had authority to set aside the order that the state had failed to appeal. Second, defendant did not establish the logical relationship between the presumed exculpatory DNA results and his theory of defense necessary for a prima facie showing of actual innocence.

         [294 Or.App. 38] HADLOCK, J.

         Defendant unsuccessfully moved for DNA testing under ORS 138.690 (2011).[1] He appeals the trial court's order denying the request for DNA testing on two grounds. First, defendant contends that, having previously entered an order granting the motion, the trial court erred when it later withdrew that order and denied defendant's request for testing. Second, defendant asserts that he met his burden of presenting a prima facie case of actual innocence; that showing, defendant argues, triggered "the trial court's duty to order testing." We disagree with defendant on both points and, accordingly, affirm.

         The pertinent facts are undisputed. Defendant was convicted in 2004 of, among other things, first-degree manslaughter. He received a sentence of 120 months in prison followed by 36 months of post-prison supervision. The convictions arose from a hit-and-run accident between defendant's truck and a bicycle, which the truck dragged for some distance after the crash. Based on witness descriptions of the truck, police stopped defendant-who then was driving the truck-half an hour after the accident was reported. Defendant admitted to being intoxicated. Defendant told police that he had been drinking with an acquaintance and that, after defendant had fallen asleep, that other person had used defendant's truck to go pick up more alcohol. According to defendant, the acquaintance had returned the truck in a damaged condition, the two had argued, and defendant had driven the truck away. Defendant was wearing a blue jacket when police stopped him; he said the jacket belonged to the acquaintance.

         [294 Or.App. 39] On direct appeal, we affirmed defendant's conviction without opinion. State v. Diaz-Avalos, 206 Or.App. 769, 140 P.3d 582, rev den, 342 Or. 117 (2006). Defendant then petitioned for post-conviction relief, which the post-conviction court denied. We also affirmed that decision without opinion. Diaz-Avalos v. Belleque, 241 Or.App. 723, 250 P.3d 992, rev den, 350 Or. 408 (2011). Defendant then petitioned for habeas corpus relief in federal court. The district court denied defendant's petition.

         During the federal habeas corpus litigation, the district court authorized defendant's counsel to assist defendant in seeking DNA testing under Oregon's DNA testing statutes. Defendant filed a state-court motion requesting DNA testing in November 2012. A supporting affidavit clarified that defendant believed there was "a reasonable possibility that the jacket [found on defendant at the time of his arrest] contains DNA evidence that can support [defendant's] position that he was not the driver that killed the victim in his case." Defendant did not follow the process set by local rule for scheduling a hearing on the motion, and the state did not file a response to it. The trial court granted defendant's motion without a hearing in September 2013, the month after defendant was released on post-prison supervision.

         In late 2014, the state filed a motion asking the trial court to set aside its order granting defendant's motion requesting DNA testing; the state based that motion on defendant having not followed the process to set the motion for hearing and the court not having asked the state to file a response to the motion. Following a hearing, the trial court set aside its previous order granting defendant's motion for testing. The court did so based on its determination that it had committed "an error" by issuing the order for DNA testing without first holding a hearing and "notwithstanding the fact that * * * [the court] was waiting around for a response" from the state. The court issued an order to that effect in April 2015.

         Defendant appealed the trial court's order setting aside its previous order. The appellate commissioner initially ruled that the order was not appealable; however, defendant [294 Or.App. 40] sought reconsideration, and the commissioner ultimately gave the trial court leave "to enter an order explicitly denying appellant's motion for DNA testing[.]" The trial court then entered an order denying defendant's motion requesting DNA testing in February 2017, and defendant promptly gave notice of his intent to proceed with this appeal. By that time, defendant had completed serving his term of post-prison supervision.

         Before describing the arguments that the parties make on appeal, we provide an overview of Oregon's statutory DNA-testing scheme. At the time defendant filed his motion ...


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