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State v. Fenton

Court of Appeals of Oregon

September 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
COREY SHANE FENTON, Defendant-Appellant.

          Submitted June 30, 2017.

          Jackson County Circuit Court 122257FE; Lorenzo A. Mejia, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary: Following a conviction of conspiracy to commit fourth-degree assault, defendant appeals an amended judgment that requires him, as a special condition of probation, to forfeit seven firearms that law-enforcement officers seized when they executed a search warrant. Defendant argues both that the state failed to follow required criminal-forfeiture procedures and that the trial court could not properly impose forfeiture as a condition of his probation. Held: The trial court erred. The state did not meet fundamental statutory requirements for criminal forfeiture and, even if the criminal forfeiture were otherwise appropriate, the court could not properly make that forfeiture a special condition of defendant's probation.

         Portion of judgment ordering forfeiture of the firearms reversed; otherwise affirmed.

         [294 Or.App. 49] HADLOCK, J.

         In this procedurally idiosyncratic criminal case, defendant was convicted of conspiracy to commit fourth-degree assault. He appeals an amended judgment that requires him, as a special condition of probation, to forfeit seven firearms that law-enforcement officers seized when they executed a search warrant. Defendant argues both that the state failed to follow required criminal-forfeiture procedures and that the trial court could not properly impose forfeiture as a condition of his probation. In response, the state asserts that defendant's challenge to the forfeiture is not properly before this court because defendant could have appealed-but did not appeal-an earlier order denying his motion to return the seized firearms. Alternatively, the state argues that the weapons were not forfeited pursuant to the criminal-forfeiture statutes in defendant's case but were, instead, forfeited as contraband in the codefendant's case. Accordingly, the state asserts, defendant has no lawful right to possess the weapons and was not entitled to their return. For the reasons set out below, we reverse the portion of the amended judgment that requires defendant to forfeit the firearms, and we otherwise affirm.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The facts pertinent to this appeal relate to the seizure of defendant's firearms and defendant's various efforts to recover them. Those facts, which we discuss at length below, are mainly procedural and are not in dispute. Rather, the parties' arguments raise purely legal questions. We therefore review the trial court's rulings for legal error. To provide background, however, we briefly outline defendant's criminal conduct and, because defendant was convicted, we describe those facts in the light most favorable to the state. State v. Woods, 284 Or.App. 559, 561, 393 P.3d 1188, rev den, 361 Or. 801 (2017).

         In May 2012, defendant and his father (Gann) visited a woman named Blanco and asked her to assault another woman, Crenshaw. Defendant and Gann proposed to give Blanco some marijuana in payment. Law enforcement officers learned about the proposed assault and spoke with Gann, who subsequently told Blanco not to commit the [294 Or.App. 50] assault because "we got ratted on." Officers obtained a warrant to search Gann's house, where defendant then lived. When they executed the warrant, officers found growing and dried marijuana, as well as other evidence related to defendant's relationship with Crenshaw and the proposed assault on her. Officers also found guns in a safe in Gann's bedroom; defendant later told an officer that the guns belonged to him (defendant) and suggested that he had put the guns in Gann's bedroom to keep them away from other individuals in the house.

         In a single indictment, defendant and Gann were charged jointly with solicitation (Count 1) and conspiracy (Count 2); those charges related to their plan to have Blanco assault Crenshaw. Gann alone was charged with three marijuana crimes (Counts 3 through 5) and seven counts of felon in possession of a firearm (FIP) (Counts 6 through 12). In Count 13 of the indictment, the state sought criminal forfeiture of $1194 as proceeds of one or more of the other counts alleged.

         Gann eventually pleaded no contest to soliciting Blanco to assault Crenshaw, as well as to one count of unlawfully manufacturing marijuana and two counts of FIP. Sentencing in Gann's case was deferred until after defendant's trial.

         Defendant's case was tried to a jury in mid-2015. The jury returned guilty verdicts on Counts 1 and 2, solicitation and conspiracy to commit fourth-degree assault.[1] In July 2015, the court entered a judgment reflecting merger of Counts 1 and 2, resulting in a single conviction for conspiracy to commit fourth-degree assault, a misdemeanor. The judgment in defendant's case reflects dismissal of the criminal forfeiture count (Count 13).

         At defendant's sentencing hearing, the court indicated that it would follow the state's recommendation for two years of probation with 30 days of jail as a probation condition. The court also ordered that defendant would not [294 Or.App. 51] be permitted to possess firearms or other weapons while he was on probation. Defendant then asserted that the firearms that had been seized from the gun safe in Gann's house were defendant's firearms; he asked that the guns be released to a third person, Jepsen. The court indicated that defendant should file a motion, which the court would then review. At that point, the prosecutor stated that she would be seeking "forfeiture of all firearms" in Gann's case.

         Defendant subsequently filed a written motion for return of the firearms that officers had seized in 2012, seeking to have them turned over to Jepsen. Defendant relied on "ORS 133.623-653"[2] in support of the motion and asserted that the firearms ...


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