Submitted June 30, 2017.
Jackson County Circuit Court 122257FE; Lorenzo A. Mejia,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sara F. Werboff, Deputy Public Defender, Office of Public
Defense Services, filed the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jennifer S. Lloyd, Assistant Attorney General,
filed the brief for respondent.
Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock,
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.
of judgment ordering forfeiture of the firearms reversed;
Or.App. 49] HADLOCK, J.
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.
BACKGROUND AND PROCEDURAL HISTORY
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
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.
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.
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.
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. 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).
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
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" in support of the motion and asserted that
the firearms ...