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State v. Dallavis

Court of Appeals of Oregon

October 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSHUA ANTHONY DALLAVIS, Defendant-Appellant.

          Argued and submitted August 30, 2017.

          Lane County Circuit Court 201500520; Curtis Conover, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of conviction for furnishing alcohol to a person under 21 years of age (Count 1) and first-degree rape (Count 2). Defendant argues that the "trial court erred when it permitted defendant to be tried on the indictment to which it had allowed a demurrer." Defendant also argues that the "trial court erred when it denied defendant's eligibility for sentence modification programs on Count 2." Held: Defendant failed to preserve his first argument, because he did not object to being tried on the indictment after the trial court allowed his demurrer only as to Count 4. Additionally, because defendant indicated his willingness to be tried on the remaining charges in the indictment, he invited any error. As to defendant's second argument, the trial court erred when it denied defendant's eligibility for sentence modification programs for the entire period of defendant's sentence on Count 2.

         Remanded for resentencing; otherwise affirmed.

         [294 Or.App. 568] TOOKEY, J.

         Defendant appeals a judgment of conviction for furnishing alcohol to a person under 21 years of age and first-degree rape, raising nine assignments of error. We reject defendant's second through eighth assignments of error without discussion. In defendant's first assignment of error, defendant argues that the "trial court erred when it permitted defendant to be tried on the indictment to which it had allowed a demurrer." In his ninth assignment of error, defendant contends that the "trial court erred when it denied defendant's eligibility for sentence modification programs on Count 2." We conclude that defendant failed to object to being tried on the indictment after the trial court allowed his demurrer only as to Count 4 and, therefore, defendant did not preserve that argument. We further conclude that the trial court erred in denying defendant's eligibility for sentence modification programs for the entire period of defendant's 120-month sentence on Count 2. Accordingly, we remand for resentencing and otherwise affirm.

         I. BACKGROUND

         The pertinent facts are mostly procedural and, for our purposes, undisputed.[1] Defendant was indicted on one count of furnishing alcohol to a person under 21 years of age, ORS 471.410 (Count 1), one count of first-degree rape, ORS 163.375 (Count 2), one count of second-degree sexual abuse, ORS 163.425 (Count 3), and one count of failing to report as a sex offender, ORS 163A.040 (Count 4). Defendant filed a demurrer to the indictment, arguing that the state had failed to allege the basis for joining multiple counts in one indictment in the language of the joinder statute. Defendant contended that "ORS 135.630 requires dismissal of an accusatory instrument 'when it appears on the face thereof that the instrument fails to comply with ORS 132.560," and because "the indictment does not expressly allege that the joined offenses were either (1) of the same or similar character, (2) based on the same act or transaction, or (3) based on [294 Or.App. 569] two or more acts or transactions connected together or constituting parts of a common scheme or plan," the "indictment is subject to dismissal." (Boldface in defendant's demurrer.)[2] In the state's objection to defendant's demurrer, the state contended that "[t]here is no requirement [that] the state and the grand jury utilize the language the defendant suggests is necessary."

         At the hearing on defendant's demurrer, defendant reiterated his argument that the language of the joinder statute is "required to be pled in the indictment" and "there's no joinder language whatsoever in the indictment." Defendant contended that "there's no allegation that * * * the failure to register [and] the other new sex offenses are related by any common scheme or plan or part of the same criminal episode in any way or are the same or similar crimes." The state contended that defendant's demurrer turned on whether the court could conclude from the allegations that all of the "conduct is * * * occurring during the same act and transaction." The trial court noted that the first three counts appeared to have occurred during the same act or transaction because they were alleged to have occurred in the same place on December 29, 2014, and all involved the same [294 Or.App. 570] victim. Defendant acknowledged that those counts are "certainly more related in time and circumstances," but argued that Count 4, for failing to report as a sex offender, was "not similar whatsoever" because it did not involve the same victim "and the time is completely different." Defendant then stated that, because "these are improperly joined charges," the "remedy is dismissal of the indictment."

         After taking the matter under advisement, the trial court issued a written opinion and order. The trial court agreed with the state that it need not expressly plead that the charges were part of the same act or transaction and proceeded to determine "whether the four charges in the indictment appear to arise from the same act or transaction." The trial court concluded that Counts 1, 2, and 3, for furnishing alcohol to a minor, first-degree rape, and second-degree sexual abuse, were "properly joined together" as part of the same act or transaction because "[a]ll three incidents are alleged to have been committed by the same defendant against the same victim on [December 29, 2014, ] in this county." Turning to Count 4, the trial court concluded that defendant's alleged failure to report as a sex offender did not appear to be part of the same act or transaction because it "can be proven without any reference to December 29, 2014, the alleged victim, or the crimes alleged in Counts 1, 2, and 3." Because the court could not determine from the face of the indictment that Count 4 was properly joined, it allowed defendant's demurrer "as to Count 4," allowed "[t]he state * * * to refile within 30 days," and ordered defendant to "prepare the necessary judgment."

         The state reindicted defendant for failing to report as a sex offender, and he was convicted of charges stemming from the conduct underlying Count 4 in another case. Additionally, at some point before his trial, defendant prepared a judgment dismissing Count 4 and, when the trial court asked defendant whether "there [is] any further status on" Judge Zennache's ruling that allowed defendant's demurrer on Count 4, defendant agreed with the state that Count 4 "should be ignored by the court" and did not object to being tried on the remaining charges in the indictment. Following a jury trial, defendant was found guilty of [294 Or.App. 571] furnishing alcohol to a minor, ORS 471.410 (Count 1), first-degree rape, ORS 163.375 (Count 2), and second-degree sexual abuse, ORS 163.425 (Count 3).

         At defendant's sentencing hearing, the trial court noted that it had received defendant's proposed judgment of dismissal for Count 4 and that "[w]e discussed Count 4 at the beginning of this case and * * * when we discussed that Judge Zennache granted the defendant's demurrer to that count *** it was then reported to me that it's been dealt with." The court then proceeded to impose sentences on the remaining counts. The trial court merged the guilty verdict on Count 3, for second-degree sexual abuse, into the guilty verdict on Count 2, for first-degree rape. On Count 2, the trial court sentenced defendant to serve a 120-month sentence pursuant to the Oregon Sentencing Guidelines and made 100 months of that sentence a determinate sentence pursuant to ORS 137.700.[3] As to Count 1, for furnishing alcohol to a minor, the trial court sentenced defendant to a 10-day jail term to be served concurrently with his sentence on Count 2.

         The state objected to defendant receiving anything less than a 120-month determinate sentence. The state contended that, under ORS 137.700, "the language saying that the sentence should not be subject to reduction" means "that whatever the sentence is [defendant] is not eligible for earned time reductions, and if the sentence is higher than the mandatory minimum, nothing in that statutory scheme is meant to reduce the sentence." Defendant contended that, "the court has discretion under the statutes to allow good time on any amount over the Measure 11 time." The trial court agreed with the state and ruled that "[t]he sentence will be 120 months without any reduction of good time or other alternative sanctions or any reduction whatsoever."

         [294 Or.App. 572] II. ANALYSIS

         A. Defendant's Demurrer to the Indictment

         On appeal, in his first assignment of error, defendant argues that the "trial court erred when it permitted defendant to be tried on the indictment to which it had allowed a demurrer." Defendant does not contest the trial court's conclusion that Counts 1, 2, and 3 were properly joined as part of the same act or transaction, but he contends that ORS 135.660 and ORS 135.670(1) required the trial court to dismiss the entire indictment, instead of only allowing defendant's demurrer on Count 4.[4] The state argues that defendant "did not preserve a challenge to his trial on the charges that remained after the court" allowed defendant's demurrer on Count 4 because "[d]efendant did not object to the court's partial grant of the demurrer," he failed to "prepare a judgment ...


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